THE DECISIONS

01'

THE SUPREME COURT OF THE UNITED STATES

AT

.JANUARY TERM 1831.

TnE CHEROKEE NATION vs. TRE STAT.E OF GEORGIA,

Motion for an injunction to prevent the execution of certain acts of the legisla­
ture cif the state of Georgfa 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 st�te 2;ainst the state of Georgia; under
the provfsion of the constitution of the United States, which gives to the court
jurisdiction In controversies in which a slate of the United States or the
citizens thereof, and a Coreign 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 coru;titution of the United States describes the extent
of the judicial power, The second section' closes !In em1meration of the cas;s
to which it es!cnds, 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 stale 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 tre:ited as a state �ince
the settlement of our country. The numero1is treaties ma,lc with them by the
, United Slates recognize them as a people capab!e of tnaintaining the relations.
of pcaco and war; of ueing responsible in their political, char.icier for any
violation of their engagement�, or for :my aj!;gression committed on !he citi­
:z:ens of the United Statell by any imlivi<lual c,f their community. Laws have
VoL, V.-A
 SUPREME COtTRT.
[The Cherokee :Satlon:is. The State of Georgia.]
been enacted in tho spirit of thcso treaties. The acts of our govemmenl
plainly recognize the Cherokee nation _as a state; and the courts are bound by
those acts.
The condition of the Indians, in rclatiop to the United Stales, is perhaps unlike
that of any other· two people in existence, In general, nations not owing
a common allegi:mce are· foreign to each other. The terin 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 cardiual distinctions
which exist no where else.
The Indians lire acknowiedged" to have an unquestionable, aml heretofore an
unquestioned right to the lands they occupy, until that right shall be extin­
guished by a voluntary cession to our governipent. It may well be doubteil
whether those tribes which reside within the ackno\vledged boundaries of tbo•
-United States can with strict accnracy· be denominated foreign nations. They
may more correctly perhaps be denominated domestic dependent nations.
They occupy a territory to which we assert II title independent of their will,
which must take effect in point of posses�oo when their right of possession
ceases-meanwhile they are in a state of JlUJlilage. Their relations to tho
United States resemble that of a ward to his guardian. They look to our
government for protection; rely IIJlOn its kindness and its power; app_eal 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•
qle exercise of legislative power over a neighbouring people asserting their in­
depenJence; their right to which the state denies. On several of the matters .
alleged in tlie bill, for exampl_e on the Jaws making it criminal to exercise the
· usual-power of self gevcrnment iii their own country by the Cherokee nation,
this court cannot interpose, at least in the form in which those matters arc·
, • pr"5ented. That part of the bill which respects the land occup,ied by the
Tmlians, .and prays the aid of the court to protect their possessions, may be
more doubtful. "The mere question of right might p·erhaps be decided by this
court, in a proper case, with proper parties•. But the court is asked to do nrorc
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 1:ourt may well be questioned. It savours too
much of the exercise of political power, to be within the proper province of the
judicial department.·

Tms case came before the court on a motion on behalf of the

Cherokee nation of. Indians for a subprena, and for an injunc­
tion, to restrain the sfate of Georgia, the governor, attorney­
_general, judges, justices of the peace, sheriffs, deputy sheriffs,
cmistables;anil others the officers, agents, and servants of that
state, from executing and enforcing the laws of Georgia or any
of these laws, or serv:ing process, or doing any thing towards
the execution or enforcement of those laws, within the Chero­
kee territory, as design;ited by treatv bet.ween the United
St:itc>s ;mcl the C:hcrokcc nation.
Thr. motion }Y:lS macle, after no! ire. and a copy or lht> oill
 JANUARY TERM rn:H 3

[The Che1okec Nation vs. The Stale of Georgia. j

lilcd al the instance and undet the authority of the Cherokee na­
tion, hatl been served on the governor and attorney-general ot;"
the state of Georgia on the 27th December 1830, and the lst_of
Janu·ary 1831. The notice stated that the motion would �e
made in this court on Saturday, the 5th day of March 1831.
The bill was signed by John Ross, principal chief of the
Cherokee nation, and an affidavit, in the usual form, of the.
facts stated in the bill was annexed; which was sworn to be­
fore a justice of the peace of Richmond county, state of
Georgia.
The bill set forth the complainants to be " the. Cherokee
nation of Indians, a foreign state, not owing ,allegiance to the
United States, nor to any state of this union, nor to any prince,
potentate or state, other than their own."
"'fhat from time immemorial the Cherokee n.ation have
composed a sovereign and independent state, and in this cha-
1-acter have been r(?peatedly recognized, and still stand recog­
nized by the United States, in the various treaties subsisting
between their nation and the United States."
That the Cherokees were the occupants and owners of the
territory in which they now reside, before the first approach
of the white men of Europe to tl � western. continent; -'' de­
riving their title from the Great Spirit, who is the common
father of the human fainilv, and to whom the whole earth be­
longs." Composing the Cherokee nation, they and their- an­
cestors have been and arc the sole and exclusive mastei:s of
this territory, governed by their own laws, usages, and
customs.
The bill states the grant, by a charter in 1732, of the country
on this continent lying between the Savannah and Alatahama
rivers, by George the Second, "monarch of several islands
on the eastern coast uf the Atlantic," the:same country being
then in the ownership of :3evcral distinct,sovcreign, and inde­
pendent nations of Indians, and amongst them the Cherokee
nation.
The foundation of this charter, the bill states is asserted to
Lc'the right of discov,iryto the: territory granted; a ship man­
uell by the subjects oflhc king havmg, •' about two ccnlurie:s
:md a half bciarc. sailed along; the ·coa::,t of the wcstcm hemi­
sphere, fron. the fifty sixth to the lhirty-di;hth ·dt:!!,rcc of uorlh
4 SUPREME COURT.
[Tho Cherokee Nation 111. The State of Georgia.]
latitude,· and looked ·upon th� face of that coast without even
landing on any part of °it." 'Fhis right; as affecting the right
of the Indian nation, the bill denies;· and asserts that-the whole
length to which the right of discovery is claimed to extend
among �uropeau nations is to give to the first discoverer
the prior and exclusive right to purchase these lands from the
Indian proprietors, .against all other European sovereigns:
to which principle the Indians have never assented; and which
they deny to be a principle of the-natural law of nations, or
obligatory on them.
The bill alleges, that it never was claimed under the charter
of George ·the Second, that the grantees had a right to dis­
turb the self government of the Indians who were in possess­
ion of the country; and that, on the contrary, treaties were
made by �he ·first adventurers with the Indians, by which a
p?t of the territory was acquired by them for a valuable con­
sideration; and ·n o pretension was ever made to set up the
British la\.!S in the country owned by the Indians. 'J.'hat va­
rious treaties have been, from time to time, made between the
British colony in Georgia; _between the state of Georgia, be­
fore her confederation with the other states; between the con­
federate states afterwards; and, finally, between the United
States under their present constitution, and the Cherokee
nation, as well as other nations of Indians: in all of which
the Cherokee nation, and the other nations have been recog­
nized as sovereign and independent states;. posses.�ing both the
exclusive right to their territory, and the exclusive ·right of
self gover?JDent within that territory. That the various pro­
ceedings from time to time had 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.
The bill proceeds to refer 'toJhe treaty concluded at Hope­
well on the 28th November 1785, "between the commissiott­
ers of the United States and head men and warrior� of all the
tJhe:\°okees;'' the treaty of ·Holston of the 22d July 1791,
"between t?e president of tlic United States by his duly
·authorized commissioner, W.illiam Blount, and the chiefs and
warriors of the Cherokee nation of lndiai1s," and_ the additional
 JANUARY TERM 1831. 5
[The Cherokee NaUon t1s. The Stale of Georgia.]
article of 17th November 1792, made at Philadelphia by
Henry �nox, the secretary at war, acting on behalf of the
United States; the treaty made at Philadelphia on the 26th
June 1794; the treaties between the same parties made at Tel­
lico 2d October 1790; on the 24th October 1804; on the 25th
Octobel"l805, and the 27th October 1805; the treaty at Wash­
ington on the 7th January 1806, with the prociam::ition ofthat
convention by the president, and the elucidation of that con­
vention of 11th September U307; the treaty ·between the United
-�tates and the Cherokee nation made at the <iity of Washing­
ton on the 22d day of March .1816; anot:her convention made
at the same place, on the same day, by the
same parties; a
treaty made at the Cherokee agency on the 8th July 1807; and
a treaty made at the city of Vvashington on the 27th February
1819: "all of which treaties and conventions were duly: rati­
fied and confirmed by the senate of the United States, and be­
came thenceforth, and still are, a part of the supi:eme law of
the land."
By those treaties the bill_ asserts the Cherokee nation of In7
dians are acknowledged and treated with as sovereign and in­
dependent states, within the boundary arranged by those trea­
ties: and that the complainants aTe, within the boundary -estab­
lished by the treaty of 1719, sovereign and independent; wi�h
the right of self government, without any right of interfer­
ence with the same on the part of·any state of the United
States. The hill calls the attention of ihe court to the parti­
cular provisions of those treaties, "for the purpose of verify­
ing the truth of the general principles deduced from ihem.."
The bill alleges, from the earliest Ltercourse between the
United States and the Cherokee nation, an ardent desire has
tieen evinced by the United States to leacf th:e Cherokees to a
greater degree of civilization. This is shown by the fourteenth
article of'the treaty of Holston; and by the courslr•,pursued ·
Jjy the United States-in 1808, when a tre:i.ty was made, giving
to a portion of the nation which preferred the· hunter state a
territory on the west of the Mississippi, in exchange for a part
of the lower country of the Cherokees; and assurances were
given by the president that those who chose to remain for the
purpose· of engaging in-the pursui"ts of agricultural and civi­
lized life, in the country they occupied, might rely " on tlie
6 SUPREME COURT.
[The Cherokee Nation vs. The Stnle of Georgia,]
patronage, aid and good neighbourhood of'the United States.''
The treaty of 8th July 1817 wafl made to carry those pro­
mises into effect; and in reliance on them a large cession of
lands was thereby made: ai\d in 1819, on the 27th February,
another treaty was .made, the preamble of which recites that
a g1·eaier part of the Cherokee nation ·had expressed an ear­
nest desire to rem:,.in on this side of the Mississippi, and were
desirous to commence tltooe measures whiclt tltey deem
necessary to lite civilizatioh_and presenJlttion of tlteir na­
tion; to give effect to which 'object, without Jelay, that treaty
was declared to be made; anU another large cession of their
lands was, thereby, made bylthem to the United States.
By a reference to the several treaties, it will be seen that a
fund is provided for the estalllishment of schools; and the bill
asserts th?-t great progress haI,peen made by the Cherokees in
civilization and in agriculture.
· They h:i-ve established a constitution and form of govern­
ment, the leading feature� of which they have borrowed from
that of the United Stat< s; dividing their government int6
three ·separate departments, legislative, executive and judicial.
In conformity with this constitution, these departments have
all'been _organized .. They have formed a code of laws, civil and
criminal, adapted to their situation; l1ave erected co·urts to ex­
pound and apply thpse· laws, and organized an executive to
ca�ry them -into effect They have established· schools for the
·education of their children, and churches 'in which the Chris­
tian religion is taught; they have abandoned the �unter state,
ah'd become agriculturists, mechanics, and herdsmen; and,
under provocations long continued and hard to be borne, they
have observed, with fidelity, all their engagements by treaty
with the United States.
Under the promised "yatronage and good neighbourhood"
of the United States, a portion of the people of the nation
have become civilized Christians and agriculturists; and the
bill alleges that in these respects they are willing to submit to
a comparison wiLli their white brethren around them.
The bill claims for the Cherokee nation the benefit of the
provision in· the constitution; that treaties arc the supreme
law of the I.and; and all judges are bound thereby: of the dc­
cbration in the constitutieu, that no state shall pass any law
 JANUARY TERM 1831, 7
[The Cherokee Nation tis. The State of Georgia.]
impairing the obligation of contracts: and avers that all the
treaties referred to :1.re contracts of the highest character and of
the most solemn obligation. It asserts that the constitutional
provision, that congress shall hav� power to regulate com­
merce with the Indian tribes, is a power which from its n.a­
ture is exclusive; and consequently forbids all interference by
al!Y one of the states. That congress have, in execution of
this .Power, passed various acts, and among others the act of
1802, "to regulate trade and intercourse witp the I11di:m tribes,
and to preserve peace on the frontiers." The objects of these
.acts are to consecrate the Indian boundary as arrange<! by the
treaties; and they contain clear recognitions of the sovereignty
of the Indians, and of their exclusive right to ·give and to exe­
cute the law within that boµndary.
The bill proceeds to state that, in violation of these treaties,
of the .constitution of the United States, and of the �f of
congress of 1802, the state of Georgia, at a session of bet
legislature held Jn December in the year 1828, passed an act,
which received the assent of the governor of that state on the
twentieth day of that month and year; entitled, " an act to
add the territory lyiµg wlthin this state and occupied by the
Cherokee Indians, to the counties of Carroll, De Kalb, Gwinett,
Hall, and Habersha.m, and to extend. the laws of this state
ov-er the same, and for other purposes." That afterwards, to
wit in the year 1829, the legislature of the said state of Georgia
passed another act, whicb received the assent of the governor
on the 19th December of that year, entitled, '' an act to add
the territory lying within the chartered limits of Georgia, now
in the occupancy. of the Cherokee Indians, to the counties of
Carroll, De Kalb, Gwinett, -Hall, and Habersham, and to· ex­
tend the laws of this state over the same, and to annul all laws
and ordinances made by the Cherokee nation of Indians, and -
to provid� fpr the compensation of officers serving legal pro­
cesses jn said territory, and to regulate the 't0$timony cif In­
dians, and to repeal· the ninth section of the act of 1828 on this
subject."
The effect of these .laws, and their purposes, are l!tatell to be,
to.parcel out the territory' of the Cher�kees; to extend aJl the
laws of Georgia over the same; to abolish the Cherokee Jaws,
ancl to det,rive the Cherokees of the protection of their laws;
 8 SUPREME COURT.
[the Cherokee Nation tis. The State of Georgia.]
to prevent them, as. individuals, from enrolling for emigration,
under the peiia1ty of indictment before tlie state courts of
Georgia; to make it murder 'in. the officers of the Cherokee
government to inflict the sentence of death in conformity with
the Cherokee laws, subjecting them all to indictment therefor,
and death by hanging;, extending the jurisdiction of the jus­
tipes -0f the peace of Georgia into the Cherokee territory, and
authorising the c�ling out of the militia of Georgia to enforce
the process; and finally, declaring that no Indian, or descend­
ant of any Indian, residing within the Cherokee nation ofln­
dians, shall be deemed a competent
. witness in any court of
the smte of Georgia, in which a white person may be· a party,
except such white person resides within the said nation.
. All these ·1aws are avetred to be null and void: because :re­
pugµant to treaties in full 'foree; to the constitution of the
United States; and to the act of �ongress o( 1802.
The bill then proceeds to state the interference of president
Washington for the protection of the Cherokees, and thi:l re-_
solutions of the senate in cons�quence of his reference of the
subject of· intrusions on their -territory. That ih 1so2; the
state of Georgia; in ceding to -the United States a larg� body of
lands withjn ,her alleged charter.e4 .limits, and imposing a co11-
dition that tlfe Indian title should be peaceably extinguished,
admitted the subsisting Indian title. That cessions of territory
have .always been voluntarily made by the Indians in ,,their na..
tional character; and that cessions have been made 01 as much
lan.d as could..be spared, until the cession of 1.819,'- "when
they had reduced. their territory .into as small a compass as
their own convenience would bear; and they then accoro­
ingly resolved to c�de no more." The bill then refers to the
various applications of Georgia to the ·united States to extin­
guish the Indian title -by force, and her. �enial of the obliga­
tions of the treaties wit\} the Cherokees; although under these
treaties large additions to her disposable laHds 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 �uiding 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 complain-
 JANUARY TERM 1831•. 9

[The Cherokee Nation vs. The State of Georgia.]

