JUDGE CLAYTON'S OPINION
THE STATE vs. CUNATOO.
A CHEROKEE INDIAN,
Committed to jail upon a charge of digging gold in that part of the Cherokee Nation not as yet ceded but attached to the county of Gwinnett, for the purpose of civil and criminal jurisdiction.
Now let us apply these principles to the case before us, and in doing so, two sides present themselves.- First, if these Reserves, which were really nothing more than small portions of the Indian nation set apart of particular tribes, possessing precisely the same nature and condition of the balance of their country, as was proved by an after extinguishment of their title, was decided to be the property of the Indians, who will contend that the State had a right to prevent them from using that property in any manner they please? Who will say if they had found mines upon their Reserves that the state could have prohibited them from using them? Who will that it would have been just to have done so and leave the citizens all around these Reserves to do what they pleased with their own lands? Well, if in these Reserves the land and minerals are not separated so as to make the latter the property of the State, how do they differ from the rest of the nation? The Indians hold the balance of their lands precisely by a similar title, as has already been shown, ' will be more fully exhibited presently. Suppose one of those Reserves had remained to this day in the hands of one of the reservees, unextinguished, does anyone believe that the law of the last Legislature would operate upon this land? In the name of everything that is just ' sacred, how can it do so upon lands exactly in the same situation, differing in nothing but the number of the tenants and the extent of the reserve, for they are as effectually reserved to their nation for their own use, by the same identical treaties, as they did the small reserves for the use individual Indians?
I avail myself of this occasion to state, that these reserves afford a happy illustration of the difference between the State's right of jurisdiction and the Indian's right of property. If after the Court had awarded, to the Indian the private property secured to him by the treaty, in his reserve, he had applied for the right of jurisdiction also, he would have answered, no---you fall under the government of the State precisely like all the other persons within its limits, be the nature of their titles to lands what it may, or be they citizens or foreigners, black, red or white. And so with regard to the rest of the nation, because, as before stated, they are precisely in the same situation of these Reserves, being on a larger scope of country and a greater number of tenants.
The other idea is this. If the treaties just mentioned were accepted by the State under the Articles of Cession of 1802, and secured to these Reserves, by the decision of the Court, the right to their
reserves, there are other treaties made since 1802, that guaranty in like manner to the nation, all their lands not ceded to Georgia, and which Georgia has also accepted. I know it is now contended, that notwithstanding the States have yielded to the General Government the right to make treaties, and declared that no State shall make treaties that such power was never meant to apply to the purchase of Indian lands within the limits of States. This might be safely granted, though a different construction has certainly prevailed throughout the Union both by the States and the General Government, and though Georgia has repeatedly declared otherwise, as I have shown in three distinct acts, yet, as stated before, Georgia has vested the General Government by special contract, and made her the State's agent to purchase these very lands: consequently whatever treaty is made by that government and received by Georgia, must be binding. In various treaties made prior to the Articles of Cession, the following stipulation is to be found- 'The United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded.' This guarantee is found in the Treaty of Holston in the year '98 and the treaties prior to that time. In the treaty of '98 is found this article- 'the treaties subsisting between the present contracting parties are acknowledged to be of full and operating force together with the construction and usage under their respective articles, and so to continue.' And again, in the same treaty, 6th article--'in consideration of the relinquishment and cession hereby made, the United States (will pay so much money and goods) and will continue the guarantee of the remainder of the country forever, as made and contained in former treaties.' And in the last article of this treaty, it is declared that said treaty 'shall be considered as additional to, and forming a part of previous treaties, and shall be carried into effect on both sides, WITH ALL GOOD FAITH.' These are the pledges prior to the Articles of Cession, and perhaps, by some, it may be said, are not binding upon Georgia. Now let us see what pledges are made after the year 1802, the time when Georgia made the General Government an agent to 'extinguish the Indian title.' In the treaty of 1805, made at Tellico, the very first article declares 'all former treaties, which provide for the maintenance of peace and preventing crimes are on this occasion, recognized and continued in force.' Can anything conduce more to peace than the undisturbed and quiet possession of one's home? Can anything sooner contribute to an opposite consequence than the violation of one's possessions? But again, in the 5th article of Jackson's and Meriwether's treaty, in 1817, which divided the nation and sent a part across the Mississippi, it is agreed, 'that the treaties heretofore between the Cherokee Nation and the United States are to continue in full force with both parts of the nation, and both parts thereof entitled to all the immunities and privileges which the old nation enjoyed under the aforesaid treaties.' This treaty procured for Georgia all that valuable country in which the counties of Walton, Gwinnett, Hall and Habersham are situated, and of course formed the consideration for the above stipulation, securing to the Indians the provision of other treaties, one of which provisions was, that the Indians should be guarantied in the balance of their lands not ceded.
