SUPREME COURT OF THE U. STATES.
THE CHEROKEE NATION
THE STATE OF GEORGIA.
BILL IN CHANCERY.
To the Honorable Chief Justice ' the Associate Justices of the Supreme Court of the United States, sitting in chancery.
Respectfully complaining show unto your honors, the Cherokee Nation of Indians, a foreign State not owing allegiance to the United States nor to any State of this Union, nor to any other Prince, Potentate, or State, other than their own:
That, from time immemorial, the Cherokee Nation have composed a sovereign and independent State, and in this character have been repeatedly recognized, and still stand recognized by the United States, in the various treaties subsisting between their nation and the United States.
That, long before the first approach of the white men of Europe to the western continent, the Cherokee Nations were the occupants and owners of the territory on which they now reside; deriving their title from the Great Spirit, who is the common father of the human family, and to whom the earth belongs.
That on this territory, they and their ancestors, composing the Cherokee Nation, have ever been, and still are the sole and exclusive masters, and governed of right by another laws, usages, and customs, but, such as they have themselves thought proper to ordain and appoint.
That, in the year of the christian era one thousand seven hundred and thirty-two, the monarch of several islands on the eastern coast of the Atlantic Ocean, under the name and style of George II; King of Great Britain and Ireland, by a charter in a country of his own subjects, there residing, affected to grant to them all the country on this continent, lying between the Savannah and Alatamaha rivers. That this country was at that time occupied and owned by several distinct sovereign and independent nations of Indians and among others, by the Cherokee Nation; and that the monarch who affected to grant it had not title to it whatever. These complaints are informed, ' believe, that the only title to which he pretended was derived from the circumstance that a ship manned by his subjects had, about two centuries and a half before, sailed along the coast of the western hemisphere, from the fifty sixth to the thirty-eighth degree of north latitude, and looked upon the face of that coast without even landing upon any part of it. This, they are informed and believe, has been called a title by first discovery; which is not true, even in point of fact, as against the Cherokee Nation and the other Indian Nation; for they had discovered and occupied it long before the first European ship had ventured to cross the Atlantic Ocean; the time of their original discovery and settlement of it being buried in the night of ages beyond the era of Christianity, and probably far beyond the period when the British Islands, themselves the residence of heathen savages and barbarians, became a prey to the heathen conqueror from Rome.
That this pretended title by prior discovery, whatever may be its effect on the equally pretended claims by discovery of other European sovereigns themselves, to give them a right to oust the Indian proprietors from their possession. That the utmost length to which they have carried the unjust pretensions derived from their alleged discovery, is, that the first European discoverer has the prior and exclusive right to purchase these lands from the Indian proprietors, as against all other European sovereigns; a principle settled among themselves for their own convenience, in adjusting their mutual accounts of rapine on the western world; a principle to which the Indian proprietors have never given their assent, and which they deny to be a principle of the natural law of nation; or as in any manner obligatory on them.
That, whatever may be the theory of this wild and chimerical title by discovery, as among the European sovereigns themselves, these complaints are informed believe, that it was never alleged by George II the King of Great Britain and Ireland, or by his aforesaid grantees, the Georgia Company, in 1732, or at any time since, that the charter so granted gave to that company any right to disturb or to question the exclusive right of possession by the Indians, or to interfere in any manner with their own self-government within their respective dominions. That, on the contrary, the first adventurers under that charter, on their landing at the present site of the city of Savannah, entered into a treaty with the Creek Nation of Indians, who were admitted to be the proprietors of the lands of that quarter of the country covered by the aforesaid charter, and received from them a voluntary cession of a part of those lands for a valuable consideration; and the Creeks were left under the peaceable government of their own laws no pretention having been then, or at any subsequent time, set up that the charter conferred on the grantees any authority to introduce the system of British laws into the country owned by the Indians. That various treaties have been, from time to time made between the British colony in Georgia, between the State of Georgia, before her confederation with the other States, between the confederated States afterwards, and finally between the United States under their present constitution, ' the Cherokee Nation, as well as other nations of Indians: in all of which the said Cherokee Nation and other Nations, have been recognized as sovereign and independent States, possession both the exclusive right to their territory and the exclusive right of self government within that territory. That the various proceedings from time to time had by the Congress of the United States, under the articles of their confederation, as well as under the present Constitution of the United States, in relation to the subject of the Indian nations, confirm the same view of the subject in evidence of which these complainants refer to the printed journals of their proceedings and pray that they may be taken and considered as part of this bill. These complainants also pray leave to refer, as part of this bill, to the following treaties between the United States and the Cherokee Nation as published with the Laws of the United States and forming, according to the Constitution of the United States, a part of the supreme law of the land, to be administered by this honorable court, to wit, the treaty concluded at Hopewell, on the 28th of November 1785 between the commissioners of the United States and the head men and warriors of the Cherokees; the treaty concluded on the bank of the Holston on the 22d of July, 1791, between the President of the United States by his duly authorized commissioner William Blount, and the chiefs and warriors of the Cherokee Nation of Indians, together with the additional article thereto made at Philadelphia, on the 17th February 1792, between Henry Knox, the Secretary of War, acting in behalf of the United States, and the undersigned chiefs and warriors of the Cherokee Nation; the treaty between the United