ants, or t.o 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 state of Georgia, not having succeeded-in these applica­
tions to the government o"f the United States, have resorted
to legislation, intending to force, by those means, the Indians
from their territory. Unwilling to resist by force of arms
these pretensions and efforts, the bill states, that •application
for protection, and for the execution of the guarantee of the
treaties, has been made by the Cherokees to the present presi­
dent of the United States, and they have received for answer,
"that the president of the United States has no power to pro­
tect them ngainst the laws of Georgia."
The bill proceeds to refer to the act of congress. of 1S30,
entitled "an act to provide for an exchange of lands with the
Indians residing in any of the states or territories,-and for
their removal west of the Mississippi." The act is to apply
to such of the Indians as may choose to' remove, and by the
proviso to it, nothing contained in the act shall be construed
as authorising or directing.the violation of any existing treaty
betw.een the U nitecl States and any of the Indian tribes:
The complainants have not chosen to remove, and this, it
is alleged, it is sufficient for the complain'lnts to say: but they..
proceed to state, that they are fuUy satisfied with the country
they possess; the climate is salubrious; it is convenient for
commerce- and intercourse; it contains schools, in which they
can obtain teachers- fr:om the neighbouring states, and places
for the worship of God, where Christianity is taught by miss­
ionaries and pastors easily supplied from the United States.
The country, too, "is consecrated in their affections from
having been immemorially the property and resid�nce 6f their_
ancestors, and from containing now the graves of their fathers,
relatives, and friends." Little is known of the country west
of thP. Mississippi; and if accepted, the bill asserts it will be
the grave not only of their civilization and Christianity, but of
the nation itself.
It also_ alleges that the portion of the nation who emigrated
VoL. V.-J3
10 SUPREME COURT.
[The Cherokee :Nation vs. The State of Georgia.]
under the patronage and san.ction of the. president in 1_808 and
1809, and settled on the tcrrit-0ry asi<i�ned to tllem on the
Arkansas river, were afler\\lards required to remove again;
and that they did so under the stipulations of a treaty made
in May 1828. The place, to which they removed under this
last treaty, is said to be exposed to incursions of hostile In­
dians, and that they are "engaged in constant scenes of kill­
ing and scalping, and have to wage a war of extermhiation
with more powerful tribes, before whom they will ultimately
fall." They have th Prefore, decidedly rejected the ofler of
exchange. The bi!l then procep,J,; to state various acts under
the authority of the laws of Georgia, in defiance of the trea­
ties referred to, and of the constitution of the United States,
as expressed in the act of 1802; and that the state of Georgia
nas declared its determination to continue to enforce these
law.s so long as the complainants shall. continue to occupy
their territory.
But while these laws are enforced in a manner the most
-harassing and vexatious to your complainants, the design
seems to have been· deliberately formed to carry no one of
these cases to final decision in the state courts; with the view,
as the complainants believe and therefore allei:;e, to prevent
any one of the Cherokee defendants .from carrying those cases
to the supreme court of the United States, by writ of error
for review, under the twenty-fifth· section of the act of con­
gress-of the Un�ted States, passed in the year 1789, and entitled
"an act to establish the jqdicial courts of the -United States."
Numerous instances of proceedings are set forth at Inrge in
the bill. The complainants expected protection from these
unconstitutional acts of Georgia, by the troops of the United
States; but notice has been given by the commanding officer
of those troops to John Ros11, the prinr.ipa] chief of the Chero­
kee nation, that " these troops, so· far fro� protecting the
Cherokees, would co-operate with the civil officers of Georgia,
in enforein,g their Jaws upon them." Under these circum­
stanees it is said that it cannot but be seen that unless this
court shall interfere, the complainants have but these alterna­
tives: either. to surrender their lahd!> in exchange for othCEB
in the western wilds of this continent, which would be to seal,
at once, the doom of their· civilization, Christianity:, and na-
 JaNUARY TERM 1831. 11
[The Cherokee Nation t,S. The State of Georgia.]
tional existence; or to surren<ler their national sovereignty,
their property, rights and liberties, guarantied as these now are
by so many treatieS", to the rapacity and injustice of the state
of Georgia; or_ fo arm themselves in defence o( these sacred
rights, and fall sword in hand, on: the graves· of their fathers.
These proceedings it is: alleged .are wholly inconsistent with
equity and good cunscien.ce, tend to .the manifest w.rol!g of the
complainants; and violate the faith· of the treaties to. whtch
Georgia and the Unit-ed States ar'e parties, arrd--of th El constitu-·
tion of the Unitcd States. These: wrongs are .or a cliarac{er
wholly irremediable by the common law ; ancl .the· ·se c.oin­
plainants are wholly without remedy of any kind; except · by
the interposition of this honourable court.
The bill avers that this court fias, by the constitution and
laws of the, '£!.nited Sfates, original jurisdiction of contro-:
versies between a state and a foreigl} state, without any restric­
tion as to the nature of the. controversy; that, liy the constitu­
tion,. treaties are the supreme _law of the land. . That as a
foreign state, the complainants claim the exercise of .the pow­
ers of the eourt to protect them in their rights, and that-the
laws of Georgia, which interfere with their rights and 'pro­
perty; sh;tll be declared void, and their execution ·be perpetu­
ally' enjoined.
The bill slates that John Ross is " the principal. chief and
executive· head of the Cherokee nation;" and that, in a full and
regular council of that nation, he has been duly authorised· to
institute this and all other suits whieh may become necessary
for the as.sertion of the rights-of th� entire nation..
The bill then proceeds in the usual form to ask and answer
to th_e allegations. contained in it, and "·that the said state of
Georgia, her governor, attorney-general, judges, magistrates,
sheriffs, deputy sheriffs, constables, and all other lier officers,
agents, and servants,•civil and military, iµay be enjoined and
prohibited from executing the laws of that state withi?1 the
boundary of the Cherokee territory,.as prescribed by tM trea­
ties now subsisting between the United States and tlie Ch�ro­
kce nation, or interfering in any manner with the rights of self
government posse�sed by the Cherokee nation within thefonits
of their territory, as defined by the treaty; that the two laws of
Georgia before mentioned as having been passed . in the years
12 "SUPREME COURT.
,[The Cherokee Nation vs, The State of Georgia,]
1828 and 1829 may, by th_e decree of this ]1onourable court,
be declared unconstitutional and void; and that the state of
G�ori?;ia, and all her officers, agents, and servants may be for­
ever enjoined from interfering with the· lands, mines, and
other property, real and personal, of the Cherokee national
with the persons of the Cherokee people, for, or on account
of any thing done by them within the limits of the Cherokee
territory; that the pretended right of the state of Georgia to
the possession, government, or control of the lands, mines,
and other property of the Cherokee nation, within their ter·
ritory, may, by this honourable court, be.declared to be u11-
founded and void, and that the Cherokees may be left in the
updisturbed possession, use, and" enjoyment of the same, ac­
cording to their own sovereign right and pleasure, and their
own laws, usages, and customs� free from any _hindrance, mo­
lestation, or interruption by the state of Georgia, her officers,
agents, and servants; that these complainants may be quieted
in the possession of all their �ights, privileges, and immuni­
ties, under their various treaties with the United States; and
that they may have such other and farther relief as this hon­
ourable court may �eem consistent with equity and good con­
science, and as the l_!ature of their case may require."
On the day appointed for the hearing,_the counsel for the com­
plainants filed.a supplemental bill, sworn to by Richard Taylor,
Jqhn Ridge, and W. S. Coodey of the Cherokee nation of
Indians, before a justice of the peace of the.county of Wash­
ington in the district of Columbia..
The supplemental bill states; that since their bill, now sub­
mitted, was drawn, the following acts, demonstrative of the
determination of the state of Georgia to enforce her assumed
-authority over the complainants and their territory, property,
and jurisdiction, have taken place.
The individual, called in that bill Corn Tassel, and mentioned
as having been arrested in the Che;okee territory under process
issued under the laws of Georgia, has been actually hung; in
defiance of a writ ·of error allowed by the chief justice of this
court to the final sentence of the court of Georgia in his case.
�at writ of erro� having been received by the governor of the.
state was, as the complainants are informed and believe,
immediately commu.nicated ·by him to the legislature of the
 JANUARY TERM 1831.

[The Cherokee Nation 'DS. The State of Georgia,]

state, then in session; who promptly resolved, in substance,
that the supreme court of the United States had no jurisdiction
over the subject, and advised the immediate execution of the
prisoner, under the sentence of the state court; which accord-
ingly toof place.
The complainants beg leave farther to state, that the legis­
lature of the state of Georgia, at the same session, passed the
following laws, which have received the sanction of the go­
vernor of the state.
"An act to authorize the survey and disposition· of lands
within the limits of Georgia, in the occupancy of the Chero­
kee tribe of Indians, and all other unlocated lands within the
limits of the saicf state, claimed as Creek land; and to author­
ize the governor to call out the military. force to protect su·r�
veyors in the discharge of their duties: arid to provide for the
punishment of persons who may prevent, or attempt to. pre­
vent any surveyor from performing his duties, as. pointed out
by this act, or who shall wilfully cut down or deface any
marked trees, or remove any_]and-marks which may be made
in pursuance of this act; and to protect the Indians in the
peaceable possession of their improvements, ancl of the lots on · ·
which the same may be situate/'
Under this law it is .stated that the lands within the boun­
dary of the Cherokee territory are to be surveyed, and to be
distributed by lottery among the people of Georgia.
At the same session the legislature of GeorKia passed an­
other act, entitled, "an act to declare void all contracts here- ,
after made with the Cherokee Indians, so far as the Indians
are concerned;" which act recciv.etl the assent of the governor
of the state on the 23d of December ·1sso.
The legislature of Georgia, at its same session, passed ano-·
ther law, entitled, "an act to provide for the temporary dis­
posal of the improvements and possessions purchased from
certain Cherokee Indians and residents;" which act received
the assent of the governor of the state the 22d December 1·sso�
At its same session the legislature of Georgia passed another
law, entitled, "an act to prevent the exercise of assumed
and arbitra,ry powei: by all persons under prctc�t of authority
from the Cherokee ·1nuians and their laws, ancr to prevent
white persons from residing within that part of the chart�d
14 SUPREME COURT.
[The 0herokee Nation "'· Th'f State of Georgia.]
limits of Georgia occupied by .the Cherokee Indians, and to
provide a guard for th'e protection of the gold mines, and lo
enforce the laws of the state within tile aforesaid territory."
At the same session of its legislature, the state of Georgia
passed another act, entitled "an act to authorize the governor
to take possession of the gold, silver, and other mines, lying
and being in that section of the char�ered limits of Georgia,
commonly called the· Cherokee country, ancl those upon all
other unappropriated lands.of the state, and for punishing any
person or per1mns who may hereafter be found trespassing
upon the mines."
The supplemental bill further states the proceetlings of the
governor of Georgia, under these laws; and that he has station-
. ed an armed force of the citizens of Georgia, � the gold
mines within the 'territory of· the complainants, who are en­
gaged in enforcing the laws of Georgia.· Additional acts of
violence and injustice are said to have bee.n done under the
authority of the laws of Georgia,'and by her officers and agents,
within the Cherokee territory.
The complainants allege that the sevei:al legislative acts,
herein set forth and referred to, are in direct violation of the
treaties enumerated in their bill. to which this is a.supplement,
as well as in direct violation .of tl}e constitution of the United
States, and the act of cont,rress- passed under its authority in
the year 1802, entitled, "an act to- reg,.ilate trade and inter­
course with the Indian tribes, and to preserve peace on the
frontiers."
They pray that this supplement· inay be taken and teceived
as a part of their. bill; that the several laws of Georgia herein
set forth may be declared by the aecree of this court ta be
null and void, on the ground of the -repugnancy to the consti­
tution, laws, and tre.aties set forth above, and in the bill to -
which this is a supplement; and that these complainants may
h'ave- the same relief by injunction and a decree of peace, or
otherwise, according to equity and go_od. C!)nSci'ence, against
these laws, as against those which are the subject o-f their bill
as first drawn.

The- case was arg,.ied on the part of the complainants by Mr

Sergeant and Mr Wirt. No counsel appeared for the state
of Georgia.
 JANUARY TERM· 1831. 15

[The Cherokee Nation 11J. The State of-Georgia.]

For the complainants it was contended,
1. That the parties before t11e court w·ere such as, under the
constitution, to give to this court original jurisdiction of the
complaint made by the one against the other,
2. That such a case or controversy, of a judicial nature, was
presented by the bill, as to warrant and-require the i!1terposi­
tion of the authority of the court.
3. That the facts stated by the comphinants exhibited such
a case in equity, as to entitle them_ to the specific remedy by
the injunction prayed for in the bill.

Mr Chief Jus_tice MARSHALL delivered the opinion of the

Court.
This bill is brought hy the Cherolcee nation, praying an
injunction to restrain the state of· Georgia from the execution
of certain laws of that state, which, as is alleged, go di.rectly to
annihilate the Cherokees as a political society, and to seize, for
the use of Georgia, the lands of the nation which hn.ve been
assured to them by the Unitcd States in solemn treaties 1·e­
peatedly made and still in force.
If courts were permitted to in_dulge their sympathies, a case
better calculated to excite them can scarcely be imagined. A
people once numerous, powerful, and truly independent,
found by oµr ancestors in the quiet and unconti:olled ·possess­
ion of an ample domain, gradually sinking beneath our supe­
rior policy, our arts and our arms, have yi�lded their lands by
successive treaties, each of which contains a solemn guarantee
of the residue, until they retain no more of their formerly ex­
tensive territory than is deemed necessary to their comfortable
sqbsis.tence. To i>rcserve this remnant, ,the· present application
is made.
Before we can look into the merits of the case, a-prelimi­
nary inquiry presents itself. Has this court jurisdiction of
the cause?
The third article of the con�titution describes the extent of
the judicial power. The second section closes an enumera­
tion of the cases to which it is extended, with ,. controver­
sies" "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
16 SUPREME COURT.
[The Cherokee Nation flS. The State of Georgia.]
cases in which a state shall be 2 party. The party defendant
may then unquestionably be sued in this court. May the.
plaintiff sue in it?. Is fl:.e Cherokee nation a foreign state in
the sense in whi"h that term is used in the constitution?
The counsel for the plaintiffs have maintained the affirma­
tive of this proposition with great earnestness and ability.
So much•of the argument as was intended to prove the char­
acter'of the Cher<_>kees as -a state, as a distinct political society,
separated from others, capable of managing-its own affairs and
govern�ng itself, ha�, 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 then:i by the United States recognize them
as a people capable of maintaining the relations of peace and
war; of being responsible in their iJolitical character for any
violation of their engagements, or for any aggression com­
mitted 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 recog­
nize the Cherokee uation as a state, and the courts arc bound
by those acts.
A question of much more difficulty remains. Do the Che­
rokees constitute a foreign state in the sense of the constitu­
tion?
The counsel have shown conclusively that they are not a
state of the union, and have insisted that individually they are
aliens, not owing �llegiance to the United States. An aggre­
gate of aliens composing a state must, they say, be a foreign
state. Each individual· being foreign, the whole must be
foreign.
T,his argument is imposing, but we must examine if 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 he relation of the Indians to.the
United States is marked b f peculiar and cardinal distinctions
which exist ho where else.
 JANUARY TERM 1831. 1.7
[The Cherokee· Nation tlS. The State of Georgia.]
The "Indian territory is admitted to compose a part of the
United States. In all our maps, geographical treatises, histo­
ries, and laws, it is so considered. In all our intert:ourse
with foreign: nations, in our c_ommercial 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 pre­
ceded. 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 un-
settled construction of the confederation 1 by which they ceded
all their lands to that state, taking back a limited grant to
thems!!lves, in which. they admit their dependence.
Though the Indians are acknowledged. fo have an unques­
tionable, and, heretofore, unquestioned right to the lands they
occupy, until that right shall be cxtiqguished by a voluntary
cession to our gov.ernment; yet it may well be doubted whether
those tribes which reside within the acknowledged boundaries
of th.e United States can, with strict accuracy, he denominated
foreign_ nations. They may, more correctly, perhaps, be de­
nominated domestic dependent nations. They occupy a ter­
ritory to which we assert a title independent of their wi11,
which must take effect in point of possession when their right
of possession ceases. Meanwhile they are in a state of pu­
pilage. 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 fol' 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 fo,m a political connexion with them, would
VoL. V.-C
 18 SUPREME COURT.
[The Cherokee Nation 111. The State of Georgia.].
be considered by all as an invasion· of our territory, and at,
act of hostility.
These considerations go far to. support the opinion, that the
framers of our co.nstitutiori ·had not the Indian tribes in view,
when they opened the courts of the union to controversies
between fl state or the citizens thereof, ancl 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 piight furnish some rea­
son 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 termforeign
state, were there no other part of the constitution which might
shed light on the meaning of these words.. But we thirrk that
in construing them, considerable 1id is furnished by that clause
in the eighth s!!ction·of the third article; which empowers con­
gress to "regulate commerce with ioreign 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 de­
signated by a distinct appellation; ancl a� this appellation can
be applied to neither of the others, neith� can the appellation
distinguishing either of the others be in fair construction ap­
plied to them. The objects, to which the power of regulating
commerce might be directed, arc clivid ,d into three distinct
classes-foreign nations, the several states, and Indian tribes.
When forming this articl�, the convention considered them
as entirely distinct. \Ve cannot assume that the distinction
was lost in framing a subsequent -article, unless there he
something in its languag� to authorize the assumption.
The counsel for the plaintiffs contend that the words " In-
 JANUARY TERM 1831. 19

[The Cherokee Nation vs. The State of Georgia.]

dian 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 th.e confede­
ration. Intending to give the whole power of managing those
affairs to the government about to he instituted, the conven­
tion conferred it explicitly; and omiUed those qualifications
which embatTassed the exercise of it as granted in the confed­
eration. This may be a�mitted without weakening the con­
struction which has been intimated: Had the Indian tribes
been foreign nations, in the view of the cqnvention; this ex­
clusive 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 contradis­
tinguishing tqem from foreign nations. Congress might
have . been· empowered "to regulate commerce with for­
eign nations, including. the Indian tribes, and among the
several states."· This language. would have suggested it�
self to statesmen who considered the Indian tribes as foreign
nations� and were yet desirous of mentioning them particularly.
!t has been also said, that the same words _have not necessa­
rily the same meaning attache:.l to them when found in differ­
ent parts -of the same· instrument: tl;ieir meaning is con­
trolled by the context. This is undoubtedly true. .In com­
mon language the same word has. various meanings, aii<l the
peculiar sense in which it is used in any sentence is -to be de­
termined by the context. This may not be eq';}ally 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 particu­
larly, they are mentioneu as separate in terms clearly eontra­
distinguishing. them from each ·other. We perceive plainly
that the constitution in this article does not comprehend In­
dian. h·ibes in the general term "foreign nations;" not we
presume because a tribe may not be a nation, but hecause it is
not foreign to the United States. When, afterwards, the term
"foreign state" is introduced, we cannot impute to the conven�
tion the intention to desert its former meaning, and to com­
prehend Indian tribes within it, unless the context force that
20 SUPREME COURT.
[The Cherokee Nation"'· The. State of Georgia.]
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. ls the matter of the bill the proper subject for ju­
dicial inquiry and decision? · It seeks to restrain a state from
the forcible exercise of legislative power over a neighbouring
people, asserting their independence; their right to which the
state denies. On several of the matters alleged in the bill,
for example on t.he 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 Jeast in the
form in which those matters -are presented.
'"':'hat 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 per­
haps 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. T11e propriety of
�uch an interposi.:ion 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 opinio.n on the.point respecting parties makes it unne­
cessary to decide this question.
If it be true that the Cherokee ·nation �ve rights, this is
not the tribunal in which those rights are to hr. .1sserted. If
it �e true that wrongs have been inflicted, and that still greater
are to be apprehended, this is not the tribunal which can re­
dress the past or prevent the future.
The motion for an injunction is denied.