Now if Georgia has accepted this treaty, received the land thereby conveyed and distributed the same to her citizens, can she in good faith violate the guarantee solemnly made in that treaty to the Indians? Is not this precisely a similar case to the one decided in favor of the Reserves? Besides a violation of the faith of treaties, the most solemn of all contracts, and so regarded by all civilized nations, it would be a palpable violation of that part of the 10th section of the 1st article of the Federal Constitution which positively forbids the States from passing any 'law impairing the obligation of contracts.' This is a contract made by Georgia herself, because made by the United States under her power of attorney, 'acting as her agent,' ratified by her, and its benefits fully enjoyed on her part!
I have on a former occasion said and I am yet of the same opinion, that the United States, have no right to treat with the Indians on any subject but as related to peace or war, and to commerce, there being the only general relations in which they stand to that government, and as falling within the powers granted in the Constitution. Anything else the State of Georgia might reasonably object to, but where lands have been ceded as the terms of peace, or ending a war, or preventing future disturbances, or settling claims, the treaties are such as fall strictly within the power of the United States, and so Georgia herself has frequently admitted. Such were all the treaties prior to the Articles of Cession. And thus believing, how can this Court under the solemn oath it has taken evade this explicit injunction contained in the Federal Constitution, to wit--'this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the JUDGES in every State shall be bound thereby, anything in the Constitution or laws of any State to the country notwithstanding.' I confess, under the immense obligation imposed upon my conscience by this unequivocal direction, I am not prepared to nullify these treaties. We owe it to our own character, at home and abroad; we owe it to justice, we owe it to humanity; but, above all, we owe it to our love and veneration for the Federal Constitution, when executed according to its acknowledged powers, to respect these treaties, to the extent of securing to the Indians the possession of those lands not parted with by fair purchase and under their free consent.
Before I leave this branch of the subject, I will suggest a fact which goes to illustrate, under another aspect, the foregoing reasoning. The last Legislature passed an act to survey the Cherokee Nation and distribute it by lottery in the manner heretofore pursued, with this exception, that the improvements of Indians falling within any of the lots, should be reserved to them, and that the fortunate drawers of such lots should not be entitled to a grant for the same, or in any manner 'remove, or attempt to remove the Indians from their said improvements.' until the General Assembly shall enact to the contrary, or said Indians or their descendants shall voluntarily abandon such improvements? Now a question naturally arises, what kind of a title have these reserves, under said act? In sinking a well upon their promises or in ploughing their fields, if they should turn up a piece of gold and appropriate it to their own use would they be obnoxious to the law which makes it criminal to dig gold in the Cherokee Nation? If they would not, where is the difference between that case, and then present condition in the nation? They would hold their reserves under no better title than they now hold the nation. The act only reduces their title from tenancy in common to one in severalty, and the quantity from a large to a small amount, and surely whatever right they would have in the last case, is precisely the same which belongs to the first, for the operation of the act does not in the smallest degree change the nature of their title. It is still a title by occupancy, without limit as to its duration, unless the State chooses to end it by force.
