Cherokee Phoenix


Published August, 12, 1831

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The case of the Cherokee Nation against the State of Georgia; argued and determined at the Supreme Court of the United States, January Term, 1831.



The twelfth article of the Treaty of Hopewell contains a full recognition of the sovereign ' independent character of the Cherokee Nation. To impress upon them all confidence in the justness of the United States respecting their interests, 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 the Nation. It is immaterial what such agent is called, whether minister, commissioner of deputy, he is to represent his principal.

There could have been no fitness or propriety to any such stipulation if the Cherokee Nation had been considered 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 December 1817, 6 Laws United States 706, the United States stipulated 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 favor 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 provisions 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 York in the case of Jackson against 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 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 the case.

'The Oneidas,' he observed, '' 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 independent tribes, governed by their own usages and chiefs, but placed under our protection, and subject to our coercion so far as public safety required, 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 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 s 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 there contracts contain matter for judicial inquiry, why should we refuse to entertain jurisdiction in 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 cognisance, I am unable to discover any reason 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 endeavored 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 vs. 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 only when the subject is submitted to it by a party, who asserts his rights of the form presented by law. It then becomes a case, and the Constitution authorizes the application of the judicial power.

The question presented in the 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, 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 complaint 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 vs. Peck. 6 Cranch 37, 2 Peter's Con. Rep. 301 and Johnson vs. M'Intosh, 8 Wheat 592. By the fourth article of the Treaty of Hopewell, as early as the year 1782, 1 Laws of the 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 the citizens of the United States or other persons, not being Indians, who shall attempt to settle on lands so allotted to the Indians, thereby not only surrendering the exclusive possession of these lands to the 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 in 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 a 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 citizen 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.

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 declared that it shall take effect, 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 made the mode of negotiating all subsequent 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 therefore. And he puts to the Senate this question; shall the United States stipulate solemnly to guaranty the new boundary which shall be arranges? Upon which the senate resolved that in case a new, or other boundary then that stipulated by the Treaty of Hopewell shall be concluded with the Cherokee Indians, the Senate do advise and consent solemnly to guarantee the same. 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 United States, 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 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 United States, 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 and 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 concession of land, 'c. This cession is accepted, and various stipulations entered into, with a view of their civilization, and the establishment of a regular government which has since been accomplished. And by the fifth article it is stipulated that the 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 provision 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 United States 460. By this act the boundary lines established by treaty with the carious 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 provision 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 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 Indian, which could be punishable, if committed within a 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 5th section if 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 for- [See fourth Page] feit 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 free and uninterrupted enjoyment of their lands; and authority is given (s 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 treaty of 1791 when the act of 1802 was passed. It would require the most unequivocal language to authorize 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, 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 nay 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 1802 or 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.- All the rights secured to these Indians under any 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 authorizing or directing the violation of any existing treaty between the United States and any Indian tribe.

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 cannot in my judgement 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 these treaties and the act of 1802 is to my mind equally clear. But a majority of the court having refused the injunction is 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 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 that 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 a declaration 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 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 government 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, and those upon all other unappropriated lands of the state, and for punishing persons who may be found trespassing upon 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 these mines; and it is made a crime punishable by imprisonment in the penitentiary of Georgia at hard labor 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 ' 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 authorizes or commands an act to be done may be considered as 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 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 non fulfilment 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 acts of the 21st December 1830, surveyors are authorized to be appointed to enter upon the Cherokee territory and lay it off in 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 amy 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 that act of Congress of 1802, the fifth section of which make 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 and belonging to or secured by treaty to any Indian tribe, in the face of which the law of Georgia authorizes 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 duties 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 a 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.

According to the view which I have already taken of the case, I must consider the question of right as settled in favor of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee Nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are not grounds therefore, upon which it can be necessary to send the cause for a trial at law of the right before awarding an injunction; and the simple question is whether such a case is made out by the bill as to authorize the granting an injunction.

This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process for the protection of rights and is favorably viewed by courts of Chancery, as its object is to prevent rather than redress injuries; and has latterly been more liberally awarded than formerly. 7 Ves. Jun. 307.

The bill contains charges of numerous trespasses by entering upon the lands of the complainants and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses when there is a clear and adequate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irreparable rain. 6 Ves, 147, 7 Eden. 307. Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But where from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case of interpose the preventive process of injunction. This is the principle running through all the cases on this subject, and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private trespass admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants.--The mischief threatened is great and irreparable. 7 Johns, Cha. 330. It is one of the most beneficial powers of a court of equity to interpose and prevent an injury before any has action has been suffered; and this is done by a bill, which is sometimes called a bill quta timet. Mitford 120.

The doctrine of this court in the case of Osborne vs. the United States, Bank 9, Wheat. 338, fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the state of Ohio, to restrain him from executing a law of that state, which was alleged to be to the great injury of the Bank, and to the destruction of rights conferred by their charter. The only question of doubt entertained by the court in that case was, as to issuing an injunction against an officer of the state to restrain him from doing an official act enjoined by statute, the state not being made a party. But even this was not deemed sufficient to deny the injunction. The court considered that the Ohio law was made for the avowed purpose of expelling the bank from the state, and depriving it of its chartered privileges; and they say, if the state could have been more a party defendant, it would surely be denied, that it would be a strong case for an injunction; that the application was not to interpose the writ of injunction to protect the bank from a common and casual trespass of an individual , but from a total destruction of its franchise, or it chartered privileges, so far as respected the state of Ohio. In that case, the state could not be made a party according to the eleventh amendment of the Constitution, the complainant being mere individuals and not a sovereign state. But according to my view of the present case, the state of Georgia is properly made a party defendant, the complainants being a foreign state.

The laws of the state of Georgia in this case go as fully to the total destruction of the complainants rights as did the law of Ohio to the destruction of the rights of the bank in that state; and an injunction is as fit and proper in this case to prevent the injury as it was in that.

It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rein, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary to give full effect and operation to the injunction; and it is immaterial where the subject matter of the suit, which is only affected consequentially, is situated. This principle is fully recognized by this court in the case of Massie vs. Watts, 6 Cranch, 157, when this general rule is laid down, that in case of fraud, or trust, or of contract, the jurisdiction of a court or chancery is sustainable, wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. And reference is made to several cases in the English chancery recognizing the same principle. In the case of Penn vs. Lord Baltimore: Yes 444, a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction.

Upon the whole, I am of opinion,

1. That the Cherokees compose a foreign state within the sense and meaning of the Constitution, and constitute a competent party to maintain a suit against the state of Georgia.

2. That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee Nation, and which laws and treaties have been, and are threatened to be still further violated by laws of the state of Georgia referred to in this opinion.

3. That an injunction is a fit and proper writ to be issued to prevent the further execution of such laws, and ought therefore to be awarded.

And I am authorized by my brother STORY, to say that he concurs with me in this opinion.