Mr Justice JoHNSON.-In pursuanoe of my practice in giving

an opinion on 3:ll constitutional questions, I mu�t present.my
views on this. With the m.orality of the case I have no con­
ct:rn; I am called upon to·consider it as a legal question.
 JANUARY TERM 1831. 21
[The Cherokee N�!JO? ·us. ThQ,,State of Georgia.]
The object of �is bill is to claim the., interposition of this
court as the means of preventing the state of Georgia, or the
public functionaries of the_ state of Georgia, from asserting
certain rights and powers over the country and people of the
Cherokee nation.
It is not enough, in order to come before this court for re­
lief, that a case of injury, or of cause to apprehend injury,
,hould be made out. Besides having a cause of action, the
,omplainant must bring himself within that description of par­
ties, who alone are permitted, under the constitution, to bring
an original suit to this court.
It is essential to such suit that a state of this union should
be a party; so says the second member of the second section
of the third articl� of the constitution: th·e other party must,
under the control of the eleventh amendment, be another state
of the union, or a foreign state. In �is case, the avermerit is,
that the complainant is a foreign state.
Two preliminary questions then present themselves.
1. Is the complainant a fo�eign state in the sense of the con­
stitution?
2. Is the case presented in the bill one of judicial cog­
nizance?
Until these questi ns are disposed of, we_ have no right to
look into the nat the controversy any farther than is ne-
cessary to determ ;em. The first ofthe questions necess-
arily resolves itsel'. into two.
1. Are the Cherokees a state?
2. · Are they a foreign state?
1. I cannot but think that there are strong reasons for doubt-
ing t}le applicability of the epithet state, to a people so low
in the grade of organized society as our Indian tribes most
generally are. I would not here be understood as speaking.
of the Cherokees under their present farm of government;_
which certainly must be classed among . _the most approved
forms of civil governmen� Whether "it ,can be yet said to
have received the cW1sistency which entitles that people to
admission into the family of nations is, I conceive, yet to be
determined by the executive of these states. JJntil then I
must think that we cannot recognize it as an existlng state,
 22 SUPREME COURT.
[The Cherokee Nation"'· The State of Georgia.]
under any other character than that which it has maintained
hitherto as one of-the Indian tribes or nations.
There are great difficulties hanging over the ·question, whe­
ther they can be considered as states under the judiciary
article of the constitution. 1. They never have been recognized
as holding sovereignty over the·territory they occupy. It is
in vain now to inquire into the sufficiency of the principle, that
discovery gave the right of dominion over the country discov­
ered. When the populous and civilized nations beyond the
Cape of Good HQpe were visited, the right of discovery was
made the ground of an exclusive right to their trade, and con­
fined to that limit. When the eastern coast o( 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 d :_scoverer. It cannot be questioned that
the right of sovereig1ity, as well as soil, was notoriously ass­
erted and exercised by the European disc.ove.rers. From
tqat source we derive . our rights, :ind there is not an in­
stance of a cession of land from an Indian nation, in which the
right of sovereignty is mentioned as a part of the matter ceded.
It may be suggested that they were uniformly cessions of land
without inhabitants; and, therefore, words competent to make
a ces.sion of·sovereignty were unnecessary. This, however, is
not a full answer, since soil;.as well as people, is the object
of sovereign action, and may be ceded with or without the
Bovereignty, or may·be ceded with the express stipulation that
the inhabitants shall remove. In all the cessions to us from
the· civilized states of the old world, and of our transfers among
ourselves, although of the sam� property, under the same cir­
cumstances, and even when occupied by these very Indians,
the expres� cession of sovereignty is to be found.
In the very treaty of Hopewell, the language or evidence of
which is appealed to as the leading proof of the existence of this
supposed s�te, we find the commissioners of the United States
expressing themselves in these·terms. "The commissioners
ple�ipotentiary of the United States give peace to all the Chero-
· Jrees, and receive them into the favour and protection of the
 · 2
JANUARY TERM ISSI. 3
[The Cherokee Nation us, The State of Georgia.]
United States on the following conditions." This is cer­
tainly the 1angu�ge of sovereigns and conquerors, and not the·
address of equals to equals. And again, when designating
the country they are to he confined to, comprising the very
territory which is the subject of this bill, thry say, "Art. 4.
The boundary allotted to the Cherolcees for their ltunt­
ing grounds" sha1l be -:as therein described. Certainly this
is the language of concession on our part, not theirs; and when.
thP full bearing and effect of those words, '� for their hunting
grounds," is considered, it is difficult to think that they were
then regarded as a state, or even intended to be so regarded.
It is clear that it was intended to give them no other rights
over the territory than what were needed by a race of hun­
ters; and it is not easy to see how their advancement beyond
that state of society could ever have been promoted, or, per­
haps,permitted,consistentlywith the unquestioned rights of t he
states, or United States, over the territory within their limits.
The pre-e�ptive right, and exclusive right of conquest in
case of war, was never questioned to exist in the states, which
circumscribed the whole or any part of the Indian grounds or
territory. To have taken it from them by direct means would
h"ave been a palpahle violation of their rights. But every ad­
vance, from the hunter state to a niore fixed state of society,
must have a .tendency to impair that pre-emptive right, an.d
ultimately to destroy it altogether, both by increasing the In­
dian population, and by attaching them firmly to the soil.
The hunter state bore within itself the promise of vacating the
territory, because when game ceased, the hunter would go
elsewhere to seek it. But a more fixed state of society would
amount to a permanent destruction of the hope, and, of conse­
quence, of the beneficial cliaracter of the pre-emptive right.
But it is said, that we have extended to them the means and
inducement to become agricultural and civilized. It is true:
and the immediate object of that policy w_as so obvious.as pro­
bably to htve intercepted the view of ulterior consequences.
Independently of the general influence of humanity, these
people were restless, warlike, and signally cruel in their frrup­
tions during the revolution. The policy, therefore, of enti�
cing them to the arts bf peace, and to those improvements
which war. might lay desolate, was obvious; and it was wise
 .24 SUPREME COURT.
[The Cherokee Nation r,c. The State of Georgia.]
to prepare them for what wits probably then contemplated, to
wit, to incorporate them in time into our respective govern­
ments: a policy which their inveiE:rate habits and deep seated
enmity has :.}together baffled. But the project of ultimately
organizing them into states, within the limits of those states
which had ·not ceded or should not cede to the United States
the jurisdiction over the Indian territory within their bounds,
could not possibly have entered into the contemplation of our
government. Nothing but express authority from the states
could have justified such a policy, pursued with such a v�ew.
To pursue this subject a little more categorically.
If these Indians are to be called a state: then,
1 •. By whom are they acknowledged as such,
.2. When did they become so?
3. And what are the attributes· by which they are identi­
fied with other states.
As to the first question, it is clear, that as a state they are
known to nobody on earth, but ourselves, if to us:- how then
can they be said to be recognized as a member of the commu­
nity of nations? Would any nation on earth treat with 'them
as such? Suppose when they occupied the banks of the Miss­
issippi or the sea coast of Florida, part of which in fact the
Seminoles now occupy, they had declared war and issued let­
ters of marque and reprisal against us or Great Britain, would
their commissions be respected? If known as a state, it is by
us and us alone; and what are the proofs? The treaty of Hope­
well does not even give them a 'name other than that of the
Indians; not �ven ·nation or state: but regards them as what
they were, � band of hunters, occupying as hunting grounds,.
just what territory we chose to allot them. And almost every
attribute of sovereignty is renounced by them in that very
treaty. They acknowledge themselves· to be under the sole
and exclusive protection of the United States. They receive
the territory allotted to them as a boon, from a master or con­
q�eror; the right of punishing intruders into that territory is
conceded, not asserted as a rlght; and the sole and· exclusive
right of regulating their trade and managing all their affairs
in such ·manner as the government of the United States shall
think proper; amounting in terms to a relinquishment of all
 JANUARY TERM 1831. 25
[The Cherokee Nation tis TIP. State of Georgia,)
power, legislative, executive and judi�ial to the United Stales,
is yielded in the ninth article.
It is true, that the twelfth article gives power to the In-
. dians to send a. deputy to congress; but suc_h deputy, though
dignified by the name, was nothing and could be nothing but
an agent,such as any other company might be repres��ted by.
It cannot be supposed that he was to be recognized as a minis­
ter, or to sit in the congress as a delegate. There is nothing
express and nothing implied, that. would clothe him with the
attributes of either of these characters. As to a seat among
the d�legate11, it could not be granted to him.
There is one -consequence that would neces<:1arily flow from
the recognition of this people as a state, which of itself must
operate greatly against its admission.
Where is the rule to stop? Must every petty kraal of In­
dians, designaHng themseh•es a tribe or nation,a.nd ha.ving·a few
hundred acres of land to hunt on exclusively, be recognized as
a state? We should indeed force into the family of'nations, a
very numerouii and very heterogeneous prog�ny: The Cataw­
bas, having in.deed a few more acres than ·the republic of San
Marino, but oonsisting only of eighty or a.n hundred polls,
would then be admitted to the same.. dignity. 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. We ha\te many ancient treaties with ihem; and no
nation has bcea more distinctly recognized, as far as such. re­
cognition can operate to communicate the character gf a state�
But secondly, at what time· did thifl people acquine the
character of a state?
Certainly not by the "treaty of Ht>pewell; for every provision
of that treaty operates to strip it of its sovereign attributes;
and nothing subsequent adde any thing to that treaty, except
using the word nation- instead or" Indians. Aud as to that
article in the treaty of Holston, and repeated in the treaty.of
Tellico, which guaranties to them their territory? since both
those treaties refer to and confirm the treaty of Hopewell;
on what principle ean it be contended that tire guarantee can
go farther than to secur� to them that right ov.cr the territory,
which is conceded by the Hopewell treaty; W!}ich "interest is
only that of hunting grounds. The general policy of the-
VoL, V.-D'
 26 SUPREME COURT.
{The Cherokee Nation"'· The .State of Georgia,]
United States, which always looked to these Indian lands as a
certain future acquisition, not less than the express words of
the.treaty of Hopewell, must so decide the question.
If they �vere n(!t regarded as one of the family of nations
at the time of that treaty, even though at that time first sub­
dued and stripped of the attributes of a state, it is clear that,
to be regarded now as a state, they must nave resumecl their
rank among nations at some subsequent period. But at what
subsequent period? Certainly by no decisive act until they
organized themselves recently into a government; and I have
before remarked that, until expressly recognizecl bylhe execu­
tive under that fol'� of goverument, we cannot recognize any
change in their form of existence. Others liave a right to be
COn!jU}ted on the admission of ·new states into the national
.f�ily. When this country was first appropriated or con­
querea by the crown of Great Britain, they certainly were
not known ?,S members of the community of nations; and if
they had been, Great BritaJn from that time blotted them
from among the race of sovereigns. From that time· Great
Britain considered them as her subjects whenever she chose
to claim their allegiance·; and theii:_ c,guntry as hers, both in soil
and sovereignty. All .the forbearance exercised towarQ.s them
was considered as voluntary; and as-their trade was more
valuable to hsr than their territory,. for that reason, and not-from
any supposed want of right to e:Jwtend her laws over them, clid
she abstain from doing so.
And, thirdly, by what attributes is the Cherokee nation
identified with other states?"
The right of sovereignty was expre:isly assumed by Great
Britain over their country at the first taking poSBession of it;
and has never since been recognized as in them, otherwise
. than as dependent tlpon the will of· a superior.
The right of legislation is in terms conceded to congress by
the treaty of" Hopewell, whenever th�y choose to exercise it.
And the right of soil ·is held by the feeble tenure of hunting
grounds, and acknowledged ori all hands subject to a restric­
tion to sell to no one but ilie United States, and for no. use but
tliat 'Of Ge�rgia.
They have in. Europe sovereign and demi-sovereign states
and states of doubtful· sovereignty. But this state, if it be
 JANUARY TERM 18Sl. 27
[The Cherokee Nation 11a. The State of Georgia.]
a state, is still a grade below them all: for not to be alile to
alienate without permission of the remainder-man or lord,
places them in a state of feudal dependence.
However, I will enlarge no m'lre upon this point;.because
I believe, in one view and in one only, if at all, they are or
may be deemed a state, thongh not a sovereign state, at least
while they occupy a country w.ithin our limits. Their condi­
tion is something like that of the Israelites, when inhabiting
the deserts. ,'l'hough without land that they can call theirs in
the sense of property, their right of personal .self government
has never been taken from them; and su�h a form of govern­
ment may exist though the land occupied be in fact I.hat of
another. The right to expel them may exist in that other,
but the alternative of departing and retaining the right" of self
government may exist in them. And such they certainly do
possess; .it has never been questioned, nor any attempt made
at subjugating them as a people, or restraining their personal
liberty except as to their land and trade.
But in no sense can they be·deemed a foreign state, under
the judiciary article.
It does seem unnecessary o� this point to do more than put
the question, whetner the makers of the constitution could
have intended to designate· them,.when· .using the epithets
"foreign1 '· and " state.'' State, and foreign state, are used in
contradistinction to each other. We had then just emerged
ourselves from a situation having much stronger claims than
the Indiansfor admission into the family of nations; and yet we
were not admitted until we had declared ourselves no longer
provinces but states, and shown some earnestness and capa..
city in asserting our claim to be enfranchised. Can it then be
supposed, th!lt when using those terms we meant to include any
others than those who were admitted into the community of
nations, of whom most notoriously the Indians were no ·part?
The argument is that they were states; and if not states of
the union, must be foreign states. But I think it very clear
that the constitution neither speaks of them .as states or foreign
states, but as just what they were, Indian tribes; .an anomaly
unknown to the books that treat of states1 and which the law
of nations would regard as nothing more than wandering
hordes, held together only by ties of blood and habit, and
 28 SUPREME COURT.
[The Cherokee Nation"'· The-State of.Georgia.]
having neither iaws or government, beyond what is required
in a savage state, The· distinction is· clearly made in that
sectioµ which vests in congress power to regulate commerce
between the United States with foreign nations and the Indian
tribes.
The language must be applied in one of three senses; either
in that of the Jaw, of nations, or of the vernacular use, or that
of" the constitution. In the first, although it means any state
not subject to our laws, yet it must be a state and not a hunter
horde: in the vernacula'r, it would not be appli�d to· a peopie
within our limits and at our very ,doors: aad in the constitu-
. tion th.e two epithets are used in direct contradistinction. The
latter words were unnecessary,. if the first included the India!l
tribes. There is no ambiguity, though taken literally; and if
there were, facts-and circumstances altogether remov,e-it.
But had I been sitting alone in this cause, I should have
waived the consideration of personal description altogether;
and put my rejection 6f this motion upon the nature of the
claim set ·up, exclusively.
I cannot entertain a doubt that it is one of a political char­
acter altogether, and wholly unfit for �e cognizance of a jgdi­
cial tribunal. There is no possible view of the subject, that
I can perceive, in which a �ourt of justice can tak� jurisdiction
of the questions made in the bill. The substance of its allega­
tions may be thus set out.
Th.at the complainants have beeh from time immemorial
lords of the -soii they occupy. That the limits by which they
hold it have been solemnly designated_and secured to them by
treaty and"by laws of the United States.. That within those
limits they have rightfully exerci!!ed unlimi:ted ji1l'isdictio'n,
passing their own laws ai:td administe ing justice iia thbir own
:way. That in violation · of their· just rights s·o secured to
them, the state of Geo�gia has passed laws authorizing and
requiring the.executive and judicial powers of the state to.
enter their territory and put down their public fubctionaries.
That in pursuance·of those lawr the fuacti'onaries of Georgia
have entered their territory, with an armed force, and put down
. a,U p�wers legislative, executive and judicial, exercised under
the government of thi: Inaians
·What does this series of allegations e-xhibit bnt a !State
 JANUARY TERM 1831. 29
[The Cherokee Nation 1'!. The State of Georgia..]
of wnr, and the fact of invasion? They allege themselves· to
be a sovereign independent state, anij set out that another
sovereign state has, by its laws, its functionaries, and ·its
nrm�d force, mvaded their state and put down their au­
thority. This is war in fact; though not being declared
with the usual solemnities; it may perhaps be called war
in disguise. And the contest is distinctly a contest for.
empire. It is not a case of meum anti tuum in the judicial
but in the political sense. Not an appeal to laws but �o force.
A case in which a sovereign undertakes to assert his right up­
on his sovereign responsibility;· to .right himself, and not to
appeal to · any arbiter but ·the sword,. for, the justice of his
cause. If the 11tate of l\faine were to extend its laws over the
6

