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Cherokee Nation v. Georgia (Part Four)


THOMPSON, Dissenting Opinion

Mr. Justice THOMPSON, dissenting.

Entertaining different views of the questions now before us in this case, and having arrived at a
conclusion different from that of a majority of the Court, and considering the importance of the
case and the constitutional principle involved in it, I shall proceed, with all due respect for the
opinion of others, to assign the reasons upon which my own has been formed.

In the opinion pronounced by the Court, the merits of the [p*51] controversy between the State
of Georgia and the Cherokee Indians have not been taken into consideration. The denial of the
application for an injunction has been placed solely on the ground of want of jurisdiction in this
Court to grant the relief prayed for. It became, therefore, unnecessary to inquire into the merits of the case. But thinking as I do that the Court has jurisdiction of the case, and may grant relief, at
least in part, it may become necessary for me, in the course of my opinion, to glance at the merits
of the controversy, which I shall, however, do very briefly, as it is important so far as relates to
the present application.

Before entering upon the examination of the particular points which have been made and argued,
and for the purpose of guarding against any erroneous conclusions, it is proper that I should state
that I do not claim for this Court the exercise of jurisdiction upon any matter properly falling
under the denomination of political power. Relief to the full extent prayed by the bill may be
beyond the reach of this Court. Much of the matter therein contained by way of complaint would
seem to depend for relief upon the exercise of political power, and, as such, appropriately
devolving upon the executive, and not the judicial department of the government. This Court can
grant relief so far only as the rights of person or property are drawn in question, and have been
infringed.

It would very ill become the judicial station which I hold to indulge in any remarks upon the
hardship of the case, or the great justice that would seem to have been done to the complainants
according to the Statement in the bill, and which, for the purpose of the present motion I must
assume to be true. If they are entitled to other than judicial relief, it cannot be admitted that, in a
Government like ours, redress is not to be had in some of its departments, and the responsibility
for its denial must rest upon those who have the power to grant it. But believing as I do that relief
to some extent falls properly under judicial cognizance, I shall proceed to the examination of the
case under the following heads.

1. Is the Cherokee Nation of Indians a competent party to sue in this Court? [p*52]

2. Is a sufficient case made out in the bill to warrant this Court in granting any relief?

3. Is an injunction the fit and appropriate relief?

1. By the Constitution of the United States it is declared (Art. 3, SS 2), that the judicial power
shall extend to all cases in law and equity, arising under this Constitution, the laws of the United
States, and treaties made or which shall be made under their authority; &c. to controversies
between two or more States, &c. and between a State or the citizens thereof and foreign states,
citizens or subjects.

The controversy in the present case is alleged to be between a foreign state and one of the States
of the union, and does not, therefore, come within the Eleventh Amendment of the Constitution,
which declares that the judicial power of the United States shall not be construed to extend to any
suit in law or equity commenced or prosecuted against one of the United States by citizens of
another State, or by citizens or subjects of any foreign state. This amendment does not,
therefore, extend to suits prosecuted against one of the United States by a foreign state. The
Constitution further provides that, in all cases where a State shall be a party, the Supreme Court
shall have original jurisdiction. Under these provisions in the Constitution, the complainants
have filed their bill in this Court, in the character of a foreign state, against the State of Georgia;
praying an injunction to restrain that State from committing various alleged violations of the
property of the Nation, claimed under the laws of the United States, and treaties made with the
Cherokee Nation.

That a State of this union may be sued by a foreign state when a proper case exists and is
presented is too plainly and expressly declared in the Constitution to admit of doubt; and the first
inquiry is whether the Cherokee Nation is a foreign state within the sense and meaning of the
Constitution.

The terms “state” and “nation” are used in the law of nations, as well as in common parlance, as
importing the same thing, and imply a body of men, united together to procure their mutual
safety and advantage by means of their union. Such a society has its affairs and interests to
manage; it deliberates, and takes resolutions in common, and thus becomes a moral [p*53]
person, having an understanding and a will peculiar to itself, and is susceptible of obligations
and laws. Vattel 1. Nations being composed of men naturally free and independent, and who,
before the establishment of civil societies, live together in the state of nature, nations or sovereign
states, are to be considered as so many free persons, living together in a state of nature. Vattel 2,
SS 4. Every nation that governs itself, under what form soever, without any dependence on a
foreign power is a sovereign state. Its rights are naturally the same as those of any other state.
Such are moral persons who live together in a natural society under the law of nations. It is
sufficient if it be really sovereign and independent—that is, it must govern itself by its own
authority and laws. We ought, therefore, to reckon in the number of sovereigns those states that
have bound themselves to another more powerful, although by an unequal alliance. The
conditions of these unequal alliances may be infinitely varied; but whatever they are, provided the
inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be
considered an independent state. Consequently, a weak state, that, in order to provide for its
safety, places itself under the protection of a more powerful one without stripping itself of the
right of government and sovereignty, does not cease on this account to be placed among the
sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby
cease to be sovereign and independent states, so long as self-government and sovereign and
independent authority is left in the administration of the state. Vattel, c. 1, pp. 16, 17.

Testing the character and condition of the Cherokee Indians by these rules, it is not perceived
how it is possible to escape the conclusion that they form a sovereign state. They have always
been dealt with as such by the Government of the United States, both before and since the
adoption of the present Constitution. They have been admitted and treated as a people governed
solely and exclusively by their own laws, usages, and customs within their own territory,
claiming and exercising exclusive dominion over the same, yielding up by treaty, from time to
time, portions of their land, but still claiming absolute sovereignty and self-government over
what remained unsold. [p*54] And this has been the light in which they have, until recently,
been considered from the earliest settlement of the country by the white people. And indeed, I do
not understand it is denied by a majority of the Court that the Cherokee Indians form a sovereign
state according to the doctrine of the law of nations, but that, although a sovereign state, they are
not considered a foreign state within the meaning of the Constitution.

