They are not named or referred to in any part of the opinion of the court as nations or states, and no where declared to have any national capacity or attributes of sovereignty in their relations to the general or state governments. In Chirac vs. Chirac, this court declared that it was unnecessary to inquire into the effect of the treaty with France in 1778 under the old confederation, because the confederation had yielded to our present constitution, and this treaty had been the supreme law of the land. It is the same power which was delegated to the old congress, and, according to the judicial interpretation given by this court in Gibbons vs. Ogden, 9 Wheaton, 209, the word 'to regulate' implied in its nature full power over the thing to be regulated; it excludes, necessarily, the action of all others that would perform the same operation on the same thing. Here is an explicit admission that the Cherokee territory is not within the jurisdiction of any state. It is admitted that among the latter were comprehended the transcendent powers of parliament, as well as those of the executive department.' Oyez. This court can grant relief so far only as the rights of person or property are drawn in question, and have been infringed. 1 Laws United States, 477. THE STATE OF GEORGIA. What were the legislative rights intended to be embraced within the proviso is left in great uncertainty. A few more references to the proceedings of the old congress in relation to the Indian nations will close this view of the case. The Court heard Cherokee Nation v. State of Georgia (1831) but didn't rule on the merits of the case itself. When this country was first appropriated or conquered by the crown of Great Britain, they certainly were not known as members of the community of nations; and if they had been, Great Britain from that time blotted them from among the race of sovereigns. I disclaim the assumption of a judicial power so awfully responsible. The third clause of the eighth article shows most distinctly the sense of the convention in authorising congress to regulate commerce with the Indian tribes. When the eastern coast of this continent, and especially the part we inhabit, was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government; the right was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverer. Includes bibliographical references and index. They contracted by putting themselves under the protection of the United States, accepted of an allotment of hunting grounds, surrendered and delegated to congress the exclusive regulation of their trade and the management of all their own affairs, taking no assurance of their continued sovereignty, if they had any before, but relying on the assurance of the United States that they might have full confidence in their justice respecting their interests; stipulating only for the right of sending a deputy of their own choice to congress. Applying this construction to commerce and territory, leaves the jurisdiction and sovereignty of the Indian tribes wholly out of the question. President Andrew Jackson refused to uphold the ruling of this case and directed the expulsion of the Cherokee nation. 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. At its same session the legislature of Georgia passed another law, entitled, 'an act to prevent the exercise of assumed and arbitrary power by all persons under pretext of authority from the Cherokee Indians and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory. The bill alleges, from the earliest intercourse between the United States and the Cherokee nation, an ardent desire has been evinced by the United States to lead the Cherokees to a greater degree of civilization. The Cherokee did not consider the Indian Removal Act to be the humanitarian act Jackson claimed it to be. In Cherokee Nation v. Georgia (1831), however, Chief Justice John Marshall declared that because Indian nations were dependent entities, they had no standing before the judiciary. But each of these terms, nation, state, power, as used in different parts of the constitution, imports the same thing, and does not admit of a different interpretation. The bill then refers to the various applications of Georgia to the United States to extinguish the Indian title by force, and her denial of the obligations of the treaties with the Cherokees; although under these treaties large additions to her disposable lands had been made; and states, that presidents Monroe and Adams, in succession, understanding the articles of cession and agreement between the state of Georgia and the United States in the year 1802, as binding the United States to extinguish the Indian title, so soon only as it could be done peaceably and on reasonable terms; refused, themselves, to apply force to these complainants, or to permit it to be applied by the state of Georgia, to drive them from their possession; but, on the contrary, avowed their determination to protect these complainants by force if necessary, and to fulfil the guarantee given to them by the treaties. The mere act of purchasing and paying a consideration for these lands is a recognition of the Indian right. From the complainant's own showing we could not do justice between the parties. 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. But when the question relates to a mere right of property, and a proper case can be made between competent parties; it forms a proper subject for judicial inquiry. The protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary. It is the political relation in which one government or country stands to another, which constitutes it foreign to the other. 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. The argument is, that if the Indian tribes are foreign nations, they would have been included without being specially named, and being so named imports something different from the previous term 'foreign nations. If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. Buckner vs. Findley, 2 Peters, 591. Georgia." Upon settling in Indian Territory (present-day Oklahoma) after the Indian Removal Act, the Cherokee people established a new government in what is now the city of Tahlequah, Oklahoma. They still claim independence, and actually execute their own penal laws, such as they are, even to the punishment of death; and have recently done so. In Penn vs. Lord Baltimore, the persons were in England and the land within the king's dominions though in America. If the clause excluding Indians not taxed had not been inserted, or should be stricken out, the whole free Indian population of all the states would be included in the federal numbers, coextensively with the boundaries of all the states, included in this union. Upon what ground can any distinction be made, as to the reason and necessity of such stipulation, in the respective treaties. It retains its usages and customs and self government, greatly improved by the civilization which it has been the policy of the United States to encourage and foster among them. I cannot but think that there are strong reasons for doubting the applicability of the epithet state, to a people so low in the grade of organized society as our Indian tribes most generally are. In this spirit congress passed the celebrated ordinance of July 1787, by which they assumed the government of the north western territory, paying no regard to Indian jurisdiction, sovereignty, or their political rights, except providing for their protection; authorizing the adoption of laws 'which, for the prevention of crimes and injuries, shall have force in all parts of the district; and for the execution of process civil and criminal, the governor has power to make proper division thereof.' Rather than lead the delegation into futile negotiations with President Jackson, Ross wrote an immediate memorial to Congress, completely forgoing the customary correspondence and petitions to the President. This makes it necessary to break in on the historical trace of our Indian affairs, and follow up this subject to the adoption of the constitution. ', This appears to me to partake too much of a mere verbal criticism, to draw after it the important conclusion that Indian tribes are not foreign nations. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. When Georgia is spoken of as a state, reference is had to its political character, and not be boundary; and it is not perceived that any absurdity or inconsistency grows out of the circumstance, that the jurisdiction and territory of the state of Georgia surround or extend on every side of the Cherokee territory. We legislate upon the conduct of strangers or citizens within their limits, but innumerable treaties formed with them acknowledge them to be an independent people: and the uniform practice of acknowledging their right of soil by purchasing from them, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their rights of soil.'. And the contest is distinctly a contest for empire. And why should this court scruple to consider this nation a competent party to appear here? While dependent themselves on the crown, they exercised all the rights of dominion and sovereignty over the territory occupied by the Indians; and this is the first assertion by them of rights as a foreign state within the limits of a state. It cannot be supposed that he was to be recognized as a minister, or to sit in the congress as a delegate.
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