Cherokee Phoenix


Published April, 9, 1831

Page 3 Column 1b-4b



The motion made by the Counsel for the Cherokees in the Supreme Court of the United States for a writ of injunction against the State of Georgia has failed. On the last day of the session Mr. Chief Justice Marshal gave the opinion of the Court, a copy of which we have received and which we publish below. A remark or two will suffice for the present.

The Court has decided that the Cherokee Nation is not a foreign state in the sense of the Constitution, and of course, as a nation, cannot maintain an action in the Courts of the United States. This decision places us in a peculiar situation.- While most of the rights for which we have contended are most explicitly acknowledged and conceded by the Court, we are at the same time considered to be in a state of 'pupilage,' unable to sue for those rights in the judicial tribunals. This is certainly no enviable position. Having rights, important rights, but no redress, except it be in the Executive and Congress of the United States, and those have already proved a broken reed which has been piercing us to our very vitals. When we say that we have no redress in the Courts of the Union, we mean in our National capacity, for so the Court has decided, and when it is said by the Court that it cannot exercise jurisdiction, we presume it is meant original jurisdiction, for that was the question before them. It was only by considering the Cherokee Nation a foreign state, in the sense of the constitution, that it could have exercised jurisdiction and award the writ of injunction. Whether the Cherokees as individuals can receive protection from the Supreme Court in its appellate jurisdiction, is a question we are not capable of answering. We must leave that to futurity.

We have seen as yet but one Georgia paper which contains a notice of the failure of the application of the Cherokees. From it we copy the following paragraph:

It will be seen, by the following letter from a respected correspondent at Washington, that the Supreme Court has decided entirely in favor of the State of Georgia, in the case of the injunction prayed by the Cherokees, to prevent the operation of the State laws over them--declining to take jurisdiction. Thus, the views of the State, with regard to her entire jurisdiction over the Indians within her limits, are fully sustained, in the last resort, and the Cherokees, therefore, must either submit altogether to our laws, or emigrate to the West of the Mississippi.

Putting aside this matter of jurisdiction, we ask, what views of Georgia are sustained not to say (fully) by the opinion of the Supreme Court. Does the Court say that the Cherokees have no property in the soil, but are merely tenants at will? that they have no right to self-government, but are subjects of the states? that the treaties are not binding, and the intercourse law unconstitutional? These are the views of Georgia. Now does the opinion of the Court sustain them? Far from it. No language can be plainer than the following: 'So much of the argument,' says the Court, '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 the majority of the Judges, been completely successful.' If this sustains the views of Georgia and General Jackson (for we are told he also considered HIS VIEWS sustained by the Court) then we have all along been utterly ignorant as to what those views were.

We might say, and are prepared to say many things in regard to the present posture of Cherokee affairs, but for want of room we are obliged to defer further remarks to another time.






Opinion of the Supreme Court of the United States delivered by Mr. Chief Justice Marshall on a motion of the Cherokee Nation for a writ of injunction and subpoena against the State of Georgia.

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 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 the 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 thier former extensive territory than is 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?(sic)

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 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 plaintiff 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?

Their 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 conditions 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 no where else.

The Indian territory is admitted to compose a part of the United States. In all our maps, geographical treaties, 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 the treaties to be under the protection of the United States; they admit that the United States have the sole and exclusive right of regulating the trade with them, and of managing all their affairs, as they think proper, and the Cherokees in particular were allowed by the Treaty of Hopewell, when preceded the Constitution, 'to send 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 the 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 or 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 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 state.

In considering this subject the habits and usages of the Indians, in their intercourse with their white neighbors, ought not to be entirely disregarded. At the time that the Constitution was framed, the idea of appealing to an American court of justice for as assertion of right or a redress of wrongs 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 U. 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, among the several states, and with the indian tribes.'

In this clause they are as clearly contra-distinguished 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 framing this article the convention considered them as entirely distinct. We cannot assume that the distinction was lost in the framing of the subsequent article, unless there be something in its language to authorize the assumption.

The counsel for the plaintiffs contend that the words 'Indian tribes' were introduced into the article empowering Congress to regulate commerce for the purpose of removing those doubts as 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 confined 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 contra distinguishing 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 words (sic) has various meanings and the peculiar sense in which it is used in any sentence is to be determined by the context. This amy 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 contra-distinguishing 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 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 as 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 seems to restrain a state from a forcible exercise of legislative power over a neighboring 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 lands 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 legislation of Georgia, and to restrain the execution of its physical force. The propriety of such an interposition by the court may well be questioned. It savors 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.