Whether the Cherokee Indians are to be considered a foreign state or not is a point on which we
cannot expect to discover much light from the law of nations. We must derive this knowledge
chiefly from the practice of our own government and the light in which the Nation has been
viewed and treated by it.

That numerous tribes of Indians, and among others the Cherokee Nation, occupied many parts of
this country long before the discovery by Europeans is abundantly established by history, and it
is not denied but that the Cherokee Nation occupied the territory now claimed by them long
before that period. It does not fall within the scope and object of the present inquiry to go into a
critical examination of the nature and extent of the rights growing out of such occupancy, or the
justice and humanity with which the Indians have been treated, or their rights respected.

That they are entitled to such occupancy so long as they choose quietly and peaceably to remain
upon the land cannot be questioned. The circumstance of their original occupancy is here referred
to merely for the purpose of showing that, if these Indian communities were then, as they
certainly were, nations, they must have been foreign nations to all the world, not having any
connexion, or alliance of any description with any other power on earth. And if the Cherokees
were then a foreign nation, when or how have they lost that character, and ceased to be a distinct
people, and become incorporated with any other community?

They have never been, by conquest, reduced to the situation of subjects to any conqueror, and
thereby lost their separate national existence, and the rights of self-government, and become
subject to the laws of the conqueror. Whenever wars have taken place, they have been followed
by regular treaties of peace, containing stipulations on each side according [p*55] to existing
circumstances; the Indian Nation always preserving its distinct and separate national character.
And notwithstanding we do not recognize the right of the Indians to transfer the absolute title of
their lands to any other than ourselves, the right of occupancy is still admitted to remain in them,
accompanied with the right of self-government according to their own usages and customs, and
with the competency to act in a national capacity although placed under the protection of the
whites, and owing a qualified subjection so far as is requisite for public safety. But the principle
is universally admitted that this occupancy belongs to them as matter of right, and not by mere
indulgence. They cannot be disturbed in the enjoyment of it, or deprived of it without their free
consent, or unless a just and necessary war should sanction their dispossession.

In this view of their situation, there is as full and complete recognition of their sovereignty, as if
they were the absolute owners of the soil. The progress made in civilization by the Cherokee
Indians cannot surely be considered as in any measure destroying their national or foreign
character so long as they are permitted to maintain a separate and distinct government; it is their
political condition that constitutes their foreign character, and in that sense must the term
“foreign” be understood as used in the Constitution. It can have no relation to local,
geographical, or territorial position. It cannot mean a country beyond sea. Mexico or Canada is
certainly to be considered a foreign country in reference to the United States. It is the political
relation in which one government or country stands to another which constitutes it foreign to the
other. The Cherokee territory being within the chartered limits of Georgia does not affect the
question. When Georgia is spoken of as a State, reference is had to its political character, and not
be boundary, and it is not perceived that any absurdity or inconsistency grows out of the
circumstance that the jurisdiction and territory of the State of Georgia surround or extend on
every side of the Cherokee territory. It may be inconvenient to the State, and very desirable that
the Cherokees should be removed, but it does not at all affect the political relation between
Georgia and those Indians. Suppose the [p*56] Cherokee territory had been occupied by
Spaniards or any other civilized people, instead of Indians, and they had from time to time ceded
to the United States portions of their lands precisely in the same manner as the Indians have
done, and in like manner retained and occupied the part now held by the Cherokees, and having a
regular government established there; would it not only be considered a separate and distinct
nation or state, but a foreign nation, with reference to the State of Georgia or the United States. If
we look to lexicographers, as well as approved writers, for the use of the term “foreign,” it may
be applied with the strictest propriety to the Cherokee Nation.

In a general sense, it is applied to any person or thing belonging to another nation or country. We
call an alien a foreigner because he is not of the country in which we reside. In a political sense,
we call every country foreign which is not within the jurisdiction of the same government. In this
sense, Scotland before the union was foreign to England; and Canada and Mexico foreign to the
United States. In the United States, all transatlantic countries are foreign to us. But this is not the
only sense in which it is used.

It is applied with equal propriety to an adjacent territory as to one more remote. Canada or
Mexico is as much foreign to us as England or Spain. And it may be laid down as a general rule
that, when used in relation to countries in a political sense, it refers to the jurisdiction or
government of the country. In a commercial sense, we call all goods coming from any country
not within our own jurisdiction foreign goods.

In the diplomatic use of the term, we call every minister a foreign minister who comes from
another jurisdiction or government. And this is the sense in which it is judicially used by this
Court, even as between the different States of this union. In the case of Buckner v. Finlay, 2
Peters 590, it was held that a bill of exchange drawn in one State of the union on a person living
in another State was a foreign bill, and to be treated as such in the courts of the United States.
The Court says that, in applying the definition of a foreign bill to the political character of the
several States of this Union in relation to each other, we are all clearly of opinion [p*57] that bills
drawn in one of these States upon persons living in another of them partake of the character of
foreign bills, and ought to be so treated. That, for all national purposes embraced by the federal
Constitution, the States and the citizens thereof are one, united under the same sovereign
authority and governed by the same laws. In all other respects, the States are necessarily foreign
to, and independent of, each other, their Constitutions and forms of government being, although
republican, altogether different, as are their laws and institutions. So, in the case of Warder v.
Arrell, decided in the Court of Appeals of Virginia, 2 Wash. 298, the Court, in speaking of
foreign contracts and saying that the laws of the foreign country where the contract was made
must govern, add 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.

It is manifest from these cases that a foreign state, judicially considered, consists in its being
under a different jurisdiction or government, without any reference to its territorial position. This
is the marked distinction, particularly in the case of Buckner v. Finlay. So far as these States are
subject to the laws of the Union, they are not foreign to each other. But so far as they are subject
to their own respective State laws and government, they are foreign to each other. And if, as here
decided, a separate and distinct jurisdiction or government is the test by which to decide whether
a nation be foreign or not, I am unable to perceive any sound and substantial reason why the
Cherokee Nation should not be so considered. It is governed by its own laws, usages and
customs; it has no connexion with any other government or jurisdiction, except by way of
treaties entered into with like form and ceremony as with other foreign nations. And this seems to
be the view taken of them by Mr Justice Johnson in the case of Fletcher v. Peck, 6 Cranch 146;
2 Peters’ Condens. Rep. 308.