province of New Brunswick, and send its magistrates to carry

-them into effect, it would be.a parallel case. In the Nabob of
Arcot's case (4 Bro. Cha. Ca. and 1 ·and 2 :Vesey, Jun.), a c�
of a _political character· not one half so strongly marked as
this; the . courts of Great Britain refused to take jurisdiction,
because it'had its origin in treaties entered into beh�een sove­
reign states: a case in which the �ppeal is to the �word and to'
Almighty justice, and not to-courts of law or equity. In the
exercise of sovereign right, the sovereign is ·sole arbit.er of·his
own justice. The penalty of wrong is war ·aQ.d subjugation.
_ But there is still another ground in this case, which alone
would have prevented me from assuming jurisdiction.; and that­
is the utter impossibility of doing justice, at least even handed
justice, between the parties. As to restoring the complainant
to the exercise ofjurisdiction, it will be seen at once that that
is nQ �ase fox· the action of a court; and as to-quieting him in
possession of the soil, what is the case on which the complain­
ant would have this court to act? Either the Cherokee nation
are a foreign state, or they are.not. If they are not, then they ·
cannot come hex:e; and if they are, then how can we extend
our jurisdiction into their country?"
We are told. that we can act upon the public functionaries
.in the state of Georgia, without the limits of the nation.
But ;;uppos� that G.eorgia should file a cross-bill, as she cer-·
tainly may, if we can entertafo jurisdiction in thi� case; and
should" in her bill claim to be put in possession of the w,hole
Indian country; and we should decide iri her favour;how is
 80 SUPREME COURT.
�The Cherokee Nirtion ti6. The State of Georgia.]
that decree to ..be carried into. effect? Say. as .to soil; as to
jurisdiction it is not even to be considered. From the com­
plainant's own sh.owing we coula not do justice between
the parties. Nor must I be -considered as admit.ing that this
eourt could even upon the other. alternative exercise a juris­
diction over the person, respecting lands undet the juris­
diction of a foreign nation. I know (!f no such instance. In
Penn vs. Lord. Baltimore, the persons were in England anq
the land within the king's dominions though in America.
There is still another view in which this cause of action may
be considered in regard to its political nature. The United
States finding themselves involved in conflicting treaties, or
at least in two· treaties respecting the same property, ·under
which two parties assert conflicting claims; one of the parties,
putting itself upon its sover.eign right, passes laws"which in
effect declare the laws and treaties under which the other
party claiips, null and void. It procee.ds to C\lrry into effect
those laws by means of physical force; and the other party
appeals to the executive department for protection. Being
disappointed there, the party appeals fo this court; indirectly
to compel the executive to pursu� a course of policy:, whicli
his sense of duty or ideas of the law may indicate should not
be pursued. That is, to declare war against a state, or to use
the public force to repel the force and resist the laws of a
state, when his judgment tells him the evils to grow out of
such a course may be incalculable,
What thes� people may have a right to -claim of the execu­
tive power is one tning:. whether we are to be the instruments
to compel another -branch of the government to make good
the stipulations of treaties, is a very different question. CoQrts
of justice are nroperly excluded from all considerations of
policy, and therefore are. very unfit instruments to control the
action of that brqnch of government; which .may often be
compelled by the highest considerations or public ·policy to
withhold even the exercise of a positive duty.
There is then a great deal of goo·a sep!!e in the rule laid
down in the Nabob of Arcot's case, to wit, that as between
sovereigns, brerrches of treaty were not breaches of contract:
cognizable in a court of justice; independent -0f the genera]
principle that for their political acts s�tes were not amenable
to tribunals of justice.
 JANUARY TERM 18Sl. Sl
[Tha Cherokee Nat!cio "'· The State of Georgia.]
There is yet. another view of this subject, which forbids
oor taking jurisdiction•. There is a law of tlio United St.ates,
which·purports to make every trespass set out in the bill to be
an offence cognizable in the cour� of the United States. I
mean the act of 180.2� which makes it penal to violate the In-
dian territory.
The infractio�·of this law is in effect the burden o( complaint.
What then in (act is this bill, but ·a bill to obtain an injunc­
tion against the commission of crimes? If their territory bas
been trespassed upon against tpe provisions of that. act, no
law of Georgia could repeal that !!Ct or justify the violation
of its provisions. And the remedy lies in another court and
form of action, or anoth�r branch of jurisprudence�
I cannot take leave of th� case without one remark upon
the leading argument, on which the exercise of jllrisdiction
l1ere over cases occurring iP the Indian country has been
claimed for the complainant · Which was, that· the United
States in fact-exercised jurisdiction over it by m�ans of this
and other acts, to punish offences committed there.
But this argument ca_nnot bear the test of principle. For
the jurisdiction of a country IJ?.3Y be exercised over her citi­
zens wherever they are, in right of their allegiance; as .it has
been in the instance of punishing offences ·c.ommitted against
the Indians. And, also, both under the constitution and the
tr�aty of Hopewell, the power of congress extends to regu­
lating their trade, necessarily' within their limits. But this
cannot sanction the exercise-of jurisdiction beyond the policy
of the acts themselves; which are altogether penal in their
provisions.
I vote for rejecting the motion.

Mr Justice BALDWIN,-As jurisdiction is the first question

which must arise in every cause, I have confin�d my exami­
nation of this, entirely to that point, and that branch of it;
which relates to the capacity of the plaintiffs to ask the inter­
position of this court. I concur in the opinion of the court
in dismissing the bill, but not for the reasons assigned.
In my opinisn there ia no plaintiff in this· suit; and this
opinion precludes any examination into the merits of the bill,
or the weight oi any minor objections. My judgment stops
32 SUPREME COURT.
[The Cherokee Nation tis. The State of Georgia.]
me at the threshold, and forbids me to examine into the acts
complained of.
As the reasons for the jud gment of the court seem to me
more important than the jurlgment itself, in its effects on the
peace of the country and the condition of the complain­
ants, and as I stand alone on one question of vital concern to
both; I mtlst give my reasons in full. The opinion of this
court is of high authority in itself; ancl the judge who delivers
it has a support as strong in moral influence over public opin­
ion, as any human tribunal can ·impart. The judge, who stands
alone in decided dissent on matters of Hie infinite magnitude
which this case presents, must sink under the continued and
unequal struggle; unless he can fix himself by a firm hold on
the constitution and laws of the country. He must be presumed
to be in the wrong, until he .proves himself to be in the right.
Not shrinking even from this fearful issue, I proceed to con­
sider the only question which I shall ever. examine in rela­
tion to .the rights of Indians to sue iq the federal courts, until
�onvinced of my error in my present convictions.
My view of the plaintiffs being a sc,vereign independent
nation or foreign state, within the meaning of the constitu­
tion, applies to all the tribes with whom the United States
have held treaties: for if one is a foreign nation or state, all
others in like condition must be so in their aggregate capa­
city;. and each of their subjects or citizens, aliens, capable
of suing in the circuit courts. This case then ·is the case of
the countless tribes, who occupy·tracts of our vast domain;
who, in their collective and individual characters, as states or
aliens, will rush tu the federal cot1rts in endless controversies,
growing out of the laws of the states or of congress.
In the spirit of the maxim obsta prindpiis, I shall first pro�
ceed to the consideration of the proceedings of the old con­
gress, from the commencement of the revolution up to the
adoption of the constitution; so as to ascertain whether the
Indians were con�idered and treated with as tribes of savages,
or \ndependent nations, foreign states on an equality with
any other foreign state or nation; and whether Indian affairs
wer� viewed as those of foreign nations, and ir. connection
with this view, refer to the acts of the federal go vernment on
the same subject.
 JANUARY TERM 1831. 33
"[The Cherokee Nation "'· The State of GeQrgia.)
In 1781 (1 Laws U. S. 58� &c.) a department ior for­
eign affairs was established, to which was entrusted all cor­
respondenc� and communication. with the ministers or oth8'
officers of foreign powers, to be carried on through that office
also with the governors and presidents of the several states,
and to receive the applications of all foreigners, letters
of sovereign powers, plans of treaties> conventions, &c. and
other acts of congress relative to the department of foreign
affairs; and all communications as well to as from the Unit.ed
States in congress assembled were to be made through the
secretary, and all papers on the subject of foreign affairs to be
addressed to him. The same department was established un­
der the present constitution in 1789, and with the same ex­
clusive control over all the foreign concerns of this govern­
ment with foreign states or princes. 2 Laws U. S. 6,
7. In July 1775, congress established a department · cJf In­
dian affairs, to be conducted under the superintendence of
comm1ss10ners. 1 Laws U. S. 597. By the ordinance of
August 1786, for the regulation of Indian affairs, they were
pla,�cd under the control of the war department, 1 Laws
U. S 614,- continued there by the act of August 1789 (2
Laws U.S. 32, 33), under whose direction they have ever
since remained. It is clear then, that neither the old or new
government did ever consider Indian affairs, the regulatiort of
our intercourse or treaties ,yith them, as forming any part of
our foreign affairs or concerns with foreign nations, states, or
princes.
I will next inquire how the Indians were consider�d;
whether as independent nations or tribes, with whom our in­
tercourse must be regulated by the law of circumstances. In
this examination it will be found that different words have
been applied to them in treaties and resolutions of congress;
nations, tribes, hordes, savages, chiefs, sachems and warri()l'S
of the Cherokees for instance, or the Cherokee nation. 1
shall not stop to inquire into the effect which a name o:r title
can give to a resolve of congress, a treaty or conventior, with
the Indians, but into the substance of the thing done, and the
subject matter acted on: believing it requires no reasoning to
prove that the omission of. the words p·rince, slate, sovereicn­
ty or nation, cannot divest a contracting party of these-na-
VoL. V.-E
 SUPREME COURT.
[The Cheroke13 Nation vs. The State of Georgia.]
tional attributes, which are inherent in sovereign power pre
and self existing, or · confer them by their use, where all the
substantial requisites of sovereignty are wanting;
The proceedings of the oltl congress will be found in 1 1
Laws U. S. 597, commencing 1st. June 1775, and ending
1st September 1788,- of· which· some extracts will be
given. 30th June 17'75, " Resolved, that che committee for
Indian ·affairs do pr.eP.are proper 'tal_ks to the several trib"es of
Indians. A� •the Indians depend on the colonists for arms,
ammunition· nnd clothing, which· are become necessary for­
tlleir subsistence." · ':Tha.t the commissioners have pow­
e:r to treat with ..the Indians;" " to 'take to their assist­
ance gentleh1e11 of influence among ti1e Indians._'' ," To
preserve the confidence and friendship of 'the Indians, aecl'
prevent their suffering for want of the necessaries of life,
£40,000 sterling ·or Indian goods· be imported." • "No
person shall·be permitted to trade with the Indians without
a licence;" "traders shall sell their goods at reasonable
prices; allow them to the Indians for their skins;. and take no
advantage of their distress. and intemperanee;" '� the trade·
to be only at posts designated by the <:ommissioners. n Spe­
cimens of the kind of intercourse between the ·congress and
deputations of fodians may be seen in pages 602 and 603.
They need no incorporation into a judicial opinion.
In 1782, a committee of congress report, that all the lands
belonging to the six nations of Indians have been in due
form put under the crown as appendant to the government
of New York, so far as respects jurisdiction only; that
that colony ha_s borne the burthen of protecting and sup­
porting the six nations of Indians and their tributaries for one
hundred years, as the depenp.ents and allies of that govern­
ment; that the crown of England has always considered' and
treated the country of ,the six. na�ions as one appendant to the
government of New York;_ that they have been so recogniz­
ed and admitted by their public acts by Massachusetts; Con­
necticut, Pennsylvania, Maryland and Virginia: that by ac­
.cepth1g this ccssiou, the jurisdiction of the whole west­
ern territory, belonging to the six nations and their tributa­
ries, will be vested in the United States, greatly to the ad­
vantage _of the union [p. 606]. The cession alluded to is the
 JANUARY TERM 1831. 35

[The Cherokee Nation 11s. The State of Georgia,)

on.e fi:om New York,March 1st, 1781, of the soil and juris­
diction of all the- land in their charter· west of the present
boundary of Pennsylvania (l Laws U. S. 471), which was
executed in congress and accepted.
This makes it necessary to break iri on the historical trace
of our Indian affairs, and follow up this subject to the adop­
tion of the constitution. The cession from Virgi�ia in 1784
was of soil and j).lrisdiction. So from Massachusetts in 1785,
from Connecticut in 1800, from Squth Carolina in 1787,
from Georgia in 1802. North Carolina made a partial ces­
sion of land, but a fu]l on� of her sovereignty and jurisdic­
tion of all without her present limits in 1789. 2 Laws United
States �5.
Some states niade reservations of lands to a small amount,
but, by the terms of the cession, new states were to be formed
within the ceded boundaries, to be admitted foto the union
on an equal footing with the original stares; of course, not
shorn of their powers of sovereignty and jurisdiction within
the boundaries assigned by congress to the new states. In
this spirit congress passed the celebrated ordinance of .Juiy
1787, by which they assumed the government of the north
western territory, paying no regard to lnd_ian 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." l Laws United States, 477. By the fourth article
the -said territory, and the states which may be form�d
therein, shall for ever remain a part of this confederacy -0f Hie
Unit� States; subject to the articles of confederation, altera-'
tions constitutionally made, the acts and ordinances of con­
gress.
This shows the clear meaning and understanding of all the
ceding states, and of congress, in accepting the cession of their
western lands up to 1.he time of the adoption of the constitu­
tion. The application of these acts to the provisjons of the
constitution will be consiuerecl hereafter. - A.. .few more refer­
ences to the proceed_ings of the old congress i� relation to the
Indian nations will close this' view of the ease.
36 SUPREME COURT.
['Ihe Cherokee Nation "'· The State of Georgia.]
In 1782, a committee, to whom was referred a - Jetter from
the secretary at war, reported " that they �ave had a confer­
ence with the two deputies from the Catawba nation of In­
dians; that their mission respects certain tracts of land re­
served for their use in the state of South Carolina,.which they
wish may be so secured to their tribe, as not to· be intruded
into hy force, nor alienated even with their own consent:­
whereupoQ; resolved, that it be recommended to the legisla­
ture of South.Carolina to take such measures for the satisfac­
tiQn and security of the said tribe, as the said legislature shall
in their wisdom think fit." I Laws United States, 667.
After this, the Catawbas cannot well be considered an inde­
p�_ndent nation or foreign state. In September 1783, shortly
after the preliminary treaty of peace, congress, exercising the
powers of acknowledged independence and sovereignty, is­
sued a proclamation beginning-in these words: " whereas, by
the ninth of the articles of confedera�ion, it is, among other
things declared, that the United States, in congress assembled,
have the sole and. exclusive rig4t and power of regulating the
trade, and managing all affairs with the Indians not members
o:: any of tl\e states, provided that the "legislative right of every
state, with-in its own limits, be not infringed Ol' violated,"
.prohibiting settlements on landii inhabited or claimed by In­
dians, without' the limits or jurisdiction of any particular state,
and from purchasing or receiving gifts of land, without the
-express authority and directions of the United States in
congress assembled. Conventions were to be held with
the Indians in the northern and middle departments for the
purpose of receiving them into the favour and protection of
the United States, and of establishing boundary lines of pro­
perty, for separating and dividing the settlements of the
citizens from the Indian villages and hunting grounds, &c.
" Resolved that !he preceding measur.es of congress, rela­
tive to Indian affairs, shall not be construed to affect the
te�ritorial claims of any of the smtes, or their legislative
rights within their respective limits. Resolved, that it will
be wise and necessary to erect a district of the western
territory into a distinct government, and that a committee
be appointed to prepare a plan ior a temporary government
until the inhabitants shall forpi a " permanent constitution
 JANUARY TERM 1ss1. 37

[The Cherokee Nation"'· The State of Georgia.]

for ·themselves, anq as citizens of a free, sovereign, and
independent s�te, be admitted to a representation· in the
union." In 1786, a general ordinance was p3cssed for the
regulation of Indian affairs under the a�thor�ty of the ninth
article of the confederation, which throws much light on· our
relations with them. P. 614. It closes with a direction, thaL
in all cases where transactions with any nation or tribe of In­
dians shall become necessary for the purposes of the ordinance.
which cannot be done withou.t interfering with the legislative
rights of a state, the superintendent "\"ithin whose district the
same shall happen, shall act.in conjunction with the authority
of suoh state.
· After accepting the cessions of the soil and jurisdiction of
the western territory, and resolving to form a temporary
government, and create new, free, sovereign, and independent.
states, congress resolved, in March 1785, to hold a u:eaty With.
the western Indians. They gave instructions to the commiss­
ioners in strict conformity with their preceding resolutions,
both 'Of which were wholly incompatible with 1he national or
sovereign character of the Indians with whom they were about
to treat. 'fhey will be formed in pages 611, &c. and need
not be particularized.
I no\v proceed to the instructions which_preceded the treaty
of Hopewell with the complainants, the treaty, and the conse­
quent proceedings of congress. On the 15th March 1785, com­
missioners were appointed to. treat with the Cherokees ana
other Indians, southward of them, within the limits of the
United States, or who have been at war with them, for the
purpose of making peace with them, and of receiving them
into the favour and protection of the United States, &c.
They were instructed to demand that all pri ners, negroes
and other property taken -during the wAr be given up; to in­
form the Indians of the great occurrences. of the last war; c,f
the extent of country relinquished by the late treaty of peace
with Great Britain; to give notice to the governors of Vir­
ginia, Norfh and South&Carolina and Georgia. that they may
attend if they think proptµ": and were authorized to expend
four thousand dollars :in making presents to the Indians; a
matter well uriderstood in m�king Indian treaties, but un­
known· at least in our treaties with foreignna�ions, princes
. 38 SUPREME COURT.
[The Cherokee Nation 7JS. TM State of Georgia.]

