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Nation v. the State of Georgia
Cherokee Nation v. the State of Georgia, 1831
Mr. Chief Justice Marshall delivered the opinion of the Court:
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 is 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 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 their formerly
extensive territory than is deemed 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?
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 plaintiffs 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 Cherokee
constitute a foreign state in the sense of the constitution?
The 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 condition 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 their
treaties to be under the protection of the United States;
they admit that the United States shall have the sole and
exclusive right of regulating the trade with them, and managing
all their affairs as they think proper; and the Cherokees
in particular were allowed by the treaty of Hopewell, which
preceded the constitution, "to send a 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 that 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 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 of 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 states.
In considering this subject, the habits and usages of the
Indians, in their intercourse with their white neighbours,
ought not to be entirely disregarded. At the time the constitution
was framed, the idea of appealing to an American court of
justice for an assertion of right or a redress of wrong, 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 United 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, and among the several states,
and with the Indian tribes."
In this clause they are as clearly contradistinguished 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 forming this article, the convention considered them
as entirely distinct. We cannot assume that the distinction
was lost in framing a 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 in 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 conferred
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 indicating that
idea, not in language contradistinguishing 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 word has various meanings, and the peculiar sense
in which it is used in any sentence is to be determined by
the context. This may 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 contradistinguishing
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 an 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 seeks to restrain a
state from the forcible exercise of legislative power over
a neighbouring people asserting their independence; their
fight 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 land occupied by
the Indians, and prays the aid of the court to protect their
possession, 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 legislature
of Georgia, and to restrain the exertion of its physical force.
The propriety of such an interposition by the court may be
well questioned. It savours 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.
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