In speaking of the State and condition of the different Indian nations, he observes

that some have totally extinguished their national fire, and submitted themselves to the laws of
the States; others have by treaty acknowledged that they hold [p*58] their national existence at
the will of the State within which they reside; others retain a limited sovereignty and the absolute
proprietorship of their soil. The latter is the case of the tribes to the west of Georgia, among
which are the Cherokees. We legislate upon the conduct of strangers or citizens within their
limits, but innumerable treaties formed with them acknowledge them to be an independent
people, and the uniform practice of acknowledging their right of soil by purchasing from them,
and restraining all persons from encroaching upon their territory, makes it unnecessary to insist
upon their rights of soil.

Although there are many cases in which one of these United States has been sued by another, I
am not aware of any instance in which one of the United States has been sued by a foreign state.
But no doubt can be entertained that such an action might be sustained upon a proper case being
presented. It is expressly provided for in the Constitution, and this provision is certainly not to
be rejected as entirely nugatory.

Suppose a State, with the consent of Congress, should enter into an agreement with a foreign
power (as might undoubtedly be done, Constitution, Art. 1, SS 10) for a loan of money; would
not an action be sustained in this Court to enforce payment thereof? Or suppose the State of
Georgia, with the consent of Congress, should purchase the right of the Cherokee Indians to this
territory, and enter into a contract for the payment of the purchase money; could there be a doubt
that an action could be sustained upon such a contract? No objection would certainly be made for
want of competency in that Nation to make a valid contract. The numerous treaties entered into
with the Nation would be a conclusive answer to any such objection. And if an action could be
sustained in such case, it must be under that provision in the Constitution which gives
jurisdiction to this Court in controversies between a State and a foreign state. For the Cherokee
Nation is certainly not one of the United States.

And what possible objection can lie to the right of the complainants to sustain an action? The
treaties made with this Nation purport to secure to it certain rights. These are not gratuitous
obligations assumed on the part of the United States. They are obligations founded upon a
consideration paid by the [p*59] Indians by cession of part of their territory. And if they, as a
nation, are competent to make a treaty or contract, it would seem to me to be a strange
inconsistency to deny to them the right and the power to enforce such a contract. And where the
right secured by such treaty forms a proper subject for judicial cognizance, I can perceive no
reason why this Court has not jurisdiction of the case. The Constitution expressly gives to the
Court jurisdiction in all cases of law and equity arising under treaties made with the United
States. No suit will lie against the United States upon such treaty, because no possible case can
exist where the United States can be sued. But not so with respect to a State, and if any right
secured by treaty has been violated by a State, in a case proper for judicial inquiry, no good
reason is perceived why an action may not be sustained for violation of a right secured by treaty,
as well as by contract under any other form. The judiciary is certainly not the department of the
government authorised to enforce all rights that may be recognized and secured by treaty. In
many instances, these are mere political rights, with which the judiciary cannot deal. But when
the question relates to a mere right of property, and a proper case can be made between
competent parties; it forms a proper subject for judicial inquiry.

It is a rule which has been repeatedly sanctioned by this Court that the judicial department is to
consider as sovereign and independent States or nations those powers that are recognized as such
by the executive and legislative departments of the government, they being more particularly
entrusted with our foreign relations. 4 Cranch 241, 2 Peters’s Cond.Rep. 98; 3 Wheat. 634; 4
Wheat. 64.

If we look to the whole course of treatment by this country of the Indians from the year 1775 to
the present day when dealing with them in their aggregate capacity as nations or tribes and
regarding the mode and manner in which all negotiations have been carried on and concluded
with them, the conclusion appears to me irresistible that they have been regarded, by the
Executive and Legislative branches of the Government, not only as sovereign and independent,
but as foreign nations or tribes, not within the jurisdiction nor under the government of the States
within which they were located. This remark is to be [p*60] understood, of course, as referring
only to such as live together as a distinct community, under their own laws, usages and customs,
and not to the mere remnant of tribes which are to be found in many parts of our country, who
have become mixed with the general population of the country, their national character
extinguished and their usages and customs in a great measure abandoned, self-government
surrendered, and who have voluntarily, or by the force of circumstances which surrounded
them, gradually become subject to the laws of the States within which they are situated.

Such, however, is not the case with the Cherokee Nation. It retains its usages and customs and
self-government, greatly improved by the civilization which it has been the policy of the United
States to encourage and foster among them. All negotiations carried on with the Cherokees and
other Indian nations have been by way of treaty, with all the formality attending the making of
treaties with any foreign power. The journals of Congress, from the year 1775 down to the
adoption of the present Constitution, abundantly establish this fact. And since that period, such
negotiations have been carried on by the treaty-making power, and uniformly under the
denomination of treaties.

What is a treaty as understood in the law of nations? It is an agreement or contract between two
or more nations or sovereigns, entered into by agents appointed for that purpose and duly
sanctioned by the supreme power of the respective parties. And where is the authority, either in
the Constitution or in the practice of the government, for making any distinction between treaties
made with the Indian nations and any other foreign power? They relate to peace and war, the
surrender of prisoners, the cession of territory, and the various subjects which are usually
embraced in such contracts between sovereign nations.

A recurrence to the various treaties made with the Indian nations and tribes in different parts of
the country will fully illustrate this view of the relation in which our Government has considered
the Indians as standing. It will be sufficient, however, to notice a few of the many treaties made
with this Cherokee Nation.