States of America and the Cherokee Nation of Indians, at Philadelphia on the 26th day of June, 1794, the treaty between the same parties at Tellico, on the 2d October, 1789; the treaty between the same parties at Tellico, on the 25th of October, 1805; the treaty between the same parties at Tellico, on the 24th of october, 1804; another treaty between the same parties at the same place, on the 27th of October 1805; the treaty between the same parties, made at the City of Washington, on the 7th day of January, 1806; together with the proclamation of that convention by the President of the United States, and the elucidation of that convention of the 11th of September, 1807; the treaty between the United States and the Cherokee Nation of Indians, made at the City of Washington, on the 22d. day of March, 1816; another convention between the same parties at the same place, on the same day; a treaty between the same parties, made and done at the Chickasaw Council House on the 14th of September 1816; another treaty between the same parties made at the Cherokee Agency, on the 8th day of July, 1817 and a treaty between the same parties, made at the City of Washington, on the 27th day of February, 1817; all which treaties and conventions were duly ratified and confirmed by the Senate of the United States, and became, thenceforth, and still are, a part of the supreme law of this land.
That, by these treaties, the Cherokee Nation of Indians are acknowledged and treated with as a sovereign and independent State, within the boundary from time to time arranged between them and the United States, accordingly as that boundary was changed by successive cessions of their land to the United States, and that within the boundary as finally adjusted by the treaty of 1819, they are still sovereign and independent with the exclusive right of governing themselves by their own laws, usages, and customs, and without any right of interference with such their self-government, on the part of any one of the States composing the confederacy of the United States.
These complainants pray leave to call the attention of this honorable court to a more particular inspection of these treaties for the purpose of verifying the truth of the general principles thus deduced from them. The fact that the Cherokees are not citizens of the United States,nor of any one of those states, is admitted by the fact of treating with them as a separate and sovereign nation; and the provisions of those treaties are such as to place this tacit admission beyond the reach of controversy. Thus the Treaty of Hopewell, was a treaty of peace made to put an end to a long and bloody war which had existed between the parties to the treaty; and the first and second articles stipulate an exchange of prisoners, precisely in the style of equal sovereigns, treating under such circumstances; for example, by the first article of the Treaty of Hopewell, 'The head men and warriors of all the Cherokees shall restore all the prisoners citizens of the United States or subjects of their allies, to their entire liberty.' ,The second article presents a corresponding stipulation by the United States; thus exhibiting all the Cherokees in striking contradistinction to the citizens of the United States and the subjects of their allies, and this feature of contradistinction, these complainants will here remark, runs through every provision of this, and of every subsequent treaty, so as to exclude the possibility of the supposition that the Cherokees were regarded as citizens of the United States, or any one of these states, or as owing in any manner, allegiance to their laws. On the contrary both the language of the treaties and their substantive provisions have neither sense nor meaning, except upon the admission that the Cherokees were a separate, sovereign nation, with full capacity to treat as such, and to bind both themselves and the Untied States by the terms of these treaties. Again, the eighth article of the same Treaty of Hopewell contains this stipulation: 'It is understood that the punishment of the innocent, under the idea of retaliation is unjust, and shall not be practised on either side, except when there is a manifest violation of this treaty, and then it shall be preceded first by a demand of justice, and if refused, then by a declaration of hostilities:' the parties thus admitting themselves to be on an entire equality, in regard to that decisive test of sovereignty, the right of declaring war. Again; the sixth article of the same treaty contains a stipulation on the part of the Cherokees for the delivering up of any Indian or other person residing among them, or who shall take refuge in their nation, who shall have committed robbery or murder, or other capital crime on any citizen of the United States: a provision wholly idle if such refuges might be reached within the Indian nation of Cherokees, by the laws of the United States or any one of these states. By the fourth article of the same treaty, the boundary between the Cherokees and the citizens of the United States is designated, and the same article proceeds to stipulate, that if any citizen of the United States shall attempt to settle on any of the lands within that boundary, he shall forfeit the protection of the United States, and the Indians may punish him, or not, as they please. Without detaining your honors with a farther specification of the provision of that treaty, by a detailed reference to each and every article as admitting their exclusive sovereignty, and their authority to give the law within their territorial limits, these complainants refer again to the provisions at large, both of that and of all the other treaties above enumerated. These complainants show further to your honors that the second of the treaties enumerated, that of Holston, was made by and with the previous advice and consent of the Senate of the United States; in support of which, they refer to the message of the President Washington to that body, in August, 1789, and their answer thereto, as extracted from the journals of the Senate of the United States; of which a copy is here to annexed, as part of this bill, and marked A. This Treaty of Holston, entered into by the United States, after the adoption of the present Constitution of the United States, and under the double solemnity of a previous consultation with the Senate and their subsequent ratification of the treaty, contains the recognition of every feature of the sovereignty of the Cherokee Nation, which is to be found in the Treaty of Hopewell, and other additional ones of a character equally decisive; to all which these complainants pray the special reference of your honors. The eleventh article particularly, contains a distinct admission, that the territory of the Cherokee Nation is not within the jurisdiction of either of the states or territorial districts of the United States. And by the seventh article, 'The United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded.'