I come now to consider the only argument that has been advanced to sustain the State in the course she has taken. It is this-the Indians hold their lands by the mere title of occupancy- the fee simple is in the State, and thereby having the reversionary interest, she can restrain the Indians from injuring the freehold, or in other words, from committing waste. If this be true, she can also prevent them from cutting timber beyond what is necessary, for absolute use, and from doing many things, which in legal language is called waste; working mines comes within the definition, and is of no higher injury to the freehold than any other species of waste. But the truth is, the Indian title of occupancy assimilates itself to no principle of the English Law which gives the right to stay waste as it is called. It is analogous to an estate, upon condition, which involves the relation of landlord and tenant, remainder man or reversioner, and these are the only three characters who can restrain the tenant from committing waste. It must be a particular estate to which there is a definite limit, certain as to the time of expiration, which will entitle the owner of the freehold to restrain the commission of waste. We all know what the renting of land means; it does not fall under this head. It is not every reversionary interest in land that will give the right to restrain the tenant from committing waste. It is a well known fact that the State, as the source of all title, has a reversionary interest in every foot of land she grants out to her citizens; for if they die without heirs, and intestate, their lands revert to the State by virtue of the escheat law. Now under this remote expectant interest, no one will contend the Legislature could restrain the good people of the State from digging gold on their lands. The State does not hold in remainder, for remainder 'is defined to be an estate limited, to take effect and be enjoyed after another estate is determined. There must be a particular estate created, certain and determinate, as for years, for life, or in tail, and remainder being a relative term, implies that a part has been previously disposed of, for where the whole is conveyed at once, there cannot possibly exist a remainder; but the interest granted, whatever it may be, will be an estate in possession.' -- 2 Blac. 165. Everyone must perceive that this relation does not exist between Georgia and the Indians. 'An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him.--2 Blac. 175. Sir Edward Coke-describes a reversion to be the returning of land to the grantor or his heirs, after the grant is over. Now it is equally clear that this estate does not apply to the case of the Indians; for instead of Georgia's being the grantor and limiting a particular estate to the Indians which is to have a specific duration, the very reverse is true. The Indians are the original grantors, and reserve to themselves in the grant, to wit, the treaties, an interest which is unlimited as to time, and not to end without their consent. These are all the estates which can by any possibility be made to bear upon the question, and it may with great confidence be asserted, that none other can be found. Their occupant title is unlimited as to duration, and to them is, to all intents and purposes, the same as a fee simple; they do not care what it is called, if you do not take it away by force, and will suffer them to retain the use and possession of it till they choose to part with it upon their free and voluntary consent. But we frequently attach wrong ideas to particular terms, and if it is understood by the term occupancy, that it is such a title as will justify Georgia in removing the Indian whenever she pleases, nothing can be more erroneous; for according to the legal signification of occupancy as understood in the English law, they will have a right to retain their land until they voluntarily abandon or sell it. Mr. Blackstone in describing the title to lunas by occupancy, says it 'is the taking possession of these things, which before belonged to nobody. This as we have seen is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature unqualified by that of society, were common to all mankind. But when once it was agreed that everything capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating anything to his own use, and, in consequence of such intention actually took it into possession, should thereby gain the absolute property of it.' 2 Blac. 258. There is now no title by occupancy in England, and never was but one instance, and that is now virtually destroyed by statute. The case of the Indians in America comes the nearest to it of any we know of, hence it is so called, and applying it to the definition above laid down, it is a much more stubborn title that is usually conceived. We have seen also, that the first discoverer, Great Britain, chose so to consider it, and imposed no other condition or restriction upon it than the right of pre-emption on her part. This has been followed up by Georgia, by the other States, and by the United States; so that as far as human action and decision can confirm and settle a question, this is at rest.
It will be recollected, that at the August Term, 1830 of Clark Court, I delivered a charge to the Grand Jury, in which I mentioned that it was my fixed determination to enforce the laws of Georgia in the Cherokee Nation. I told them of the illiberal interference of other States in this question-that they had reproached us with cruelty, fraud, and injustice to the Indians, to obtain their lands. I concluded that charge by saying, 'let us falsify the people i_s that have been made as to the treatment which the Indians are to receive at our hands, by exercising towards that fortunate people, the utmost kindness, justice and humanity. Their rights must be respected. To the Indians I will say, they have nothing to dread, as far as they are concerned, either from the character of our laws or their mode of administration--for if we can live under them, they surely can, and no distinction shall be made in their execution.' In the name of everything that is holy in religion, that is lovely in charity, that is sacred in justice and dear to freedom, let not this be an idle, faithless pledge. 'Justice (says Vattel) is basis of all society, the sure bond of all intercourse. All nations are then strictly obliged to cultivate justice with respect to each other, to observe it scrupulously, and carefully to abstain from everything that would violate it. Everyone ought to render to others what belongs to them, to respect their rights, and to leave them in the peaceable enjoyment of them.' The elegant historian, Dr. Ramsey, has said, 'universal justice is universal interest. The most enlarged happiness of one people by no means consists in the degradation or destruction of another; it would be more glorious to civilize one tribe of savages than to expel or exterminate a score. Instead of invading their rights, promote their happiness and give them no reason to curse the folly of their fathers who suffered yours to set down upon a soil which the common parent of us both had previously assigned to them.' In this strong sentiment of justice, all good men must concur, and I am persuaded, it is one which Georgia slandered as she has been, will not find herself authorized to disobey. But to consign a weak and defenseless race to the scourge of slavery by day, and the gloom of a dungeon by night, far from their country and their friends, for no other crime than that of taking gold from their own land and the land of their fathers, is not only a departure from this heaven directed principle, but will incur the condemnation of all civilized nations, if it do not provoke the curse of a much higher tribunal.