By the treaty of Hopewell of the 28th November 1785, [p*61] 1 Laws U.S. 322, mutual
stipulations are entered into to restore all prisoners taken by either party, and the Cherokees
stipulate to restore all negroes and all other property taken from the citizens of the United States,
and a boundary line is settled between the Cherokees, and the citizens of the United States, and
this embraced territory within the chartered limits of Georgia. And, by the sixth article, it is
provided that, if any Indian or person residing among them, or who shall take refuge in their
nation shall commit a robbery, or murder, or other capital crime on any citizen of the United
States or person under their protection, the nation or tribe to which such offender may belong
shall deliver him up to be punished according to the ordinances of the United States. What more
explicit recognition of the sovereignty and independence of this Nation could have been made? It
was a direct acknowledgement that this territory was under a foreign jurisdiction. If it had been
understood that the jurisdiction of the State of Georgia extended over this territory, no such
stipulation would have been necessary. The process of the Courts of Georgia would have run
into this as well as into any other part of the State. It is a stipulation analogous to that contained
in the treaty of 1794 with England, 1 Laws U.S. 220, by the twenty-seventh article of which it is
mutually agreed that each party will deliver up to justice all persons who, being charged with
murder or forgery committed within the jurisdiction of either, shall seek an asylum within any of
the countries of the other. Upon what ground can any distinction be made as to the reason and
necessity of such stipulation in the respective treaties. The necessity for the stipulation in both
cases must be because the process of one government and jurisdiction will not run into that of
another, and separate and distinct jurisdiction, as has been shown, is what makes governments
and nations foreign to each other in their political relations.

The same stipulation as to delivering up criminals who shall take refuge in the Cherokee Nation
is contained in the treaty of Holston of the 2d of July 1791, 1 Laws U.S. 327. And the eleventh
article fully recognizes the jurisdiction of the Cherokee Nation over the territory occupied by
them. It provides that if any citizen of the United States shall go into [p*62] the territory
belonging to the Cherokees and commit any crime upon or trespass against the person or
property of any friendly Indian which, if committed within the jurisdiction of any State, would
be punishable by the laws of such State, shall be subject to the same punishment, and proceeded
against in the same manner, as if the offence had been committed within the jurisdiction of the
State. Here is an explicit admission that the Cherokee territory is not within the jurisdiction of
any State. If it had been considered within the jurisdiction of Georgia, such a provision would
not only be unnecessary, but absurd. It is a provision looking to the punishment of a citizen of
the United States for some act done in a foreign country. If exercising exclusive jurisdiction over
a country is sufficient to constitute the State or power so exercising it a foreign state, the
Cherokee Nation may assuredly with the greatest propriety be so considered.

The phraseology of the clause in the Constitution giving to Congress the power to regulate
commerce is supposed to afford an argument against considering the Cherokees a foreign nation.
The clause reads thus, “to regulate commerce with foreign nations, and among the several States,
and with the Indian tribes.” Constitution, Art. 1, SS 8. The argument is that if the Indian tribes are
foreign nations, they would have been included without being specially named, and being so
named imports something different from the previous term “foreign nations.”

This appears to me to partake too much of a mere verbal criticism to draw after it the important
conclusion that Indian tribes are not foreign nations. But the clause affords, irresistibly, the
conclusion that the Indian tribes are not there understood as included within the description of the
“several States;” or there could have been no fitness in immediately thereafter particularizing “the
Indian tribes.”

It is generally understood that every separate body of Indians is divided into bands or tribes, and
forms a little community within the nation to which it belongs; and as the nation has some
particular symbol by which it is distinguished from others, so each tribe has a badge from which
it is denominated, and each tribe may have rights applicable to itself.

Cases may arise where the trade with a particular tribe may [p*63] require to be regulated, and
which might not have been embraced under the general description of the term nation, or it might
at least have left the case somewhat doubtful; as the clause was intended to vest in Congress the
power to regulate all commercial intercourse, this phraseology was probably adopted to meet all
possible cases, and the provision would have been imperfect if the term “Indian tribes” had been
omitted.

Congress could not then have regulated the trade with any particular tribe that did not extend to
the whole nation. Or it may be that the term “tribe” is here used as importing the same thing as
that of “nation,” and adopted merely to avoid the repetition of the term nation, and the Indians are
specially named because there was a provision somewhat analogous in the confederation; and
entirely omitting to name the Indian tribes might have afforded some plausible grounds for
concluding that this branch of commercial intercourse was not subject to the power of Congress.

On examining the journals of the old congress, which contain numerous proceedings and
resolutions respecting the Indians, the terms “nation” and “tribe” are frequently used
indiscriminately, and as importing the same thing, and treaties were sometimes entered into with
the Indians, under the description or denomination of tribes, without naming the nation. See
Journals 30th June and 12th July 1775; 8th March 1776; 20th October 1777: and numerous other
instances.

But whether any of these suggestions will satisfactorily account for the phraseology here used or
not, it appears to me to be of too doubtful import to outweigh the considerations to which I have
referred to show that the Cherokees are a foreign nation. The difference between the provision in
the Constitution and that in the Confederation on this subject appears to me to show very
satisfactorily that, so far as related to trade and commerce with the Indians wherever found in
tribes, whether within or without the limits of a State, was subject to the regulation of Congress.

The provision in the confederation, Art. 9, 1 Laws United States 17, is that Congress shall have
the power of regulating the trade and management of all affairs with the Indians not members of
any of the States, provided that the legislative right of any State within its own limits be not
infringed or violated. [p*64] The true import of this provision is certainly not very obvious; see
Federalist, No. 42. What were the legislative rights intended to be embraced within the proviso is
left in great uncertainty. But whatever difficulty on that subject might have arisen under the
confederation, it is entirely removed by the omission of the proviso in the present Constitution,
thereby leaving this power entirely with Congress, without regard to any State right on the
subject, and showing that the Indian tribes were considered as distinct communities, although
within the limits of a State.

The provision, as contained in the confederation, may aid in illustrating what is to be inferred
from some parts of the Constitution, Art. 1, SS 1, par. 3, as to the apportionment of
representatives, and acts of Congress in relation to the Indians, to-wit, that they are divided into
two distinct classes, one composed of those who are considered members of the State within
which they reside and the other not; the former embracing the remnant of the tribes who had lost
their distinctive character as a separate community and had become subject to the laws of the
States, and the latter such as still retained their original connexion as tribes, and live together
under their own laws, usages and customs, and, as such, are treated as a community independent
of the State. No very important conclusion, I think, therefore can be drawn from the use of the
term “tribe” in this clause of the Constitution, intended merely for commercial regulations. If
considered as importing the same thing as the term “nation,” it might have been adopted to avoid
the repetition of the word nation.