These complainants show farther unto your honors, that the United States of America, from their earliest intercourse with the Cherokee Nation, have evinced an anxious desire to lead them to a greater degree of civilization and to induce them to become herdsmen and cultivators,instead of remaining in their original hunter state. Of this fact, the fourteenth article of the said Treaty of Holston furnished evidence; which will be found to be followed up in all the subsequent treaties before referred to, in all the messages of the President of the United States to Congress touching the Indian tribes and in all the correspondence of the Executive Department of the United States with the agents from time of time established under the authority of the Cherokee Nation those humane and generous efforts were so far successful that many of them had already commenced agricultural pursuits when in the year 1808 they sent a double deputation to the City of Washington; that, from the Upper Towns to declare to the President of the United States their anxious desire to engage in the pursuits of agricultural and civilized life, in the country they then occupied, and to make known to him the impracticability of inducing the nation at large, to do this, and to request the establishment of a division line between the Upper and Lower Towns to make know their desire to continue the hunter life, and also the scarcity of game where they then lived, and under these circumstances, their wish to remove across the Mississippi River, on some vacant lands of the United States. To both these deputations, the President gave a favorable answer; declaring that those who chose to remain for the purpose of engaging in the pursuits of agricultural and civilized life in the country they then occupied, might be assured of the patronage, aid, and good neighborhood of the United States; and providing the means, also, of gratifying those who wished to remove to the west of the Mississippi, to continue the hunter state. In consequence of this arrangement, a part of the Cherokee Nation did remove to the west of the Mississippi, while the far larger portion of them did remain to engage in the pursuits of agriculture and civilized life in the country they then occupied. On the 8th of July, 1817, the before mentioned treaty at the Cherokee agency was made; the preamble of which recites the promises just stated as having been made by the President of the United States in 1808, 1809; and declares that that treaty is made for the purpose of carrying into full effect, the before recited promises, with good faith: and in full reliance on this good faith, a large cession of their lands was thereby made by the Cherokee Nation. For the same purpose, and in final and complete execution of that purpose, the before mentioned treaty of, the 27th of February, 1819, was made at the City of Washington; reciting in the preamble thereto, that a greater part of the Cherokee Nation had expressed an earnest desire to remain on this side of the Mississippi, and were desirous to commence those measures which they deem necessary to the civilization and preservation of their nation; to give effect to which object, without delay, that treaty is declared to be made, and another large cession of their lands was, thereby, made by them to the United States.
By reference to the several treaties before enumerated, it will be seen by your honors, that among other proofs of the earnestness of the United States to promote civilization among your complainants, a fund is provided for the establishment of schools. And your complainants, show farther unto your honors that, in full reliance on the sincerity and good faith of the United States, and grateful for the humanity so often and so zealously expressed in their behalf, the Cherokee Nation have made great progress in civilization, and in agriculture. They have established a constitution and form of government; the leading features of which they have borrowed from that of the United States; dividing, their government into three separate departments, legislative, executive, and judicial. In conformity with this constitution, these departments have all been organized- they have formed a code of laws, civil and criminal, adapted to their situation; have erected courts to expound and apply those laws, and organized and executive to carry them into effect; they have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state, and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States.
[TO BE CONTINUED.]