Cherokee Nation.

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 : with an appendix ... online

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Book.






THE CASE






THE CHEROKEE NATION

against

THE STATE OF GEORGIA;

ARGUED AND DETERMINED AT

THE SUPREME COURT OF THE UNITED STATES,
JANUARY TERM 1831.



AN APPENDIX,




Containing the Opinion of Chancellor Kent on the Case ; the Treaties between

the United States and the Cherokee Indians ; the Act of Congress of

1802, entitled ' An Act to regulate intercourse with the Indian

tribes, &c.'; and the Laws of Georgia relative to the

country occupied by the Cherokee Indians,

within the boundary of that State.



BY RICHARD PETERS,
ii

COUNSELLOR AT LAW.



JOHN GRIGG, 9 NORTH FOURTH STREET
1831.






Entered according to the act of congress, in the year 1831, by Richard Peters, in the
Clerk's office of the District Court of the Eastern District of Pennsylvania.



Philadelphia:

Printed by James Kay, Jun. &. Co.
No. 4, Minor Street.



TO THE

Hon. JOSEPH STORY,

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES.

My Dear Sir,

I inscribe this book to you.

It contains a case of deep interest to every citizen of the
United States, and to every constitutional lawyer : it will be
valuable to all who respect judicial learning and ability,
and who admire forensic talent and eloquence.

There is a peculiar propriety and justice in connecting with
such a work the name of one so distinguished for love of our
country, and of our constitution; and by the highest judicial
talents and knowledge.

I have an additional motive for this inscription. I wish to
record my warm and grateful feelings for your uniform friend-
ship and kindness to me.

Accept, my dear sir, the assurance of the affectionate es-
teem with which

I am, most respectfully,

Your obedient servant,

RICHARD PETERS.



ADVERTISEMENT.



The Editor has found it will be impossible to include
in the fifth volume of the Reports of the Decisions of
the Supreme Court of the United States a report of The
Cherokee Nation vs. The State of Georgia, with the
arguments of the Counsel, and numerous documents
essential to the full development of the case, called for by
the public interest and wishes. He has therefore placed
it in this form, and he trusts it will be found useful and
acceptable.



CONTENTS.



The Bill filed on behalf of The Cherokee Nation vs. The State

of Georgia, - - - - - - 2

The Supplemental Bill, 32

Argument of Mr Sergeant, - - - - - 38

Argument of Mr Wirt, - - - - - 65

The Opinion of the Court, delivered by Chief Justice Marshall, 159
The Opinion of Mr Justice Johnson, - - - 164

The Opinion of Mr Justice Baldwin, - - - - 175

The Dissenting Opinion of Mr Justice Thompson, concurred

in by Mr Justice Story, - - - - 194

Appendix, No. I. Containing the Opinion of Chancellor Kent, 225
Appendix, No. II. Containing the Treaties between the Uni-
ted States of America and the Cherokee Nation, 249
Appendix, No. III. Containing the Act of Congress passed
1802, entitled • An Act regulating Intercourse with the
Indian Tribes, &c.' - - - 274
Appendix, No. IV. Containing the Acts passed by the Legisla-
ture of Georgia, relative to the country occupied by the
Cherokee Indians, within the boundaries of the State of
Georgia, - - - - - -281



THE CHEROKEE NATION



vs.



THE STATE OF GEORGIA



DECIDED .IN THE SUPREME COURT OF THE UNITED STATES,
AT JANUARY TERM 1831.



Motion for an injunction to prevent the execution of certain acts of the legisla-
ture of the state of Georgia in the territory of the Cherokee nation of Indians,
on behalf of the Cherokee nation; they claiming to proceed in the supreme
court of the United States as a foreign state against the state of Georgia; under
the provision of the constitution of the United States, which gives to the court
jurisdiction in controversies in which a state of the United States and the
citizens thereof, and a foreign state, citizens, or subjects thereof, are parties.

The Cherokee nation is not a foreign state, in the sense in which the term
" foreign state" is used in the constitution of the United States.

The third article of the constitution of the United States describes the extent
of the judicial power. The second section closes an enumeration of the cases
to which it extends, 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 state of Georgia may then certainly be sued in
this court.

The Cherokees are a state. They have been uniformly treated as a state since
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 citi-
zens of the United States, by any individual of their community. Laws have

A



2 SUPREME COURT.

[The Cherokee Nation vs. The Slate of Georgia.]
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. 3

The condition of the Indians in relation to the United States, is perhaps unlike
that of any other two people in existence. In 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 Indians are acknowledged to have an unquestionable, and heretofore an
unquestioned right to the lands they occupy; until that right shall be extin-
guished by a voluntary cession to our government. 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 relations to the
United States resemble 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.
The bill filed on behalf of the Cherokees seeks to restrain a state from the forci-
ble exercise of legislative power over a neighbouring people asserting their inde-
pendence; 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 possessions, 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 well be questioned. It savours too
much of the exercise of political power, to be within the proper province of the
judicial department.

ON the 27th of December 1S30 and 1st of January 1831,
a notice was served on the governor and attorney general of
the state of Georgia, signed by John Ross, principal chief of
the Cherokee nation, stating that on Saturday the 5th day of
March 1831, at the city of Washington, in the district of
Columbia, the Cherokee nation would, by their counsel, move
the supreme court of the United States, expected to be then
in session, for an injunction to restrain the state of Georgia,
the governor, attorney general, judges, justices of the peace,
sheriffs, deputy sheriffs, constables, and all other the officers,
agents and servants of that state, from executing and enforcing



JANUARY TERM 1831. 3

[The Cherokee Nation vs. The State of Georgia.]
the laws of Georgia or any of those laws, or serving process,
or doing any thing towards the execution and enforcement of
those laws within the Cherokee territory, as designated by
treaty between the United States and the Cherokee nation.