Other instances occur in the Constitution where different terms are used importing the same
thing. Thus, in the clause giving jurisdiction to this Court, the term “foreign states” is used
instead of “foreign nations,” as in the clause relating to commerce. And again, in Art. 1, SS 10, a
still different phraseology is employed. “No State, without the consent of Congress, shall enter
into any agreement or compact with a foreign power.” But each of these terms, nation, state,
power, as used in different parts of the Constitution, imports the same thing, and does not admit
of a different interpretation. In the treaties made with the Indians, they are sometimes designated
under the name of tribe, and sometimes that [p*65] of nation. In the treaty of 1804 with the
Delaware Indians, they are denominated the “Delaware Tribe of Indians.” 1 Laws United States
305. And in a previous treaty with the same people in the year 1778, they are designated by the
name of “the Delaware Nation.” 1 Laws United States 302.

As this was one of the earliest treaties made with the Indians, its provisions may serve to show in
what light the Indian nations were viewed by Congress at that day.

The territory of the Delaware Nation was within the limits of the States of New York,
Pennsylvania and New Jersey. Yet we hear of no claim of jurisdiction set up by those States over
these Indians. This treaty, both in form and substance, purports to be an arrangement with an
independent sovereign power. It even purports to be articles of confederation. It contains
stipulations relative to peace and war, and for permission to the United States troops to pass
through the country of the Delaware Nation. That neither party shall protect in their respective
States, servants, slaves, or criminals, fugitives from the other, but secure, and deliver them up.
Trade is regulated between the parties. And the sixth article shows the early pledge of the United
States to protect the Indians in their possessions against any claims or encroachments of the
States. It recites that, whereas the enemies of the United States have endeavoured to impress the
Indians in general with an opinion that it is the design of the States to extirpate the Indians and
take possession of their country, to obviate such false suggestions, the United States do engage
to guaranty to the aforesaid Nation of Delawares and their heirs, all their territorial rights, in the
fullest and most ample manner, as it has been bounded by former treaties, &c. And provision is
even made for inviting other tribes to join the confederacy, and to form a state, and have a
representation in Congress, should it be found conducive to the mutual interest of both parties.
All which provisions are totally inconsistent with the idea of these Indians’ being considered
under the jurisdiction of the States, although their chartered limits might extend over them.

The recital in this treaty contains a declaration and admission of Congress of the rights of Indians
in general, and that the impression which our enemies were [p*66] endeavouring to make, that it
was the design of the States to extirpate them and take their lands, was false. And the same
recognition of their rights runs through all the treaties made with the Indian nations or tribes from
that day down to the present time.

The twelfth article of the treaty of Hopewell contains a full recognition of the sovereign and
independent character of the Cherokee Nation. To impress upon them full confidence in the
justice of the United States respecting their interest, they have a right to send a deputy of their
choice to Congress. No one can suppose that such deputy was to take his seat as a member of
Congress, but that he would be received as the agent of that nation. It is immaterial what such
agent is called, whether minister, commissioner or deputy; he is to represent his principal.

There could have been no fitness or propriety in any such stipulation if the Cherokee Nation had
been considered in any way incorporated with the State of Georgia, or as citizens of that State.
The idea of the Cherokees’ being considered citizens is entirely inconsistent with several of our
treaties with them. By the eighth article of the Treaty of the 26th December, 1817, 6 Laws U.S.
706, the United States stipulate to give 640 acres of land to each head of any Indian family
residing on the lands now ceded or which may hereafter be surrendered to the United States who
may wish to become citizens of the United States; so also, the second article of the treaty with the
same nation, of the 10th of March, 1819, contains the same stipulation in favour of the heads of
families who may choose to become citizens of the United States, thereby clearly showing that
they were not considered citizens at the time those stipulations were entered into, or the provision
would have been entirely unnecessary, if not absurd. And if not citizens, they must be aliens or
foreigners, and such must be the character of each individual belonging to the nation. And it was,
therefore, very aptly asked on the argument, and I think not very easily answered, how a Nation
composed of aliens or foreigners can be other than a foreign nation.

The question touching the citizenship of an Oneida Indian came under the consideration of the
Supreme Court of New [p*67] York in the case of Jackson v. Goodel, 20 Johns. 193. The
lessor of the plaintiff was the son of an Oneida Indian who had received a patent for the lands in
question as an officer in the revolutionary war, and although the Supreme Court, under the
circumstances of the case, decided he was a citizen, yet Chief Justice Spencer observed, we do
not mean to say that the condition of the Indian tribes (alluding to the six nations), at former and
remote periods, has been that of subjects or citizens of the State; their condition has been
gradually changing, until they have lost every attribute of sovereignty and become entirely
dependent upon and subject to our government. But the cause being carried up to the Court of
Errors, chancellor Kent, in a very elaborate and able opinion on that question, came to a different
conclusion as to the citizenship of the Indian, even under the strong circumstances of that case.