We are requested by Judge Clayton to publish the following as a part of his opinion delivered in the case of Canatoo, the Cherokee Indians.
It was my intention to have given the Court's opinion upon an incidental question resulting from the main point in the above case, but it escaped my recollection; it is this; it is contended that if the Indians are permitted to dig gold, they can employ any one else to do it under the maxim that, 'he who does a thing by another, does it by himself.' and that therefore they can employ white-men and negroes to any number, to operate in the mines. And it is urged that whatever use a man has of property, he has the right to employ all means in his power to make that use as productive as possible. Now there is nothing more erroneous than this principle. In the first place the above maxim does not apply to criminal acts, it is strictly applicable to civil transactions. Crime admits of no agencies; whenever an act is made criminal he who commits it will be answerable on his own account, and cannot plead that he does it at the instance of another. But if the maxim did apply to criminal cases, surely no one will deny the right of the Legislature to alter it and make such exceptions to the maxim as they pleased. Admit for the sake of argument that the Legislature could not control the Indians in employing laborers to work their farms and mines, what is to hinder them from preventing their own citizens and indeed all white persons from going into the nation, upon any terms whatever, as the United States did when they had the charge of the Indians and their lands? And if they can exclude them altogether, what hinders them from permitting it upon such terms and conditions, as they might think proper as they had lately done in the act passed last session, prescribing an oath and requiring them to obtain a license? What is to prevent an additional condition, that no white man shall go into the nation, unless he takes an oath that he will not be concerned in digging gold, or under a severe penalty if he attempts to do it.
To recur again to the reasoning, that a man who has property may employ all the means in his power to make that property as productive as possible, I would observe, the slightest reflection will convince any one of the unsoundness of this doctrine.- There are to be found various instances in our statute books, where this position is falsified. Witness the numerous acts that prevent persons from using their gaming tables, that prohibit the retailing of spirituous liquors without paying a tax for the permission, and if a tax to one amount can be imposed, so may another, and it may be so increased as to prohibit the use of the property altogether. But there is a case exactly in point in the act passed at the session of 1829, entitled 'act to prohibit the employment of slaves and free persons of color, in the setting of types in printing offices of this State?' That act inflicts a penalty of ten dollars a day for every day or a part of a day, such slave or free person may be employed. Now what is to hinder the Legislature from taking the above caption, striking out the words 'setting of types,' 'c and substitute 'digging of gold in the Cherokee Nation,' and instead of prescribing the penalty of ten dollars a day, confiscate the slaves, and punish the free persons in such manner as they may think proper? Nothing. If owners of Presses cannot use or employ their own slaves in working in their offices, a property as much theirs as the use of the land is that of the Indians surely no objection can be urged against the State's preventing white people from employing slaves or free persons in digging gold in the nation, or of hiring them to the Indians for that purpose. If a law can prevent the hiring of a slave to himself, or to another slave, it can to an Indian. On this subject the court feels no difficulty, for while the United States regulated the intercourse with Indians, which right has now passes to the State of Georgia, it restrained the admission of white persons into the nation, under much severer penalties than ever Georgia has resorted to. Whatever rights were exercised by that government, and indeed all the rights which belong to Indian relations, are now exclusively under the control of Georgia, _o otherwise bound than by her own contracts and the lawful treaties of the land.