The notice also stated, that the motion would be made on
the grounds set forth in a bill, a copy of which was handed to
the governor and attorney general of the state of Georgia,
with the notice; which bill would be supported by the necess-
ary affidavits and documents.

On the day named in the notice, Mr Sergeant and Mr
Wirt appeared as counsel, on behalf of the Cherokee nation —
and moved the court for an injunction, as stated in the no-
tice. The state of Georgia did not appear.

The bill and a supplement to the bill were as follow:
To the Honourable the Chief Justice and the Associate Jus-
tices of the Supreme Court of the United States, sitting in
chancery.

Respectfully complaining, show unto your honours, the
Cherokee nation of Indians, a foreign state, not owing alle-
giance 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 char-
acter have been repeatedly recognized, and still stand recog-
nized 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 nation 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 no other
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



4 SUPREME COURT.

[The Cherokee Nation vs. The State of Georgia.]
to a company 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 no title to it whatever. These complainants are
informed, and believe, that the only title to which he pre-
tended 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 other Indian
nations : 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 Chris-
tianity, and probably far beyond the period when the British
islands, themselves the residence of heathen savages and bar-
barians, became a prey to a 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, can have no effect in divesting the
prior title of the Indian occupants and settlers of this coun-
try ; and, as they are informed and believe, has never been
pretended, by the European sovereigns themselves, to give
them a right to oust the Indian proprietors from their poss-
ession. 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 exclu-
sive 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 prin-
ciple to which the Indian proprietors have never given their
assent, and which they deny to be a principle of the natural
Jaw of nations, or as in any manner obligatory on them.



JANUARY TERM 1831. 5

[The Cherokee Nation vs. The State of Georgia.]
That, whatever may be the theory of this wild and chime-
rical title by discovery, as among the European sovereigns
themselves, these complainants are informed and believe, that
it was never alleged by George II. the king of Great Britain
and Ireland, or by his aforesaid grantees, the Georgia com-
pany, 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 adven-
turers 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 in 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 pretension 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 Bri^sh colony
in Georgia, between the state of Georgia, befr*e her confede-
ration with the other states, between tb" confederated states
afterwards, and, finally, between the United States under their
present constitution, and the Che-^ee nation, as well as other
nations of Indians ; in all of ^hich the said Cherokee nation
and other nations have b^n recognized as sovereign and inde-
pendent states, possessing 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 ba<i 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 trea-
ties between the United States and the Cherokee nation, as



6 SUPREME COURT.

[The Cherokee Nation vs. The State of Georgia.]
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 hon-
ourable court, to wit : the treaty concluded at Hopewell, on
the 2Sth of November 1785, between the commissioners of
the United States, and the head men and warriors of all 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 authorised commissioner William Blount,
and the chiefs and warriors of the Cherokee nation of Indians,
together with the additional article thereto made at Philadel-
phia, on the 17th of 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 Chero-
kee nation of Indians, at Philadelphia, on the 26th day of
June 1794; the treaty between the same parties at Tellico, on
the 2d of October 179S; 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 2/<Ji of October 1S05; the treaty between the same
parties, made ^ the city of Washington, on the 7th day of
January 1806; tog*>i ier w jth the proclamation of that con-
vention by the presides f the United States, and the eluci-
dation of that convention oithe 11th of September 1307; the
treaty between the United Stau* an d the Cherokee nation of
Indians, made at the city of Washington, on the 22d day of
March 1S16; another convention betwt/» n the same parties,
at the same place, on the same day; a treaty Wween the same
parties, made and done at the Chickasaw Council House, on the
14th of September 1816; another treaty between i\\e same
parties, made at the Cherokee agency, on the 8th day oi July
1817; and a treaty between the same parties, made at the city
of Washington, on the 27th day of February 1819: 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



JANUARY TERM 1831. 7

[The Cherokee Nation vs. The State of Georgia.]
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 interfer-
ence 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
honourable 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 Chero-
kees 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 theprovisionsof those trea-
ties 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, pre-
cisely in the style of two equal sovereigns, treating under
such circumstances; for example, by the first article of the
treaty of Hopewell, "the headmen andivarriors of all the
Cherokees shall restore all the prisoners, citizens of the United
States, or subjects of their allies, to their liberty.'' The
second article presents a corresponding stipulation by the
United States; thus exhibiting all the Cherokees in striking con-
tradistinction to the citizens of the United States and the sub-
jects 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 re-
garded as citizens of the United States, or any one of those
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, sove-
reign nation, with full capacity to treat as such, and to bind



s SUPREME COURT.

[The Cherokee Nation vs. The State of Georgia.]
both themselves and the United 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 deci-
sive 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 refugees might
be reached within the Indian nation of the Cherokees, by the
laws of the United States or of 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 desig-
nated; 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 honours with
a farther specification of the provisions 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 own 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 honours, that the second of the treaties above 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 Washing-
ton to that body, in August 1790, and their answer thereto,
as extracted from the journals of the senate of the United
States; a copy of which was annexed and made part of the
bill. This treaty of Holston, entered into by the United



JANUARY TERM 1831. 9

[The Cherokee Nation vs. The State of Georgia.]
States, after the adoption of the present constitution of
the United States, and under the double solemnity of a pre-
vious consultation with the senate, and their subsequent ratifi-
cation of the treaty, contains the recognition of every feature
of the separate 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 com-
plainants pray the special reference of your honours. 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 honours, 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 remain-
ing in their original hunter state. Of this fact the fourteenth
article of the said treaty of Holston furnishes 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