or states, unless on the Barbary coast. A treaty was• ac­

cordingly made in November following, between the com­
missioners plenipotentiaries of the United States of the une
part, and the head men and warriors of aII the Cherokees of
the other. The word nation is not used in the preamble or
a�y part of the treaty, so that we are left to infer the capacity
in which the Cherokees contracted, whether as an indepen­
dent nation or foreign state or !\ tribe of Indians, from the
terms of the treaty, its stipulations and conditions. "The
Indians for themselves and their respective tribes and towns
do acknowledge all the Cherokees to.·be under the protection
of the United States." Article 3d. I Laws U. S. 322,
"The. boundary allotted to the Cher-0kees for their hunting
grounds between the said Indians and .the citizens of the
United States, within the limits of the United States, is and
shall be the following," viz. (as defined in Article 4th). "For
t}:ie benefit and comfort of the Indians, and for the prevention of
injuries and aggressions on the part of the citizens or Indians,
the United States in congress assembled shall have the sole
and .excl�sive right . of regulating the, tra,de with the In­
diaiis, and managing all their affairs in such manner as they
shallthink proper. Article 9. "That the Indian!! mily have
full confiden-ce ;in the justice of1:he United States respecting
their.interests, they shall have the right to send a deputy of
their choice whenever-they think fit to congress." Article
12th.
This treaty is in the beginning called " Article:" the
word "treaty" is only to be found in the concluding line,
where it is called " this definitive treaty." But article or
treaty, its nature does not depend upon the name given it.
It is not negotrated between ministers on both sides repre­
·senting their nations; 'the stipulations are wholly inconsistent
with sovereignty; the Indians acknowledge their dependent
character;- ·hold ·the lands they . occupy as an allotment of
hunting grounds; give to congress the exclusive right of regu­
lating their trade and malJ.aging aII their affairs as they may
think proper-. So it was understood hy congress as declared
by them in their proclamation of 1st September 1788 (I
Laws U S. 619), and so understood at the adoption of the
constitlltion.
 JA.J.-i,qUARY TERM 1831. 39
[The Cbe:okee Nation tia:The Stale of Georgia.]
'l'he •meaning of the- words " deputy· to congress" in
the twelfth article may be as a person liaviog a right to sit
in that body: as at that time it was composed of delegates or
deputies -from the states, not as at 'present, representatives 0£
the people of the states; or it may be as an agent or ministei:_.
But it the former was the meaning of the parties, it is conclu­
sive to show' that he was not and .could not be the ·deputy of
a foreign state whoJly ·separated from the union. If he sat fo
congress a:;; a dep�ty·fro.m any state, it must be one having a
political connection with, and \Vithin the jurisdiction of the
confederacy; if as a diplomatic agent, he could not represent an
indep·endent or sovereign nation, for all such have an unques­
tioned right to send such agents when and where they please.
The securing the right-by an express stipulation of the treaty;
the declared objects in conferring the right especially when
connectea with the ninth article; show beyond a doubt it was
not to represent a foreign state or nation or one to whom th�
least vestige of independence or sovereignty as to the United
States appertained. The.re can, be no dependence so a�ti­
national, or sa utt�rly subversive of natio:µal existence as
fransferring to a foreign government the regulation of its.
trade, and the management of all their affairs at their pleasure.
The nation or state, tribe or village, head men or warriors
of the Cherokees, call them by what name we please, call the
articles they have signed a definitive treaty or an indenture of
servitude; they are not by its fo,rce or virtue· a foreign state
capable of calling into legitimate action the judicial power of
this union, by the exercise of the original jurisdiction of this
court against a sovereign state, a component part of this nation.
Unless the constitution has imparted to the Cherokees a na­
tional ch\lractcr nev,;ir recognized under the confederation;
and which if they ever enjoyed was surrendered by the treaty
of Hopewell; they ·cannot be deemed in this court plaintiffs in
such a case as this.
In considering the bearing of the constitution on their
rights, it must be borne in mind, that a majority of the states
represented in the convention had cec)ed to the ITnited.State:ir
the soil and jurisdiction of their western lands, or. claimed it
to be remainin� in themselves; that congress asserted as to the
ceded, and the states as to the unceded territory, their right"
to the soil absolutely and the dominion in full sovereignty,
 40 SUPREME-COURT.
[The Cherokee NatiP'D 1'11. The State of Georgia.]
within their respective limits, subject only to Indian occu­
•pancy, not as foreign stat.es or nations, but as dependent on
and appenda-nt to the state governments: that before the con­
vention acted, congress had erected a government in the north
western territory containing numerous and powerful nations
or tribes of Indians, whose jurisdiction was continued and
whose sovereignty was overturned, if it ever exi_sted, except
by permission of the states or congress, by ordaining that the
territorial laws should extend over tbe whole district; and
directing divisions for the execution of civil and. criminal
process in every part; .that 'the Cherokees were then depend­
ants, having given'up aU·their affairs to the regulation and
management of congress, and that all the regulations of congress,
over Indian affairs were then in force over an immense territory,
under a solemn pledge to the inhabitants;that whenever their
population and clrcumstances would admit they should form con­
stitutions and become free, sovereign and independent states
on equal footing with the old component members of the con­
federation; that by the existing regulations and treaties, the
Indian tenure to their lands was their allotment as hunting
grounds without the pow-er of- alie'Qation, that the right of
occupan�y was not individual, that the Indians were forbidden
all trade or intercourse with any person not licellS'ed or at a
post not designated by regulation, that Indian affairs formed
no part of the foreign concerns of the _government, and that
though they were permitted to regulate their internal affairs
in their own way, it was not by any inherent right acknow­
ledged by congress or reserved by treaty, but because congress
did not think proper to exercise the sole and exclusive
right, declared and'assert{ld in all their regulations from 1775
to 1788, in the articles of confederation, in the ordinance of
l 787 and the proclamation · of 1788; which the plaintiffs so­
lemnly recognized and expressly granted by the treaty of
Hopewell in 1785, as conferred on congress to be exercised as
they should think proper.
To correctly nnderstand the constitution, theu, we must
read it with reference to this yvell known existing state of our
relations with the Indians; the United States asserting the right
of soil, sovereignty; and jurisdiction, in full dominion; the
Indians oecupant, of allotted hunting grounds.
We can thus expouna the constitution with.out a reference
 JANUARY TERM 1831. 41
[The Cheroke� Nation"'· The State of Georgia.]
to the definitions of a _state or nation by any foreign writer,
hypothetical reasoning, or the dissertations of the Federalist.
This would be to substitute individual authority in place of the
declared will of the sovereign power of the union, in a writ­
ten fundamental law. Whether it is the emanation from the
people or the states, is a moot question, having no bearing on
the supremacy of that supreme law whfoh from a proper
source has rightfully been imposed on us by sovereign' power.
Where its terms are plain, I should, as a dissenting judge,
deem it judicial sacrilege to put my hands on any of its pro­
visions, and arrange or construe them according to any fancied
use, object, purpose, or motive, whicfi, . by an ingenious
train of reasoning, I mjght bring my mind to believe was
the re.ason for its adoption by the sovereign power, from
whose hands it comes to me as the rule and guide to my faith,
my reason, and judicial oath. In taking out, putting in, or
varying the plain meaning of a word or expression, to meet
the results of my poor judgment, as to the meaning and inten­
tion of the great charter, which alone imparts to me my power
to act as a judge of its supreme injunctions, I should feel my­
self .acting upon it by judicial amendments, and not as one of
its executors. I will not add unto these things; I will not
take away from the words of this book of prophecy; I will
not impair the force or obligation of its enactments, plain and
unqualified in its terms, by resorting to the authority of names;
the decisions of foreign courts_; or a reference to books or
writers-. The plain ordinances are a safe -guide to my judg­
ment. When they admit of doubt, I will connect the words
with the practice, usages, and settled principles of this gover11:­
ment, as administered .by its fathers before the adoption of the
constitution: and refer to the received opinion and fixed un­
derstanding of the high parties who adopted it; the usage and
practice of the new government acting under its authority;
and the solemn decisions of this court, acting under its high
powers and responsibility: nothing fearing that-in so doing, I
can discover some sound and safe maxims of American policy
and jurisprudence, which will always afford me light enough
to decide on the constitutional powe:-s of the federal and state
governments, and all tribunals acting under their authority.
They will at least enable me to judge of the true meaning and
VoL.V.-F
42 SUPREME COURT.
[The Cherokee Nation ii,. The State of Georgia.]
spirit of plain words, put into the forms of constitutional pro·
visions, which this court in the great case of Sturges and
Crowninshielcl say, "is to be collecteu,' chiefly from its words.
It would be dangerous in the extreme to infer from extri�sic
circumstances that a case for which the words of an instru­
ment expressly provide, shall be exempted from its operation.
Where words conflict with each other, where the different
clauses of an instrument _bear u-pon each other, and would
be inc<'nsistent unless the natural and common import of
words be varied, construction becomes necessary, and a de­
parture from the obvious meaning of words is justifiabl�."
But the absurdity and injustice of applying the provision to
the case must be so monstrous, that all mankind would without
hesitatibn unite in rejecting the application. 4 Wheat. 202, s.
In another great case, Cohens vs. Virginia, this court say,
"the jurisdiction of this court then, being extended by the
letter of the constitution to· all cases arising under it or under
the laws of the United State�, it follows that those, who would
withdraw any· case of this description from that jurisdiction,
must sustain the exemption they claim on the spirit ana' true
meaning of the constitution, which spirit and true meaning
must be so apparent as to overrule the words which its framers
have employed�'' 6 Wheat. 379, 80.
The principle o"f these cases is my guide in this. Sitting
here, I shall always bow to such authority; and require no
admonition to be influenced by no other, in a case where I am
called on to take a part in the exercise of the judicial power
over a sovereign state.
Guided · by these principles, I come to consider the third
claus!;' of the second section of the first article of the consti­
tution; which provi�es for the apportionment of representa­
tives, and direct taxes ":qnong the several states which' may
be included within this union, according fo their respective
numbers, excluding Indians not taa:td." This clause em­
braces not only the old but the new states to be formed out of
the territory of the United States, pursuant·to the resc.ilutitlns
and ordinances of the old congress, and the conditions of the
�ession from the states, or which l!ligh_t arise by the diyision
of the. old. If the clause excluding Indians not.taxed had not
peen inserted, or should be stricken out, the whole free IndiatJ.
 JANUARY TERM 1831. 43
[The Cherokee Nation"'· The State of Georgia.]
population of all the sta1es would be included in the federal
numbers, coextensively with the boundaries of all the states,
included in this union. 'fhe insertion of this clause conveys
a clear definite declaration U t there were no independe.r.t.sove­
reign nations or states, foreign or domestic, within their boun­
daries, which should exclude them from the federal enumera­
tion, or any bodies or communities within the sta,tes, excluded
from the action of the federal constitution unless by the use of
express words of exclusion.
The delegates who represented the states in the convention
well knew the existing relations between the United States
and the Indians, and put the constitution in a shape for adop­
tion calculated to meet them; and the words used in this
clause exclude the existence of the plaintiffs as �sovereign or
foreign state or nation, within the meaning of this section; too
plainly to require illustration or argument.
The third clause of the eighth article shows most d1stinctly
the .sense of the convention in authorising congress to regulate
commerce with the Indian tribes. The character of the In­
dian communities had been settled by many years of. uniform
usage under the old government: characterized oy the name
of nations, towns, villages, tribes, head men and warriors, as
the writers of resolutions or treaties might fancy; governed
by no settled rule, and applying the word nation to the Cataw�
bas as well as the Cherokees. The framers of the constitution
have thought proper to define their meaning to ·be, that they
were not foreign nations nor states of the unionJ but Indian
tribes; thus declaring the sense in which they should be con­
sidered under the constitution, wnich refers to them as tribe�
only, in this clause. I cannot strike these words from the
book; or construe Indian tribes in this part of the constitution
to mean a sovereign state m1der the first clause of the second
section of the third article. It would be taking very great
lib,erty in the expositt0n of a fundamental law, to bring the
Indians under the action of the legislative power as tribes,
and of the judicial, as foreign states. The power con­
ferred to regulate commerce with the Indian tribes, is the
same given to the old congress by the ninth article of the old
confederation, "to- regulate trade with the Indians/' The
raising the word "trade" to the dignity of commerce, regu-
44 SUPREME COURT.
[The Cherokee Nation"'· The State- of Georgia.]
lating it with Indians or Indian tribes,js only a change of
words. Mere phraseology cannot ,make Indians nations, or
Indian tribes foreign states.
The se·cond clause of·the third section of the fourth article
of the constitution is equally convincing. "The congress shall
have power to dispose of, and make all needful regulations
and .1.:ules respecting the territory of the United States." What
that territory was, the rights of soil, jurisdiction, and sove­
reignty claimed and exercised by the states and the old con­
gress, has been already seen. It extended to the formation
of a government whose Jaws and process were in force within
its whole extent, without a saving of India11 jurisdiction. It
is the same power 'which was delegated to the old ·congreBB,
and, according to the judicial interpretation given by this
court in Gibbons vs. Ogden, 9 Wheaton, 209, the wo'rd "to
regulate" implied in its n_ature 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. .Apply­
ing this constr.uction to commerce and territory,- leaves the
jurisdiction and sovereignty of the Indian tribes wholly out ()f
the question. The power given in thiit clause is of: the most
plenary kind. Rules and regulations· respecting the territory
pf the United States; they necessarily include complete juris­
diction. It was necessary to confer it without limitation, to
enable ·the new government to redeem the pledge given by
the old in relation to the formation- and powers of the new
states. The saving of " the claims" of " any particular state"
is almost a copy of a similar provision, part of th� ninth article
of the old confederation; thus delivering over to the new con•
gress the pow.3r to regulate commerc.e with the Indian ·tribes,
and regulate the territory they occupied, as the ·old had done
from the beginning of the revolution.
The only remaining clause of the·constiwtion to be consid­
ered is the second clause in the sixth article. " All treaties
made, or to be made, shall be the supreme law of_ the land."
In Chirac vs. Chirac, this court declared that it was unne­
cessary to inquire into the effect of the treaty with Francein-
1778 under the old· confederation, becaus� the confederation
had yiel.ded to our present constitution, and this treaty had
been the supreme law of the land. 2 Wheaton, 271. I con-
 JANUARY TERM-1831. 45
[The Cherokee Nation H. The State of Georgia,]
sider the same rule as applicable· to Indian treaties, whether
considered as national compacts between sovereign powers, or
as articles, agreeipents,·contracts or stipulations on the part of
this government, binding and pledging the faith of the nation
to the faithful observance of its conditions. They secure to
the Indians the enjoyment of the rights they stipulate to give
or secure, to their full extent, and in. the pleniti1de of good
faith; but the treaties must be considered as the rules of reci­
procal obligations. The Indians must have. their rights; but
must claim them in that capacity in which they received the
grant or guarantee. They contracted by putting themselves
under the protection of the United States, accepted of an allot­
ment of hunting grounds, surrendered and delegated to con­
gress the exclusive regulation of their trade and the manage­
ment of all their own affairs, taking no assurance of their con­
tinued sovereignty, if they had any before, but relying on the
assurance of the United States that they might have full confi­
dence in their justice respecting.their interests; stipulating only
for the right of sending a deputy of their own choice to con­
gress. If, then, the Indians claim admission to this court un­
der the treaty of Hopewell, they ('.annot be admitted as foreign
states, and can be received in no other capacity.
The legislation of congresS' under the constitution in rela­
tion to the Indians has been in the same spirit and guided
by the same principles, which prevailed in the old congress
and under the old confederation. In order to give full effect
to the ordinance of 1787, in the north west territory, it was
adapted to the present constitution of the United States in 1789,
2 Laws U. S. 33; applied as the rule fo� its government to
the territory south of the Ohio in 1790, except �he sixth ar­
ticle, 2 Laws U. S. 104; to the Mississippi territory in 1798,
3 Laws U. S. 39, 40 and with no exception to Indiana in
1800, 3 Laws U. S. 367; to Michigan in 1805, 3 Laws U.
S, 632; to Illinois in 1809, 4 Laws U. S. l 98.
In 1802 congress passed the act regulating trade and inter­
course with the Indian tribes, in which they assert all the
rights exercised over them under the old confederation, and
do not alter in any degree their political relations, 9 Laws
U. S. 460, et seq, In the same year Georgia ceded her lands
· west of her present boundary to the United States;. and by the
46 SUPREME COURT.
[The Cherokee Nation 'VB. The State of Georgia,]
second article of the convention the United States ceded to
Georgia wha�ver claim, right or title they may have to the
jurisdiction or soil of any lands. south of Tennessee, North or
South Carolina and east of the line of the cession by' Georgia.
So that Georgia now has all the rights attached to her by her
sovereignty within her limits, and which are saved to her by
the second section of the- fourth article of the constitution, and
all the United States could cede either by their power over
the territory·qr t}:leir treaties with the Cherokees.
The treaty with the Cherokees, made at Holston in 1791,
contains only one article which has a bearing on the political
relatior.1 ·of the contracting parties. In the second article the
Cherokees stipulate "that the said Cherokee nation will not
hold any treaty with any foreign power, individual state,
or with individ1, als of any state." I Laws U. S. 826.
This affords an instructive definition of'the words nation and
treaty. At the treaty of Hopewell the 0herokees, though
subdued and suing for peace, before divesting themselves of
any of·the rights or attributes of sovereignty which this gov­
ernment ever recogni�ed them as possessing by the co�sum­
mation of the treaty, contracted in .the name of the head men
and warriors of all the Cherokees; but at Holston· in -1791, -i11
abandoning their last remnant of political right, contracted as
the Cherokee nation, thus ascending in title as they descended
in power,. and applying the word treaty to a contract with an
individual: this consideration 'Yl'ill divest words of their magic.
'In thus testing the rights of the complainants as to thei,
national character by the old confederation, resolutions and
ordinances of the old congress, the provisions of the consti­
tution, treaties held under the authority of both, and the ·sub-
11equent legislation thereon, I have followed the rule laid down
for my guide by this court, in Foster vs. E!am, .2 Peters, 807,
in doing .it "according to· the principles established by the
political department of the government. "If the course of
the nation has been a plain one, its courts would ·hes_itate to
pronounce it erroneous. However individual judgee may
co_nstrue themHreaties), it is the province of the court to
e01;1form its decisions to the will of the legislature, if that will
has been clearly expres_sed." That the existence of foreign
states cannot be known to this court judicially except by some·
 JANUARY TERM 1831. 47
[The Cherokee Nation tis. The State or Georgia.]
act or re.cognition of the other departments _of this govern­
ment is, I think, fully established i n the case of Palmer, S
Wheaton, 634,5; the Pastora, 4 Wheaton, 63; and the Anna,
6 Wheaton, 193.
I shall resort to the same high authority as the basis of my
opinion on the powers of the state governments. "By ·the
revolution the duties as well as the powers of government
devolved on the people of [Georgia] New HampshirJ It is
admitted that among the latter were comprehended the trans­
cendent powers of parliament, as well as those of the exe�u­
tive department." Dartmouth College vs. Woodward, 4
Wheat. 451, 4 Wheat. 192; G�een vs. Biddle, 8 Wheat.
98; Ogden vs. Saunders, 12 Wheat. .254, &c. "The same
principle applies though with no greater force to the dif­
ferent states of America; for though they form a confederated
government, yet the several states retain their in?ividual so­
vereignties, and with respect to their· municipal regulations
are to each other foreign." Buckner vs. Findley, 2 Peters,
591. The powers of government, which thus dev-olved on
Georgia by the revolution over her who!� territory, are un­
impaired by any surrender of her territorial jurisdiction,_ by
the old confederation or the new constitution, as there was in
both an express saving, as well as by the tenth article of
amendments.
But if any passed to the United States by _either, they were
retroceded by the convention of 1802. Her jurisdiction over
the territory in question is as supreme as tl}at of congress
over what the nation has acquired by cession from the �tates
or treaties with foreign powers, combining the rights of the
state and general government. Within her boundaries there
can be no other nation, community, or sover�ign power,
which this department can judicially recognize as a foreign
state, capable of demanding or claiming O!Jr interposition, so as
to enable them to exercise a jurisdiction incompatible with a
sovereigt?ty in Georgia, which has been recognized _by the
constituti9n, and every department of this government acting
under its authority. Foreign states cannot be created by judi­
cial construction; Indian sovereignty_ cannot be roused from its
long slumber, and awakened to action by our fiat. I find no
acknowledgement ofit by the legislath�e or executive power_
48 �UPREME COURT.
[The Cherokee lliation t1s. The State of Georgia.]
Till they have done so, I can sfretch forth. no arm for their
relief without violating the constitution. I say this with
great deference to those from whom I dissent; but my judg­
ment tells me, I have no power to act, and imperious duty
compels me to stop at the portal, unless I can find some nu­
thority in the judgments of this court, to which I may surren­
der my own.
Indians have rights -0f o.ccupancy to their lands as sacred as
the fee-simple, absolute title of the whites; bl.ft they are only
rights of occupancy, incapable of alienation, or being held by
any other than 'common right without permission from the
government. -� Wheaton, 592. In Fletcher vs. Peck, this
court decided that the Indian occupancy was m:1t absolutely
repugnant to a seisin in fee.in Georgia, that she had good
right to grant land so occupied, that it was within the state,
and could be held by purchase:i:s·under. a law subject only to
extinguishment of the Indian title. 6 Cranch, BB, 142. 9
Cranch, 11. In the case of Johnson vs. M'Intosh, B Whea­
ton, 548, 571, the nature of tlie Indian title to land OQ
this continent, throughout its. whole extent, was most ably
.and elaborately considered; leading to conclusions satis­
factory to every jurist, clearly establishing that from the
time of discovery under the royal government, the colo­
nies, the states, the confederacy and this union, their tenure
was the same occupancy, their rights occupancy and nothing
more; that the ultimate absolute fee, jurisdiction and so­
vereignty was in the government, subject only to such rights;
that grants vested soil and· dominion, and the powers of go­
vernment, whether the land granted was vacant or occupied
by Indians;
By the treaty of peace the powers of government and the
rights of soil which had previously been in Great Britain,
passed definitively to these states. 8 Wheat. 584. They as­
serted these rights, and ceded soil and jurisdiction to the
United States. The Indians were considered as tribes of fierce
savages; a people with whom it was, impossible to mix,
and who could not be go\r.erned as a distinct society.
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
 JANUARY TERM 1831.