“That Oneidas,” he observed, and

the tribes composing the six nations of Indians were originally free and independent nations, and
it is for the counsel who contend that they have now ceased to be a distinct people and become
completely incorporated with us to point out the time when that event took place. In my view,
they have never been regarded as citizens or members of our body politic. They have always
been, and still are, considered by our laws as dependent tribes, governed by their own usages
and chiefs but placed under our protection, and subject to our coercion so far as the public safety
required it, and no farther. The whites have been gradually pressing upon them, as they kept
receding from the approaches of civilization. We have purchased the greater part of their lands,
destroyed their hunting grounds, subdued the wilderness around them, overwhelmed them with
our population, and gradually abridged their native independence. Still they are permitted to exist
as distinct nations, and we continue to treat with their sachems in a national capacity, and as
being the lawful representatives of their tribes. Through the whole course of our colonial history,
these Indians were considered dependent allies. The colonial authorities uniformly negotiated
with them and made and observed treaties with them as sovereign communities exercising the
right of free deliberation and action, but, in consideration of protection, owing [p*68] a qualified
subjection in a national capacity to the British Crown. No argument can be drawn against the
sovereignty of these Indian nations from the fact of their having put themselves and their lands
under the protection of the British Crown; such a fact is of frequent occurrence between
independent nations. One community may be bound to another by a very unequal alliance and
still be a sovereign state. Vat. B. 1, ch. 16, SS 194. The Indians, though born within our
territorial limits, are considered as born under the dominion of their own tribes. There is nothing
in the proceedings of the United States during the Revolutionary War which went to impair, and
much less to extinguish, the national character of the six nations and consolidate them with our
own people. Every public document speaks a different language, and admits their distinct
existence and competence as nations, but placed in the same state of dependence, and calling for
the same protection, which existed before the war. In the treaties made with them, we have the
forms and requisites peculiar to the intercourse between friendly and independent states, and they
are conformable to the received institutes of the law of nations. What more demonstrable proof
can we require of existing and acknowledged sovereignty.

If this be a just view of the Oneida Indians, the rules and principles here applied to that Nation
may with much greater force be applied to the character, state, and condition of the Cherokee
Nation of Indians, and we may safely conclude that they are not citizens, and must, of course, be
aliens; and, if aliens in their individual capacities, it will be difficult to escape the conclusion that,
as a community, they constitute a foreign nation or state, and thereby become a competent party
to maintain an action in this Court according to the express terms of the Constitution.

And why should this Court scruple to consider this Nation a competent party to appear here?

Other departments of the Government, whose right it is to decide what powers shall be
recognized as sovereign and independent nations, have treated this Nation as such. They have
considered it competent, in its political and national capacity, to enter into contracts of the most
solemn character; and if these contracts contain matter proper for judicial inquiry, [p*69] why
should we refuse to entertain jurisdiction of the case? Such jurisdiction is expressly given to this
Court in cases arising under treaties. If the executive department does not think proper to enter
into treaties or contracts with the Indian nations, no case with them can arise calling for judicial
cognizance. But when such treaties are found containing stipulations proper for judicial
cognizance, I am unable to discover any reasons satisfying my mind that this Court has not
jurisdiction of the case.

The next inquiry is whether such a case is made out in the bill as to warrant this Court in granting
any relief?

I have endeavoured to show that the Cherokee Nation is a foreign state, and, as such, a
competent party to maintain an original suit in this Court against one of the United States. The
injuries complained of are violations committed and threatened upon the property of the
complainants, secured to them by the laws and treaties of the United States. Under the
Constitution, the judicial power of the United States extends expressly to all cases in law and
equity arising under the laws of the United States and treaties made or which shall be made under
the authority of the same.

In the case of Osborn v. The United States Bank, 9 Wheat. 819, the Court say that this clause in
the Constitution enables the judicial department to receive jurisdiction to the full extent of the
Constitution, laws, and treaties of the United States when any question respecting them shall
assume such a form that the judicial power is capable of acting on it. That power is capable of
acting only when the subject is submitted to it by a party who asserts his rights in the form
presented by law. It then becomes a case, and the Constitution authorises the application of the
judicial power.

The question presented in the present case is, under the ordinary form of judicial proceedings, to
obtain an injunction to prevent or stay a violation of the rights of property claimed and held by
the complainants under the treaties and laws of the United States which, it is alleged, have been
violated by the State of Georgia. Both the form and the subject matter of the complaint therefore
fall properly under judicial cognizance.

What the rights of property in the Cherokee Nation are [p*70] may be discovered from the
several treaties which have been made between the United States and that Nation between the
years 1785 and 1819. It will be unnecessary to notice many of them. They all recognize in the
most unqualified manner a right of property in this nation to the occupancy, at least, of the lands
in question. It is immaterial whether this interest is a mere right of occupancy or an absolute right
to the soil. The complains is for a violation, or threatened violation, of the possessory right. And
this is a right, in the enjoyment of which they are entitled to protection according to the doctrine
of this Court in the cases of Fletcher v. Peck, 6 Cranch 87 , 2 Peters’s Cond.Rep. 308, and
Johnson v. M’Intosh, 8 Wheat. 592. By the fourth article of the treaty of Hopewell, as early as
the year 1785, 1 Laws United States 323, the boundary line between the Cherokees and the
citizens of the United States within the limits of the United States is fixed.

The fifth article provides for the removal and punishment of citizens of the United States or other
persons, not being Indians, who shall attempt to settle on the lands so allotted to the Indians,
thereby not only surrendering the exclusive possession of these lands to this nation but providing
for the protection and enjoyment of such possession. And it may be remarked in corroboration of
what has been said in a former part of this opinion that there is here drawn a marked line of
distinction between the Indians and citizens of the United States entirely excluding the former
from the character of citizens.

Again, by the treaty of Holston in 1791, 1 Laws United States 325, the United States purchase a
part of the territory of this nation, and a new boundary line is designated and provision made for
having it ascertained and marked. The mere act of purchasing and paying a consideration for
these lands is a recognition of the Indian right. In addition to which, the United States, by the
seventh article, solemnly guaranty to the Cherokee Nation all their lands not ceded by that treaty.
And, by the eighth article, it is declared that any citizens of the United States, who shall settle
upon any of the Cherokee lands, shall forfeit the protection of the United States, and the
Cherokees may punish them or not as they shall please. [p*71]

This treaty was made soon after the adoption of the present Constitution. And, in the last article,
it is declared that it shall take effect and be obligatory upon the contracting parties as soon as the
same shall have been ratified by the President of the United States, with the advice and consent
of the Senate, thereby showing the early opinion of the government of the character of the
Cherokee Nation. The contract is made by way of treaty, and to be ratified in the same manner as
all other treaties made with sovereign and independent nations, and which has been the mode of
negotiating in all subsequent Indian treaties.

