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Subject: [TSALAGI-MB] Cherokee Nation v. State of Georgia
Date: Fri, 6 Apr 2001 17:45:44 EDT

Cherokee Nation v. State of Georgia


John Marshall
1831

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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 3rd Article of the Constitution describes the extent of the judicial
power. The 2nd 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 Cherokees 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 nowhere else.
The Indian Territory is admitted to compose part of the United States. In all
our maps, geographical treatises, 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, 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 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 connection 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 neighbors 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 8th Section of the 3rd 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.
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 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, afterward, 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 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 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 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.

SOURCE: http://kuhttp.cc.ukans.edu/carrie/docs/texts/cherokee.htm

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