[The Cherokee Nation vs. The Stale of Georgia.]

relations to the general or state governments. The princ!iples
established in this case have been supposed to apply to the
rights which the nations of Europe claimed to acquire by dis­
covery, as only relative between themselves, and that they
did not assume thereby any _rights of" soil or jurisdictio_n over
the territory in the actual occupation of the Indians. But
the language of the court is too explicit .to be misunderstood.
" This principle was, that discover.y ga.ve· title to the govern:.
ment by whose subjects or by whose authority it was made,
against all other European governments, which titl� ·might
be consummated by pt)Ssession." Those relations· which
were to subsist between the discoverer and the natives were
to be regulated by .themselves. The rights thus.acquired being
exclusive, no other p:nver could interpose between·them.
While the different nations"'"of Europe -respected the rights
of_ the natives as occupants, they asserted the ultimate domi­
nion to be in themselves; and claimed and exercised as a con­
sequence of this ultimate dominion, a power to grant the soil
while -yet in the possession of the natives. These grants have
been understood by all to convey a title to the grantees, sub
ject only to the Indian rights of occupancy. The history of
America frem its discovery to the present day proves, we think,
the universal recognition of these principles.. · 8 Wheat. 574.
I feel it my duty to apply them to this.case. They are in
perfect accordance with those on which the governments of the
united and Individual states have acted in all tlreir clianges:
they were asserted and maintained by the colonies, before
they assumed independence. While dependent themselves on
the crown, they exercised all the rights of dominion and ·sove­
reig1uy 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. If their jurisdictio� within. their boun­
daries has been- unquestioned until this ·controversy; if rights
have been exercised which are directly repugnant to those
now claimed; the judicial power cannot· divest the states of
rights of sovereignty, and transfer them to the Indians, by de­
creeing them to be a nation, or foreign state, pre-existing and
with rightful jurisdiction arid sovereignty over the territory
they occupy. This would reverse every' principle on which
our government have acted for fifty-five years; and force, by
VoL. V.-G
50 SUPREME COURT.
[The Cherokee Nation os. The State of Georgia.]
mere judicial power, upon the other departments of this gov­
ernment and the states of this union, the recognition of the
existence of nation� and states within the limits 6f both," poss­
essing dominion and jurisdiction paramount to the federal
and state constitutions. It will be a declaration, in my de­
Iib!)rate judgment, that the sovereign power of the people of
the United States and union must hereafter remain inca­
pable of action over territory to which their righf� in full
dominion have been asserted with the most rigorous au­
thority, and bow to a jurisdiction, hitherto unknown, unac­
knowledged by any department of the government; denied
by all through all time; unclaimed till now; and now declared
to have been called into exercise, not by any change in our
constitution, the laws of the union or the states; but pre-exist­
ent and paramount over the supreme law of the land.
I disclaim the assumption of a judicial power so awfully re­
sponsible. No assurance or certainty of suppor� in public
opinion can induce me to disregard a law so supreme; so
plain to my judgment and reason. Those, who have brought
public opinion to bear on this subject, act under a mere moral
responsibility; under no oath which binds their movements to
the straight and narrow line drawn by the constitution. Poli­
tics or philanthropy may impel them to pass it, but when their
objects can be effectuated only by this court, they must not
expect its members to diverge from it, when they cannot con­
scientiously take the first step without breaking all the high
obligations under which they administer the judicial power of
the constitution. The account of my executorship cannot be
settled before the court of public opinion, or any human tri­
bunal. None can release the balance which will accrue by
the violation of my solemn conviction of duty.

Mr Justice THOMPSON, dissenting.-Entertaining different

views of the questions no�v before us in this case, and having
arrived at a conclusion different from that of a majority of
the court, and considering the importance of the case and the
constitutional principle involved in it; I shall proeeed, with all
due respect for the qpinion of others, to assign the reasons
upon which my own has been formed.
In the opinion pronounced by the court, the merits of the
 JANUARY TERM 1831. 51

[The Cherokee Nation vs. 1'he State of Georgia.]

controversy between the state of Georgia and the Cherokee
Indians have not been taken into consideration. The denial
of the :q>plication for an injunction has been placed solely on
the ground of V{lJ.nf of jurisdiction in this court to grant
the relief prayed for. It became, therefore, unnecessary to
inquire into the merits of the case. But thinking as I do that
the -court has jurisdiction ofthe case, and may grant relief, at
Ieastin 'part; "it may become necessary for me, in the course of
my opinion, to glance at the merits of the controversy; which I
shal11 however, do -:very briefly, as it is important so fat: as
relates to the present application.
Before entering upun the examination of the particular
points which have been made and argued, and for ·the pur­
pose of guarding against any erroneous conclusions, it is proper
that I -should state, that l do not claim for this court, the
exercise of jurisdiction upon any matter properly falling un­
der the denomination of _political power. Relief to the full
extent prayed by the bill m_ay be beyond the reach of this
court. _ Much of the matter therein, contained, by way of
complain , would seem to depend for relief upon the exer­
cise of political power; and as such, appropriately devolving
upon the executive, and not the judicial department of the
government; This court can grant relief �o far only as the
rights of person or propertv·are drawn in question, and have
been infringed.
It would very ill become the judicial s,tationwhich I hold, to
indulge in any remarks upon the l><trdship of the case, or the
great injustice that would seem to have been done to the com­
plainants, according to the statement in the bill, and which for
the purpose of the present motion I must assume to be t�e. Ii
they are entitled , to other than judicial relief, it cannot b,e ad­
mitted that in a governm,ent like ours, redress -is not to be had
in some of its departments; an� the responsibility for its denial
mast rest upoi:r those who have the power to grant !t. But
believing as I do, that relief to some extent falls properly
under judicial cognizance; I i:;hall proceed to the examination
of the case under the following heads.
1. Is the Cherokee nation of Indians a competent party
to sue in this court?
 SUPREME COURT.
[Tha Cherokee Nation 11s. Tlie Slate of Georgia.]

2. ls a sufficient case made out in the bill, to warrant thif

court in grantit;1g any relief ?
3. ,Is an injunction the fit and appropriate relief?
1. By the constitution of the United States it is declared
(Art. 3, §. 2), that the judicia,l power shall extend t_!> �II cases.
in 19:w and equity; arising. under this constitution, the laws of
the United States, and treaties made or which shall be made
under their -authority; &c. _to controversies between two or
more states, &c. and between a state or the citizens thereof;
and foreign states, citizens or subjects.
· The co�trovcrsy in the present ca�e is alleged to be between
a foreign state, and one of the states of the union; and does
not, therefore, come within the eleventh amendment of the
constitution, which declares that the judicial power of the
United States, shall not be construed to extend to .any suit in
law or equity commenced or prosecuted against one of the
United States by citizens of another state, or by �itizens or
subjects of agy foreign. state. This .amendment does not,
therefor!;'!, extend to suits prosecuted against one of the United
States by a_ foreign &I.ate.. The constitution further provides,
that in aft cases where a state shall be a party, the supreme
court sha,11 have original jurisdiction. Under these provi­
sions in the constitution, the complainants have filed·their bill
in this court�- in the character of a foreign state, against the
state of Georgia; praying an i�junction to restrain that state
from committing various _alleged vi_olations of the property of
. the nation, claimed under the Jaw,s of the United States, and
treaties made with the Cherokee nation.
That a state of this union may be sued by a foreign state,
when a proper case ex.ists and is presented, -is too plainly and
expressly declared in the constitution to admit of. doubt; and
the first inquiry is, whether the Cherokee nation is � foreign
state within the sense and meaning of the constitution,
The terms state and nation are used in the law of nations,
mi well as in col)lmon parlance, as importing the same thing;
and imply a body of :r:nen, uniied together, to procure their
mutual safety and advantag� by means of their unio_n. Such
a society has its affairs and interests to manage; it deliberates;
and takes resolutions in common, and thus becomes a moral
 JANUARY TERM 1831. 53

[The Cherokee Nation 1'6, The State of Georgia.]

person, having an understanding and a will peculiar to itself,
and. is susceptible of obligations and laws. Vattel, I. Nations
being composed of men naturaIIy free and· independent, and
who� before the establishment of civil societies, live together
in the state of nature, n�tions or _sovereign states; are to be
cpnsidered as so. many free person:,, living, together in a
state of nature. Vattel 2, § 4. . Every natim:i that governs
itself, under whnt _ form soever, without any dependence
on a foreign power, is a sovereign state. Its rights are
naturally the-same as tbose of any other state Such are mo­
ral per,iOns who live together in a natural soeiety,- under the
law of nations. It is su1p.cient if· it be reaily sovereign and
independent: that is, it must govern itself by· its own autho­
rity and laws. vye ought, therefore, _to reckon in the number
of sovereigns those states that have bound themselves to an­
other more-pow,erful, although by an unequal alliance. The
·conditions of these 1,mequal alliancesinay be infinitely varied;
but whatever they are, p:ro,v�ded the inferior ally reserves- .to
it�elf the sovereignty or _the right to gcrvern its own body, it
ought t,o _be consider� an independent state. Consequently,
a weak sta.te, that, in oi;der to provid�· for its aafety; places it­
s.elf under the protection of.a more powerful one, without
stripping itself of the right. of government. and sovereignty>
doct1 not cease on this account to: be placed. among the soye­
reigns ,who acknowledge no other power. Tributary .and
feudatory states do not thereby- c�ase to be sovereign and in­
dependent stat�s, s.o long as self_gpverthpent, and sovereig-!l
and indepeµdent authority is left in the. administration. of the
state. Vattel, c. 1, pp. 16, 17.
Testing the character and condition of the Cheroke!:l_Indians
by these rules, it is not perceived how it is possible to escape
the conclusion, that thQy form asovereign state. They have al­
ways been dealt with as such by the govetnment of the United
States; both before and since the adoption of the present consti­
tution. They have been admitted and treated as a people- go­
verned solely and excluslv.ely by their own laws, usages, and
customs within their own terri�ory, claiming and exei:-cising ex­
clusive don;union over the same; yielding up_ by irE'.aty,. from
timetotime, portions- of. their land, but-stil! claiming absolute
sovereignty and self government over .what remained unsold.
 54 SUPREME C9URT.
(The Cherokee Nation 111, The Slate of Georgia,]
And this has been the light in which they have, until recently,
been considered from the earliest settlement of the aountry by
the white people. And indeed, I do not understand it is denied
by a majority of the court, that the Cherokee Indians form a
sovereign state according to the doctrine of the law of nations;
but that, although a sovereign state, they are not considered
a foreign state within the meaning of the constitution.
·whether the Cherokee .I,ntlians are to be considered a fo.
reign state or not, is a point on which we cannot expect to
discover much light from the law of nations. We must de­
rive this knowledge chiefly from the·practice·of our own go­
vernment, and the light in which the nation has been viewed
and treated by it•
.That numerous tribes of Indians, and among others the Che­
rokee nation, occupied-many parts of this country long before·
the discovery by Europeans, is abundantly established by his­
tory; and it is not denied but that the Cherokee nation occu­
pied the territory now claimed by them long before that pe­
riod. It does not fall within the scope and object of the pre­
sei{t inquiry to go into a critical examination of the nature and
extent of the rights growing out of such occupancy, or the jus­
tice and humanity with which the Indians have been treated,
or their rights respected.
That they are entitled to such occupancy, so long as they
choose quietly and peaceably to remain upon the land,. can­
not be questioned. The circumstance of their original occu­
pancy is here referred to, merely for the purpose of showing,
that if these Indian communities were then, as, they certainly
were, nations, they must have been foreign nations, to all the
world; not having any connexion,. or alliance of any descrip­
tion, with a:ny other power on earth. And if the Cherokees were
then a foreign nation; when or how have they lost that cha­
racter, and ceased to be a distinct people, and become incor­
porated with any other community?
They have never been, by conquest, reduced to the situation
of subjects to any conqueror, and thereby, lost their separate
national existence, and the rights of self government, and be­
come subject to the laws of the conquerol". When ever wars
have taken place, they have been followed by regular trea­
·ties of peace, containing stipulations on each side according
 JANUARY TERM 1831. 55

[The Cherokee Nation V8, The State of Georgia.]

to existing circumstances;, the India'1 nation always preserv­
ing its distinct and separate national character. And notwith­
standing we do not recognize the right of the Indians to trans­
fer the absolute tille of their lands to any other than our­
selves; the right of occupancy is still admitted to remain in
them, accompanied with the right ofself government,according
to their own usages and customs; and with the competency to act
in a national capacity, although placed under the protection of
-the whites, and owing a qualified subjection so fer as is re­
quisite for public safety. But the principle is universally ad­
mitted, that this occupancy belongs to them as mattez: of right,
and not by mere indulgence.. They cannot be disturbed in
the enjoyment of it, or deprived of it, without their free con­
sent; or unless a just and necessary war should sanction their
dispossession.
In this view of their· situation, there is as full and
complete recognition of their sovereignty, as if they were
the absolute owners of the soil. The progress made in civi­
lization by the Cherokee Indians cannot surely be consider­
ed as in any me�e destroying their nationaJ or foreirn
character, so long as 't,hey are permitted to maintain a sep­
arate and distinct governmenJ;; it is their political con­
dition that constitutes their foreign character, and in. that
sense must the termfore!gn, be understood as used in the con­
stitution. It can have no relation to local, geographical, or
territorial position. It cannot mean a country beyond sea,
Mexico or Canada is certainly to be considered a foreign
country, in refet'ence to the United States. It is the pol!­
tical relation in which one government or country stands to
another, which constitutes it foreign to the other. The
Cherokee tetritory being within the chartered limits of
Georgia, does. not affect the question. When Georgia is spoken
of as a state, reference is had to its political character, and not
to boundary; and it is not perceived that ;my absurdity or fo..
· consistency grows out of the circumstance, that the jurisdic­
tion and territory of the state of Georgi.a surround or extend
on eV-ery side of the Cherokee territory. · It may be in�on..
venient to the state, and very desirable, that the Cherokees
should be removed; but it does not at all affect the political
relation betwee.n Georgia and those Indians. Suppose the
 56 SUPREME COURT.
(The Cherokee Nation t111. The Stat,e of Georgia.]
Cherokee territory had been occupied by Spaniards or any
other civilized people, instead of Indians, and they had from
time to time ceded to the United States portions of their lands
precisely in the same manner as the Indians have done, and
in like manner retained and occupied the part now helcl by
the Cherokees, and ·having a regular government established
there: would it not only be considered a separate and distinct
nation or state, but a foreign nation, with reference to the
state of. Georgi.a or the United States. If we look to lexicog­
raphers, as well as approved writers, for the use of the term
foreign, it may be applied with the strictest propriety to the
Cherokee nation.
In a general sense it is applied to any person or thing belong­
ing to another nation or country. We call an alien a foreigner,
because he is not of the country in which we reside. .In a po­
litical sens� we call every country foreign, which is not within
the jurisdiction of the same government. In this sense; Scot-
- land before· the m�ion was foreign to England; a�d Canada
and Mexico foreign to the United States. In the United
States all transatlantic countries are foreign to us. But this is
not.the only sense in which it is used.
: It is applied with equal propriety to an adjacent territ!)rY, as
to on� more remote. Canada or Mex�co is as much foreign
to us as England or Spain. .And it. may be laid down as a
gener.al rule� that w.hen used in relatior> to countries in a poli­
tical sense, it refers to the jurisdiction or government of the
co.untry. In a commercial sense, we call all goods co111ing
f(om any country not within our own jurisdiction foreip;n
goods.
ln the diplomatic use of the term, we call every minister a
foreign min�ster who comes from another jurisdiction or gov­
ernment,. And this fts the sense in which it is judicially used
by this. court, even -as between the different states of this
uni9n. In the case of Buckner vs. Finlay, 2 Peters, 590, it
was ·held that a bill of exchange drawn in one state of the
union, on a person·living in another state, was a foreign bill,
and to be treated as such in f.he courts of the United States.
The court says, that in applying the d13finition of a foreign
bill, to the political character of the several states of this
union, in rela�on to each other, we are all �!early of opinion,
 .JANUAllY TERM ISSI. 57