And this course was adopted by President Washington upon great consideration, by and with the
previous advice and concurrence of the Senate. In his message sent to the Senate on that
occasion, he states that the White people had intruded on the Indian lands, as bounded by the
treaty of Hopewell, and declares his determination to execute the power entrusted to him by the
Constitution to carry that treaty into faithful execution unless a new boundary should be arranged
with the Cherokees embracing the intrusive settlements and compensating the Cherokees
therefor. And he puts to the Senate this question: shall the United States stipulate solemnly to
guarantee the new boundary which shall be arranged? Upon which, the Senate resolve that, in
case a new or other boundary than that stipulated by the treaty of Hopewell shall be concluded
with the Cherokee Indians, the Senate do advise and consent solemnly to guaranty the same. 1
Executive Journal 60. In consequence of which the treaty of Holston was entered into,
containing the guarantee.

Further cessions of land have been made at different times by the Cherokee Nation to the United
States for a consideration paid therefor and, as the treaties declare, in acknowledgement for the
protection of the United States (see Treaty of 1798, 1 Laws U.S. 332), the United States always
recognizing in the fullest manner the Indian right of possession; and in the Treaty of the 8th of
July, 1817, art. 5 (6 Laws U.S. 702), all former treaties are declared to be in full force, and the
sanction of the United States is given to the proposition of a portion of the Nation to begin the
establishment of fixed laws and a regular government: thereby recognizing in the Nation a
political existence, capable of forming an independent [p*72] government, separate and distinct
from and in no manner whatever under the jurisdiction of the State of Georgia; and no objection
is known to have been made by that State.

And again, in 1819 (6 Laws U.S. 748), another treaty is made sanctioning and carrying into
effect the measures contemplated by the treaty of 1817, beginning with a recital that the greater
part of the Cherokees have expressed an earnest desire to remain on this side of the Mississippi,
and being desirous, in order to commence those measures which they deem necessary to the
civilization and preservation of their nation, that the Treaty between the United States and them,
of the 8th of July, 1817, might without further delay be finally adjusted, have offered to make a
further cession of land, &c. This cession is accepted, and various stipulations entered into with a
view to their civilization and the establishment of a regular government, which has since been
accomplished. And, by the fifth article, it is stipulated that all white people who have intruded or
who shall thereafter intrude on the lands reserved for the Cherokees shall be removed by the
United States and proceeded against according to the provisions of the act of 1802, entitled “An
act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the
frontiers.” 3 Laws U.S. 460. By this act, the boundary lines established by treaty with the
various Indian tribes are required to be ascertained and marked, and, among others, that with the
Cherokee Nation according to the Treaty of the 2d of October, 1798.

It may be necessary here briefly to notice some of the provisions of this Act of 1802 so far as it
goes to protect the rights of property in the Indians, for the purpose of seeing whether there has
been any violation of those rights by the State of Georgia which falls properly under judicial
cognizance. By this Act, it is made an offence punishable by fine and imprisonment for any
citizen or other person resident in the United States, or either of the territorial districts, to cross
over or go within the boundary line to hunt or destroy the game, or drive stock to range or feed
on the Indian lands, or to go into any country allotted to the Indians without a passport, or to
commit therein any robbery, larceny, trespass, or other crime against the person or property of
any friendly [p*73] Indian, which would be punishable, if committed within the jurisdiction of
any State against a citizen of the United States, thereby necessarily implying that the Indian
territory secured by treaty was not within the jurisdiction of any State. The Act further provides
that ,when property is taken or destroyed, the offender shall forfeit and pay twice the value of the
property so taken or destroyed. And, by the fifth section, it is declared that, if any citizen of the
United States or other person shall make a settlement on any lands belonging or secured or
guarantied by treaty with the United States to any Indian tribe, or shall survey or attempt to
survey such lands or designate any of the boundaries by marking trees or otherwise, such
offender shall forfeit a sum not exceeding one thousand dollars, and suffer imprisonment not
exceeding twelve months.

This Act contains various other provisions for the purpose of protecting the Indians in the free
and uninterrupted enjoyment of their lands, and authority is given (SS 16) to employ the military
force of the United States to apprehend all persons who shall be found in the Indian country in
violation of any of the provisions of the act, and deliver them up to the civil authority to be
proceeded against in due course of law.

It may not be improper here to notice some diversity of opinion that has been entertained with
respect to the construction of the nineteenth section of this Act, which declares that nothing
therein contained shall be construed to prevent any trade or intercourse with the Indians living on
lands surrounded by settlements of citizens of the United States, and being within the ordinary
jurisdiction of any of the individual States. It is understood that the State of Georgia contends
that the Cherokee Nation come within this section, and are subject to the jurisdiction of that State.
Such a construction makes the Act inconsistent with itself, and directly repugnant to the various
treaties entered into between the United States and the Cherokee Indians. The Act recognizes and
adopts the boundary line as settled by treaty. And by these treaties, which are in full force, the
United States solemnly guaranty to the Cherokee Nation all their lands not ceded to the United
States; and these lands lie within the chartered limits of Georgia; and this was a subsisting
guarantee under the [p*74] Treaty of 1791, where the Act of 1802 was passed. It would require
the most unequivocal language to authorise a construction so directly repugnant to these treaties.

But this section admits of a plain and obvious interpretation, consistent with other parts of the
Act, and in harmony with these treaties. The reference undoubtedly is to that class of Indians
which has already been referred to, consisting of the mere remnants of tribes which have become
almost extinct and who have, in a great measure, lost their original character and abandoned their
usages and customs and become subject to the laws of the State, although in many parts of the
country living together, and surrounded by the whites. They cannot be said to have any distinct
government of their own, and are within the ordinary jurisdiction and government of the State
where they are located.