· (The Cl\erokee Nation 111, The State'ofGeorgla.]

that bills drawn in one of these states upon persons living in
another of them, · partake of_ the character of foreign bills,
and ough,t, to _be so treat�dJ That for all national purposes
embra"Ce1l·by -the federal constitution, the states and 'the citi­
zens tbel'eof ate one; united ander the same sovereign autho­
rity, and governed by the same Jaws. In all other respects,
the states are necessarily foreign to, and independent of each
other; their constitutions and forms of governmeµt_ being,
although republioan,_altogether different, as are their laws and.
institutions. So in the case of Warder vs. Arrell, decided iri
the court of appeals of Virginia, 2 Wash. 298. The court,
in speaking of foreign. contracts, and saying that the laws of
the foreign country where the contract was made must govern,
add; 1he same principle applies,though with no greater force,
'to the difl'erent states of America:. for though they form a
confederated ·government, yet ·the several states retain their
individual sovereignties; and, with respect to their municipal_
'regulations, are to each other foreign.
It is manifest from these cases, that a foreign state,judicially
considered, consists fn its being under a different jurisdiction
or government, without any reference to its territorial posi­
tion. .This is the marked distinctiQn, particularly in the case
of Buckner vs. Finlay. So far as these states arc subject to
the laws of the union, they are not foreign to each other. But
so far as they are subject' to "their own respective state laws
and government, they are foreign to each _other. And if, as
here decided, a separate and distinct jurisdiction or govern­
ment is tlie test by which to decide whether a nation be foreign
or not; I :.i,m unable· to perceive· any sound and substantial
reason why the Cherokee nation should not be so considered.
It is governeq by its own laws, usages and customs: it has no
connexion with any other government or jurisdiction, except
by way of treaties ,entered into with like form and ceremony
as with other foreign nations. And this seems to be the view
taken of them by Mr Justice Johnson in the cas�· of Fletcher
vs. Peck, ti Cranch, 146; 2 Peters's Condens. Rep. SOS.
In speaking of t�e state and condition of the different Indian
nations, he observes, "that some have totally extinguished
their national fire, and submitted themselves to the laws of
the states; Qthers have by treaty acknowledged that they hold
VoL. V.-H
 SUPREME C9URT.
[The Cherokee Nation ti5. The State of Georgia.]
their national existence at the will of the state,. within wh\ch
they reside, others retain a limited so\·ereignty, and the abso•
· lute proptietorship of their soil. The latter is the case of ,the
tribes to the west of Georgia, among which are the Cherokees,
We legislate upon the conduct of. strangers or citizens within
their limits, but innumerable treaties formed with them ac­
knowledge them to be an independent people: and the uni­
form practice of acknowledging their dght of soil by pur­
chasing from "them, and restraining all persons from encroach­
ing upon their te!ritory, makes it unnecessary to insist upon
their rights of .soil.'�
Although there are many·cases in which one of these United
States· has been · sued by another, I am not aware of any in­
stance in which one of the United States has been sued by a
foreign state," Bu€ no doubt can be entertained-that such an
action might b� sustained upon a proper case being presented.
It is expressly provided for in the copstitution; and this pro­
vision is ·certainly not to. be rejected as entirely nugatory.
Suppose· a sta�e, with the consent of congress, should enter
into an agreement with a foreign power (as might undoubtedly
be done, Constitution, Art. I, § IO� for a loan of money; would
not an action be sustained in this court to: enforce payment
there9f ?" Or suppose the state of Georgia, with the consen't
of congress, should purchase the rjght of the· Cherokee In­
dians to thiti territory, and enter into a contract for the pay­
ment 01 the purchase money; could there be a doubt that an .
action eould be sustained upon such a contract? No oojection
would certainly be made for want of competency in that nation
to· make a valid contract. The numerous treaties entered
into with, the nation would be a conclusive answer �o any
such obje1:tion; And if an action could be aus·tained in such.
case, it must be under thaf provision in the constitution
which gives jurisdiction to · this court ii;i controversies be­
tween a state an:d a foreign state. FQt the Cherokee nation is
certainly not one of the United Statel!,·
And what possible objecfron can lie to the right of the .com­
plainants to sus�in an action? The treatiE!s made with this 'na­
Jion purport to secure to it certain rights. These are not gra­
tuitous obligations assumed on the part of toe United States.
�· They are obligations found�d upon a conside:atio11 pllid by the
.
 JANUARY· TERM 18�1. 59
[The Cherokee Nation "'· The State of ,G�orgia,!
fodians by cession of part of their territory. And if they, as a
nation, ar_e $lOmpetent to make a treaty oi;·contract', it·woul.d
seem tG me to be a strange inconsistency to deny to them the
right nnd the pctwer to enforce such p. contract. And where the
right secured by such treaty forms a proper s_ubject for judicial
cognizance, I can perceive no reason wlJy this court has not
jurisdiction of the case. Thi3 constitution expressJy gives to .
the court jurisdiction in all cases of law .arid equity arising
under treaties made with the United States. No suit will lie
against the United States upon such treaty, because no possi"­
ble case can exist where the United States can be sued. But
not so with respect to a: state: and if any right secured by
treaty has been violated by a state, in a ease· p.roper·fOI' juqi"
cial inquiry, no good reason .is perceived why an action may
not be sustained·for violatio� of a right secured by treaty, as
well as by contract under any other form. The judiciary is
certainly not the- department of the government authorised to
enforce all rights that may be recognized and. secured by
treaty. In many instances, these 3.!e mere political rights with
which the judiciary cannot deal. But' when the question re"
111,tes to· a mer.e right of property, and a proper-•case can be
made between competeQt parties; it forms a propei: subject for'
judicial inquiry.
It is a rule which h� been repeatedly sanctioned by this
.court, that the judicial department is to ·consider as sovereign.
and independent states.or nations those powers, that are recog"
nized as suck �y the executive and legislative departments of
the government; they being more particularly entrusted wJth
our foreign relations. 4"Cranch, .241, .2 Peters's Cond. Rep. 9S:;
S Wheat.· 634; 4 W.beat. '6,:1;.
If we look to the whole course of-treatment by this c�untryof
the Indians, from the year 1 775, to the present day, when de.al"
ing with tl.�m in their aggregate capacity as nations or tribes,
and regarding the mode and manner in which all negotiations
have been carried oil and concluded with them; the conclusion.
appears ·to me irresistible, that they have been regarded, by the
executive and legislative branches of the g�vernment, not only
as sovereign and independent, but as foreign nations or tribes,
not within the Jurisdfotion nor under the government of the
1tates within which they were located. This remark·is to be
60 SUPREME COURT .

[The Cherokee Nation "'· The State of Georgia.]

understood, of course, as referring only to such as li:ve together
as a distinct community, under their own laws, usages and cus­
toms; and not to the mere remnant of tribes' which are to be
found in many parts of our country, who have become mixed
with the general population of the -country: their national
character extinguished; and their usages and customs in ·a
great measure abandoned; self government surrendered; and
who have voluntarily, or by the force of circumstances which
surrounded them, gradually become subject to the laws of the
states within which tMy are sitµated.
Such, however, is not the case with the Cherokee nation.
It retains its usag�s and .customs and self government, greatly
improv.ed by the civilization which it has been the policy of
the'United StateEI to �ncourage and foster among them, All
negotiations carried o� with the Cherokees and other Indian
nations hare lieen by way of treaty with all the formality at­
tending the making of treaties with any foreign power. The
journals of· CQngress, from the year 1775 ·down to the adop­
tion of the present constitution, -abundantly establish this fact.
And since that·period such negotiations h?-ve been carried on
by the treaty-making power, and ttniformly under the denomi-
nation of'. treaties.
What is a treaty as understood in the law of nations? It is
an agreement or contract _betwe�n two or more nations or
sovereigns, entered into by agents appointed for that purpose,
and duly-sanctioned by.the supreme. power of the respective
parties. And where is the ·authority, either in the constitu­
tion or in the· practice of the government, for making any
distinction· between treaties made with the Indian nationa and
any other foreign power? They relat� to peace and war; the
surrender of. priseners; the cession of territory; and the vari­
ous subjects which.are ·usually embraced in such contracts }>e­
tween sovereign nations.
A recurrence to the various treaties made, with the Indian
nanons and tribes in different parts of the country, will .fully
illustrate this view of the relation in which our government
has considered the Indians as standing. It will be sufficient,
hqwever, to\]\otice a few ef the many treaties made with this
Cherokee nation;
By the treaty of Hopewell of the �8th November ,1785,
 JANUARY TERM 1831. 61
[The Cherokee Nation "'· The State of Georgia.]
1 Laws U. S. 322, mutual stipulations are entered- into,
to restore all prisoners taken by either .party, and the Che­
rokees stipulate to restore all negroes, and all other pro­
perty taken from the citizens of the United States; and
a boundary line is settled between the Cherokees, and the
citizens of the United States, and this embraced territory
within the chartered limits of Georgia. And by the sixth
article it is provided, that if any Indian, or person residing
among them, or who shall take refuge··in their nation, shall
commit a robbery, or murder, or oth_er capital crime on any
citizen of the United States, ·.or person under their prote�tion,
the nation or n-ibe to which such offender may belong shall deli­
ver him up .to be punished according to the ordinances of the
United States. What more explicit recognition of the sove­
reignty and independence of this nation could have been
made? It wa� a direct acknowledgement, that this territory
was under a foreign jurisdiction. If it had been understood,
that the jurisdiction of the state.of Georgia extended over.this
territory, no such stipulation woald have been necessary.
The process :of the courts of Georgia would have run foto this
as well as into any other part of the state. It is a stipulation
analogous to that conta:ine� in -the treaty of 1794 with Eng­
land, 1 Laws U. S. 220, by the twenty-seventh article of which it
is mutually agreed, that each party will deliver' up to justice all
persons, who, being charged with murder or forgery commit­
ted withirr the jurisdiction of 1:ither, shall seek an asylum
within any of the countries of the other. Upon what ground
can any distinction be made, as to the reason and necessity of
such stipulation, in -the respective treaties. The necessity
for the stipulation in both cases mus£ be, because the process
of· one government and jurisdiction will not run into that of
another;. and separate and. distinct jurisdiction, as has been
shown, is what makes governments and nations foreign to· each
other in their political relations.
The same stipulation, as to delivering up criminals. who
shall take refuge in the Cherokee nation; is contained in the
treaty of Holston of the 2d of July 1791; 1 Laws U. S. 327.
And the eleventh article fully recognizes the jurisdiction of
the Cherokee nation over the �erritory occupied by-them, It
provides, that if any citizen of the United -States shall go into
 6.2 SUPREME COURT.
[The-Cherdkee N11tion 111, The State of Georgia,]
the territory belonging to the Cherokees,·and commit any
crime 1:1pon, o;.· trespass against the person, or propetty of any
friendly Indian, which, if committed within the jurisdiction of
any state, would be punishable by the laws of such state, sha11
he subject to the same punishment, and proceeded against in
tlie same manner, as if the offence had been committed within
the jurisdiction of the state. Here is an explicit admission
th.at the Cherokee territory is not within the jurisdiction of any
state. If it bad been ,considered within the jurisdiction of
· Georgia; such a provisioJ?. would not only be unnecessary but ab.:i
surd� It is a-provision looking to the punishment of a citizen
oft.he United States.for some act done in a foreign country.,
If exercising exclusive jurisdiction over a country is sufficient
to-constitute the state or power so exercising it a foreign state., .
the Cherokee natioµ may assµredly with the· greatest propriety
be so ·.considered.
The plir115eology of the ·clause in the constitution, giving to
congress .the power to regulate commerce,is supposed to afford
an ar�lJ!ent aga,inst considering the Cherokees a foreign na­
tion. The clause reads thu.s, ''to regulate commerce with
foreign nations, .and.among the se,:veral states,and with the In­
dian tribes." Constitution, Art. l, § 8. · The argument is,,that if
the Indian tribes. are (oreign Ilation}l, they would have been
included .without being specially named, and being so named
imports something· different from the previous term "fo­
reign nations."
This appears .to me to paTt,ake too much of a mere. verbal
eritici�m, to ,draw after it the important conclusion tliat In­
dian lribes ·are- not foreign nations. But the clause affords,
irresistibly; the conchision,that the Indlan tribes are not there
understood as inclu!leci -within the description, of the " several
states;_" or there eould have been no fitness in immediately'
thereafter particularizing " the Indian trilies."
It is generally understood that every separate body of In­
dians is divided into bands or tribes, a_nd forms a little com­
munity within the nation to which it belongs; an.d as the
,-iation has some particular symbol by which it is distinguished
f�om others, so each trl:be has a papge from which it is de­
nominated, and each tribe may·have rights applicable to itself.
· Cases may arise where the trade with a particular tribe may
 JANUARY 'l'ERM 1ss1. 63

[The Che'rokee Nation"'· The State of Georgia.]

require to be regulated, and which might not have beea-'em;.
braced under the general description of the term nation, or
it might at least have left the case somewhat doubtful; as the."
clause was intended to vest in congress the pow�r to .regulate.all
commercial infercourse, this phraseology was probably adopted
to meet all possible .cases; and the provision would have been
imperfect, if the term Indian fribes had been omitted.
Congress could not then have regulated the trade with any
particular tribe that did not_ extend to the whole nation.· Or,
it may be, that the term tribe is here used as importieg ihe
same thing as that of nation, and ac1opted merely to avoid the
repetition or" the tenn nati01i: and the Indians are specially
named, because there was a provision somewhat analogous in
the confederation; and efntirely omitting to name the Inclia1i
tribes, might have afforded some plausible grounds for con­
_cluding that this !:?ranch of commercial intercourse was not sub-·
ject to the power of congress.
On examining the journals of the old congress, which con­
tain numerous proceedings and resolutions respectiiig the In-
. dians, the terms " nation". and " tribe" are frequently used
indiscriminately, and as importing the same thing; and trea..
ties were sometimes entered into with the Indicans, under the
description or denomination of tribes, without nanii�g the na"
tion. See Journals 30th June and I.2th July 1775; 8th March
1776; .20th October 1777: and numerous other inst;mccs.
But whether any of these. suggestions V{ill satisfactorily
account foi; , the phraseology here used or- not, it appears.
to me to be of too doubtful import to outweigh the consid­
erations to which I have xeferred to show that the Chero­
kees are a foreign nation. The. difference qetween the pro­
vision in the.constitutio� and that in the confederation on �his
subject appears to me to show very satisfactorily, that so- far
as ,related to trade and commerce with the Indians wherever
found in tribes, whether within or withogt the lim�ts of a state,
was subject to the regulation of congress.
The proYision in the confederation, Art. 9, l Laws United
States, 17, is, that congress shall ha,e the power ofregulating
the trade and maqagement of all affairs 1vith the Indians not
members ofany ofthe states, nrovided that the le�islative right
ofany state within its own limits·be not .infringed or violated.
64 SUPREME COURT.
[The Chero�ee_ Na.tion "'· The State of Georgia.)
'fhe true import of this provision-is certainly not very obvious;
see Federalist, No. 4.2. What were the legislative rights in­
tended to be·embr�ced within the proviso is left in great un­
certainty. But whatever difficulty on that subject might have
arisen under the confederation,. it is entirely removed by the
omission of. the proviso in the i,-.esent constitution; thereby
leaving this power entirely with congress, without regard to
any state right on the subject; and showing that the Incl:an
tribes were considered as distinct communities although within
the limits of a state.
The provision, as contained in the confederation, may aid
in illustrating what is to be inferred from some parts of the
constitution, Art. I, § I, par. 3, as to the apportionment of
representatives, and acts of congress in relation to the Indians,
to wit, that they are divided into two distinct classes. One
composed of those who are considered members of the state
within which they reside, and the other .not: the former
embracing the remnant of the tribes who had lost their dis­
tincHve character as a separate community, and had become
subject to the laws of the states; and the latter such as still re­
tained their original connexion aij ttibes, and live together
under their own laws, usages and customs, and, as such, are
treated as a community independent of the state. No very
important conclusion I think, therefore, call' be drawn from
the use pf the term "tribe" in .this clause of the constitution;
intended mer,ely for commercial regulations. If considered
as imp�rting the same thing as the term "nation," it might
have been adopted -to avoid the repetition of the word nation�·
Other instances occur in the constitution-where different
terms are used importing the same thing.. Thus, in the clause
giving jurisdiction to this court,. the term "foreign states"
is used instead of "foreign uations,'' a" in the clauf!e relat�
in g to commerce. And again, in Art. 1, § IO, a still different
phraseology is employed.. "No- state, without the consent
of congress, sha:Il. enter into any agreement or compact-with a
'foreign power., " But .each of these terms, nation, state,
power, as used in different p�ts of the constitution, imports
the same thing, and does not admit of a different interpreta­
tion. In the treaties made· with the Indians, they are some­
times designated under the name of tribe, and sometimes that
 JANUARY TERM 1831. 65
[The Cherokee Nation -i,a. The Stale or'Georgla,1
-of nation. In the treaty of 1804 with the Delaware lndf.lns,
they are denominated · the "Delaware- tribe of 'Indians;" l
Laws United States, 305. And in a previous tte�ty with the
same people in the year 1778, they are designated by the name
of "·the Delaware nation." l Laws United States, 302. .
As this, was one of the· earliest treaties made with the In­
dians, its provisions may serve to show in ·what light the fo.!
<li:in natiohs were viewed by congress at that day.
The territory of the Delaware nation wa.s within· the limits
of the states of New.York, Pennsylvania and New Jersey.
Yet we hear of no claim of jurisqiction set up by those. states
over these Indians. This treaty, both in form and substance
purports to be an arrangement with an indep.cmdent sovereign
pOlver. It even purports to be articles of confederation. It
contains stipulations relative to peace and war, and for per­
mission to the_ United States troops to pass'through the country
df the D�laware · nation. Thal neither party shall protect in
their respective states, servants, slaves, or criminals, fugitives
from the other; but secure, and deliver them up. Trade
is regulated between the parties. And the sixth article shows
the early pledge of the United States to protect the Indians in
their possessions, against any claims or encroachments .of the
states. It recites, that whereas the ·enemies·of the United
States have endeavoured to impress the Indians in generai
with an opinion· that it is the design of the states to extir­
pate the Incllans, and take -pos�ession of their country, to:
obviate such false suggestions; tho.United States ·do engage to
guaranty to the aforesaid nation of Delawares and their heirs,
all their territorial rights, in the fullest and most ample man-·
ner, as it has been bounded by former treaties, &c. And pro­
vision· is even made for inviting other tribes to join the con­
federacy; and to form a state; and have a representation· in
congress; should· it be found conpucive to ·the mutual interest
of both parties. All which provisiorn;:are totally inconsistent
with the idea of these Indians being considered under the
jurisdiction of the states; altl)ough their ahartered limits migh�
extend over them.
The recital,: in this treaty, contains a declaration and
admission of c.ongress of the rights of Indians in general;
arid . that the h;npre5sion wnich our enemies were endea­
VoL. V.-1
66 SUPREME COURT.
[The Cherokee Nation m. The Slate of Georgia.]
�ouring to· make, that it was the design of the states to
extirpate them and take their lands, was.false. And the same
recognition of their rights runs through all the treaties made
with the Indian nations pr tribes, from that day down to the
present"t1me.
The twelfth article of the treaty of Hopewell contains a full
recognition of the �vereign and independent character of the
Cherokee nation. To impress upon them full confidence in
the justice of the United States respecting their interest, 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
melJ}ber of congress; but that he would be received as the
agent of that nation. It is immaterial what su·ch agent is called,
whether minister, commissioner or deputy; he is to represent
his principal.
There could liavc been no fitness or propriety in any such
stipulation; if the Cherokee nation had been considered in
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 the 26th
December 1817, 6 Laws U. S. 706, the United States stipu­
late to give 640_acres of land to each head of any Indian fam­
ily 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.favo.ur of the heads of families;
who may choose to become citizens of the United States;
thereby clearly sho�ing that they were not considered citi­
zens at the time those stipulatiol)� were entered into, or the
provision would have been entirely unnecessary if not abaurd.
And if not citizens, . they must be aliens or foreigners, and
such must be. the character ·of each individual belonging to
the riation. 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 questi�n touching the citizenship of an Oneida Indian
cam,e under the consideration of the supreme court of N.ew
 JANUARY TERM i83I. 67

[The Cherokee Nation t,6, The State of Georgia.]