But such was not the condition and character of the Cherokee Nation, in any respect whatever, in
the year 1802 or at any time since. It was a numerous and distinct nation, living under the
government of their own laws, usages, and customs and in no sense under the ordinary
jurisdiction of the State of Georgia, but under the protection of the United States, with a solemn
guarantee by treaty of the exclusive right to the possession of their lands. This guarantee is to the
Cherokees in their national capacity. Their land is held in common, and every invasion of their
possessory right is an injury done to the Nation, and not to any individual. No private or
individual suit could be sustained; the injury done being to the Nation, the remedy sought must
be in the name of the Nation. All the rights secured to these Indians under the treaties made with
them remain unimpaired. These treaties are acknowledged by the United States to be in full force
by the proviso to the seventh section of the Act of the 28th May 1830, which declares that
nothing in this Act contained shall be construed as authorising or directing the violation of any
existing treaty between the United States and any Indian tribes.

That the Cherokee Nation of Indians have, by virtue of these treaties, an exclusive right of
occupancy of the lands in question, and that the United States are bound under their guarantee to
protect the Nation in the enjoyment of such occupancy, [p*75] cannot, in my judgment, admit of
a doubt, and that some of the laws of Georgia set out in the bill are in violation of and in conflict
with those treaties and the Act of 1802 is, to my mind, equally clear. But a majority of the Court
having refused the injunction, so that no relief whatever can be granted, it would be a fruitless
inquiry for me to go at large into an examination of the extent to which relief might be granted by
this Court, according to my own view of the case.

I certainly, as before observed, do not claim as belonging to the Judiciary the exercise of political
power. That belongs to another branch of the Government. The protection and enforcement of
many rights secured by treaties most certainly do not belong to the Judiciary. It is only where the
rights of persons or property are involved, and when such rights can be presented under some
judicial form of proceedings, that courts of justice can interpose relief.

This Court can have no right to pronounce an abstract opinion upon the constitutionality of a
State law. Such law must be brought into actual or threatened operation upon rights properly
falling under judicial cognizance, or a remedy is not to be had here.

The laws of Georgia set out in the bill, if carried fully into operation, go the length of a
abrogating all the laws of the Cherokees, abolishing their government, and entirely subverting
their national character. Although the whole of these laws may be in violation of the treaties made
with this Nation, it is probable this Court cannot grant relief to the full extent of the complaint.
Some of them, however, are so directly at variance with these treaties and the laws of the United
States touching the rights of property secured to them that I can perceive no objection to the
application of judicial relief. The State of Georgia certainly could not have intended these laws as
declarations of hostility, or wish their execution of them to be viewed in any manner whatever as
acts of war, but merely as an assertion of what is claimed as a legal right, and in this light ought
they to be considered by this Court.

The Act of the 2d of December, 1830 is entitled

An act to authorize the Governor to take possession of the gold and silver and other mines lying
and being in that section of the chartered limits of Georgia, commonly called the Cherokee
country, [p*76] and those upon all other unappropriated lands of the State, and for punishing
persons who may be found trespassing on the mines.

The preamble to this Act asserts the title to these mines to belong to the State of Georgia, and by
its provisions, twenty thousand dollars are appropriated and placed at the disposal of the
Governor to enable him to take possession of those mines; and it is made a crime, punishable by
imprisonment in the penitentiary of Georgia at hard labour, for the Cherokee Indians to work
these mines. And the bill alleges that, under the laws of the State in relation to the mines, the
Governor has stationed at the mines an armed force who are employed in restraining the
complainants in their rights and liberties in regard to their own mines, and in enforcing the laws
of Georgia upon them. These can be considered in no other light than as acts of trespass, and
may be treated as acts of the State, and not of the individuals employed as the agents. Whoever
authorises or commands an act to be done may be considered a principal, and held responsible if
he can be made a party to a suit, as the State of Georgia may undoubtedly be. It is not perceived
on what ground the State can claim a right to the possession and use of these mines. The right of
occupancy is secured to the Cherokees by treaty, and the State has not even a reversionary
interest in the soil. It is true that, by the Compact with Georgia of 1802, the United States have
stipulated to extinguish, for the use of the State, the Indian title to the lands within her remaining
limits “as soon as it can be done peaceably and upon reasonable terms.” But until this is done,
the State can have no claim to the lands.

The very Compact is a recognition by the State of a subsisting Indian right, and which may never
be extinguished. The United States have not stipulated to extinguish it until it can be done
“peaceably and upon reasonable terms,” and whatever complaints the State of Georgia may have
against the United States for the nonfulfillment of this compact, it cannot affect the right of the
Cherokees. They have not stipulated to part with that right, and, until they do, their right to the
mines stands upon the same footing as the use and enjoyment of any other part of the territory.

Again, by the act of the 21st December, 1830, surveyors [p*77] are authorized to be appointed to
enter upon the Cherokee territory and lay it off into districts and sections, which are to be
distributed by lottery among the people of Georgia, reserving to the Indians only the present
occupancy of such improvements as the individuals of their Nation may now be residing on,
with the lots on which such improvements may stand, and even excepting from such reservation
improvements recently made near the gold mines.

This is not only repugnant to the treaties with the Cherokees, but directly in violation of the Act
of Congress of 1802, the fifth section of which makes it an offence punishable with fine and
imprisonment to survey or attempt to survey or designate any of the boundaries, by marking
trees or otherwise, of any land belonging to or secured by treaty to any Indian tribe, in the face of
which, the law of Georgia authorises the entry upon, taking possession of, and surveying, and
distributing by lottery, these lands guarantied by treaty to the Cherokee Nation, and even gives
authority to the Governor to call out the military force to protect the surveyors in the discharge of
the duty assigned them.

These instances are sufficient to show a direct and palpable infringement of the rights of property
secured to the complainants by treaty, and in violation of the act of Congress of 1802. These
treaties and this law are declared by the Constitution to be the supreme law of the land; it follows
as matter of course that the laws of Georgia, so far as they are repugnant to them, must be void
and inoperative. And it remains only very briefly to inquire whether the execution of them can be
restrained by injunction according to the doctrine and practice of Courts of equity.