York in the case of Jaekaon vs. Goodel, 20 J-0hna. 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 offi­
cer in the revolutiona1•y war; and although the supre�e
eourt,. under the circumstances of the case, decided he was a
cititen, yet chief justice-Spencer observed; we do not mean
to say that the condition of· the Indian tribes {alluding to the
six nations), at former and remote periods, 'has-been ·that of.
subjects or citize�s of the state; their condition has been gra­
dually ehanging, until they have lost every attribute of sov­
ereignty., and become entirely dependent upon and subject ta
·our government. Bu.t 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 citi­
zenship of the Indian, even under the strong circumstances of
that case.
"The Oneidas," he observed, and "the tribes composing the
-six nations of Indians, were originally free and independent na­
tions, and it is for the counsel who contend· that they have now
-ceased to. be· a distinct people and become completely incor­
porated with us, to point out the time when that event took
place. In myview they have �ever been.regarded as citizens,
or members of our body politic. · They have always b�en,
and still- are, considered by our laws as dependent tribes, gov­
erned by their own usages and chiefs; but placed under our
.protection, -and subject to our coercion so far as the public safety
t"equired it, and no farther. TM whites have been gradually
pressing upon them, as they kept receding frpm the approaches
-of civilization. We have purchased the greater part of their
fonds, destroyed their hunting grounds, subdued the wilder­
ness around them, overwhelmed tliem with our population,
and gradually a:bridg-e!l their native independence. Still they
are permitted to exist as distinct nations, and we· continue ta
treat ,with their sachems in a national capacity, and as being
the lawful representatives of their tribes. Through the whole
course of onr colonial history, these Indians wer& considered
aependent allies. The colonial authorities uniformly ·nego­
tiated with them, ·and made and observed treaties with them
as sovereign communities exercising the right of ·free ddibe­
ration and action; but, in consideration of protection, owing
68 SUPREME COURT.
[The Cherokee Nation tis, The State of Georgia.]
a qti_alified subjection in a national capa:city 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
(?rown: such a fact is of frequent occurrence between inde,.
pendent nations. One community may' ·be bound to another
bya very unequal alliance, and still be a sovereign state. Vat.
B. 1, ch. 16, § 194. The Indians, though bprn .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 niuch less to extinguish .the national character
of the six nations, and consolidate them with· our own people.
Every public document speaks a diffei:ent, language, and ad­
mits their'distinct existence and competence as nations; but
placed in th� same . state of dependence, and calling for the
sanie protection whicl:i existed �efore the war: In the treaties
made with them we have the forms and requi!lites pecliliar to
the intercourse between friendly and independent states;. and
they are conformable to. the received institutes of the iaw of
nations. What more demonstrable proof can we· require of
exjsting and acknowledgea sovereignty.',.
If this be a just vie,v of the Oneida Indians, the rules and
p1lnciples here applied to that nation may with much- greater
force· be applii;d to the charact-er. state, and condition of the
Cherokee nation of Inqians; and we may snfely 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
natipn 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 con$ider 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 so:vereign. and. in­
dependent n_ations, haye treated this nation as ·s1:1ch, They
have c:onsidered it.competent, in its political and nationalcapa­
city; to enter into contracts of the most solemn characte,:; .and
if these contracts contain matter proper.for judicial inquiry,
 JA�UARY TERM 1831. 69
[The Cherokee Nation tif,, The State of Georgia,]
why-should we refuse to entertain jurisdiction of the case? Such
jurisdiction is expressly given to this court in cases arising un­
der treaties. If the executive department. does �ot think p r-0- ·
pe�· to enter into treaties or contFacts with the Indian nations, .
no case with them can,arise calling for judicial cognizance.
But when such treaties are found containing stipulations pro­
per (or judicial cogniza.nce, I am unable to. discover any rea­
so�s satisfying my mind that this .court has not jurisdiction of
the case•.
The next. inquiry is, whether such a case is made out in· �e
hill.as to warrant this court. in granting .any :,;elief?.
I have endeavoured to show that the Cherokee nation is a fo­
reign state; and;as·such, a com1>etent p:n-tyfo maintain an ori­
giri�l suit in this court against one of the United States. Tire in­
juries complained o� are violations committed and :threaten.ed
upon the'property of the complainants, secured to them by
the laws and treaties o,f-lhe United States. · Under the consti­
tution, the judicial power of the United States extends. ex- ·
pressly to all cases in law and .equity, arising under the laws
of the United States, and t_reaties 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 coristitution enables the
judicial department to receive jurisdiction to the full extent of
the constitution, laws, and treaties of the United States, w�en
any question respecting them shall assume such a form that the
judicial power is capable of acting on it. That power is capable
of acting only when the.subject is submitted to it by a party
who asserts his rights in the form presented by· law. It then
becomes a case, anti the constitution· authwises the application
of the judicial power.
The question presented in the present· case isj under the.
ordinary form of judicial proceedings, .to· obtain an injunction
to prevent or 13tay a. violation of the rig�ts of property clai:ipe-d
and held- by the complainants�.under the treaties and, laws of
the'United States; which, it is alleged, have been,vioiated by
the state,of. Georgia. Both the form, and the subject matter
of the .complaint,· therefore, fall ,pr�perly under judicial cog­
nizance.
What the rights· of property in the Cherokee nation are,
 70 SuPREME OOURT-
[The �herokee Nation 1'S, The State of Georgia,]
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 wilf 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 ihe s9il.
The complaint .is for a violation, or threatened violation,, of
the possessory right.. �nd this is a right, in the enjoyment
of wh_ich they are entitled to protection,· according · to the
doctrine. of this court in the cases of F.letcher. vs. Peck, 6
Cranch 87,.2 Peters's Cond .. Rep. 308, and.Jonnson vs-. M'In­
t<?sh, 8 Wheat. 59.2. -_By t}l:e fourth article of the treaty of
Hopewell, -as early as the year 1785, 1 Laws United States,
323, 'the boundar-y line between .the Cherokees and the· citi­
zens of the United States within the-limits of the United States
is fixed.
:The fifth article provides for the removal and punishme�t.of
-citizens_� of the Unitea 'States or other persons, not being In­
<lians, w4o shall attempt to settle on the. lands so allotted to
the Indians; thereby not only surrendering the exclusive poss­
ession of these lands to this nation, but I5r6viding for the pro­
tection and enjoyment of such possession. An(}, it may be
remarked; in corroboration of what has been said in ·a former
part of this opinion; that the.re is he;e drawn a marked line of
distinetion between the Indians and citizens of the United
States; entirely excluding the former· from the cbfil'acter 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 bc1undary line fas designated, and
provision made for having· it ascertained ·and marked. The
mere act of purchasing and paying a canaideration fop these
lands is a recognition of th.e Indiarr right. In addjtioo to
which, the United States, -hy the seventh article, solemnly
guaranty to the Cherokee nation all their lands ti.ot ceded by
that treaty. And by the eighth article it is de�iared, that.any
citizens of the United States, who shall settle upon any of the.
Cherokee lands, shall forfeit the protec.tion of the United States;
and the Cherokees may punish· them ol' not a,; they shall please.
 JANUARY TERM 1831. 71

[The Cherokee Nation 11s, The State of Georgia,]

This treaty was made soon after �he adoption of ·the pre­
sent constitution. And in the last article it ·is.declared that
it shall take effect, and be obligatory upon the contr�ting
parties as soon as the same shall have been ratified .. by t}ie
president of the United States; with �he advice· and cons�nt
of the senate; thereby showing the early opinion of 'the go­
vernment of the character of the Cherokee nation. The con­
tract is made by way of treaty, and to be ratified in the same
manner as all other treaties made with sovereign and in!le­
pendent nations; and which has been the mode of negotiating
in all subsequent Indian treaties.
And this course was adopted by president Washington upon
great consideration, by and with the previous advice and con­
currence of the senate. In _his message s.ent 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 en�sted to
him by the constitution to carry that treaty into faithful execu•
tion; unless a new boundary should be arranged with the Che-·
rokees, embracing the intrusive settlements, and compensat�
· ing the Cherokees therefor. And he puts to the senate this
question: shall the United States stipulate solemnly to guaran­
tee the new boundary which shall be arranged? Upon which·
the senate resolve, that in case a new, or other bounaary than
that stipulated by the treaty of Hopewell shall· be concluded.
with the Cherokee Indians, the senate do advise and consent
solemnly to guaranty the same: 1 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 'Onited States, for a considera­
tion paid therefor; and, as t�e treaties declare, in acknowledge­
ment for the protection of the United States-(see treaty of
1798, 1 Laws U. S. 332): the United States alway!! recog­
nizing, 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 proposi:­
lion 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 inde-
 72
[The Cherokee Nation 111) The State.llf Georgia.]
pendeut go,,_ernment, separate and di�tinct from :µid in no
nia.'nner whatey-er under :the. jurisdiction of the s�te' of Geor­
gia; an.d no objection is known to have been made by that state.
·. 4-nd', again, in· 1819 (6 Laws· U., S•.748), another treaty
� ma!ie sari?tioning and 'Carrying . into _effect the measures
.contemplated by tlie treaty of 1817; oegiQning with a: reci­
tal that "the greater part of the Cherokees· have expressed
an -em-nest desire to remain on this side of the Miiisissippi,
and being desirous, in order to c9mmenc� th9se measures which
they_ deem necessary to the -eivili_zation ·and preseryatioii of
their nation, that the treaty-.between·tbe United Stafes and
.them,· of the 8th of Jt,1ly .1817.,_ ,might witho�t further delay
be .finaUy·adjusted, ha� offered to make a f1,1rther cession of
-l�d, &c. This cession is .acce.fted, and Yari9us-s. tip1:1lations
entered into, with a vie.w·to·,therr civilization, and the.estab­
lishment of a regular govern��nt; which h!lS since ·been, ac­
complisned; 4-nd by .the £fth article ·it ·,is stipulated that· all
-white �opJe who have intruded, or who shall the!eafter in­
trude on the lands reser:ved for tlie·Ph�rokee� shall be removed
.by the Uniteq_ Stabi�,. a. rrd proceeded against according to the
provisiona of the act of 18()2,' entitled "An act to regulj1te
trade . and fnterc.oursc.witl_l the·Ind!an tribes, a'(ld to preserve
peace on the frontiers." S Laws U. -S. 460. By this act the
boundary lines, estab1i.shed by treaty with the Yarioulf Indian
tribes, ar,e required'to bP. ascertained.and IIJark1:d; and among
others, that with the Cherokee nation, according to the treaty
of the 2d or' October 1798;
. It may be µecess�ry here briefly-to .notice some of the-pro­
visions ·· of this· act of 1802,. so far as jt goes to protect' the
rights-of property .in the 'Indians; for the purpose of $eeing
whethE!r there has . been any· violation of those _rights by the
_state of'-G'eorgia, which falls· properly. u�der. j,ildicial cogni­
zance; =By. �his act it is made an offence punishable by fine and
imprisonmel!t, for any citizen or other, person resident in th,e
United State�; ox: either of the territo�ia� districts, to cross
over.or go within the· �oundary line, to hunt or. destroy the
gam_e, pr drive stuck to. range -or feed on the Indian lands, or
to go,into·any country allotted to the-Indians, without ·a pass­
port, or to ·commit thereip. any robbf;ry, larceny, trespass, or
other crime, against the person or property .of any frienc,lly
 JANUARY TERM 1831. 73
[The Cherokee Nation llS, The State of Georgia.]
Indian, which would. be punishable; if committed within the
jurisdiction of an:rstate against a citizen of the United States;
thereby necessarily implying that the Inqian territory secured
by treaty was· not within the jurisdiction of any state. The
act further provides, that when property is taken or de..
stroyed, the offender shall forfeit and pay twice the value of
the property so taken or destroyed. And by the fifth section
it is declared, that if any citizen of the United States, or other
person, shall make a settlement on any lands belonging or
secu.red, 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 other­
wise; such offender shall forfeit a sum not exceeding one-thou­
sand dollars, and suffer imprisonment not exceeding twelve
months.
This act contains various other provisions for the purpose of
protecting the Indians in the free and uninterrupted enjoyment
of their lands: and authority is given(§ 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; arid deliver them up to the civ,il au­
thority, 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 construc­
tion of the nineteenth section of this act, which declar�s that
nothing therein contained shall pe consti·ued to prevent any,:
trade or intercourse with the Indians living on lands surround­
ed by settlements of citizens of the United States, and being
within the ordinary jurisdiction of any of the individual
states. It is understood that fhe state of Georgia contends
that the Cherokee nation -come within this section, and are
subject to the jurisdiction of that 'ltate. Such a construMion
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 th1.se trea­
ties, which 'are i.n full force, the United St.ates solemnly guar­
anty to the Cherokee nation all their lanus not ceded to the
United States; and these lands lie within the chartered limits
of Georgia: and this was a subsisting guarantee under the
VoL. V.-K
 74 SUPREME COURT.
[The Cherokee Nation V6. The State of: Georgia.]
treaty of 1791, wheretJ1e act of 1802 was passed. It would
require the niost unequivocal language to attthorise a construc­
tion so directly repugnant to these treaties.
But this section admits of a plain and obvious intcrpreta-
1tion, consistent with other parts of the act, and in harmony
with these treaties.. The reference undoubtedly is to that
clas� of Indians which has already been referred to, consisting
of the mere remnants of tribes, which have become almost ex­
tinct; and who have, in ·a great measure, lost their original
character, and abandoned their usages and customs, and be­
come subject to the lQ.ws of the state, altho�gh in many parts
of the country living together, and surrounded by the whites.
They cannot be said t� have any.\listinct government of their
own, and az:e within the ordinary jurisdiction and government
of the state where they are located.
But such was not the condition and character of the Chero­
kee n_ation,in any respect whatever, in the year 1802, or at
_any time -sin_c�. It was a numerous, and distinct nation, liv­
ing.under-the government ·of their own laws, usages, and cus­
toms, and in no sense under the ordinary jurisdiction of -the
state of Georgia;but under the, prote�tioh of the United States,
with-� solemn guarantee by treaty of the exclusive right to
th� possession, of their lands. This guarantee is to the Che­
rokees in their national capacity. Their land is held in com­
mon, and every invasion of their possessory right is an injury
clone to the nation, and n-9t to any individual. No private or
indiyidual suit could be sustained: the injury done being to
the nation, the re.medy sought must be in the name of the na­
tion. · All the rights secui:ed"to these I1;1djans, under any trea­
ties made with them, remain unimpaired. These treaties are
acknowledged by the United States to be in full force, by thf:
p:J?Oviso to the seventh section of the act of the 28th May
1830; which declares, that nothing in this act contained shall
be construed as authorising or directing the violation of
any existing treaty between the United States and any Indian
tribes.
That the Cherokee nation of Indians have, by virtue of these
'treaties, an exclusive right of occupancy of the lands in ques­
tion, and that the United States are bound under their guar­
antee, to protect the natfon in the enjoyment of such occu-
 JANUARY TERM 1831. 75
[The Cherokee Nation vs. The-State of Georgia.]
11ancy; cannot,. in my judgment, admit.of· a doubt: and that
'Some of the laws of Georgia set out in the_ bill are in violation
of, a,nd in conflict with those treaties and the act of ISO�, is
to my :qiin,I equally clear. J3ut a majority of the c_:ourt hav�
ing 'refused the injunction, 60 that, no relief "whatevei; can be
granted, it would be a fruitless inquiry for me to go at large
into an exa;mination 10f the extent � which 'relief might be
granted by this cour.t, according to. my own view of th� case.
I certainly, -as before observed, do not claim, as belonging
to the judiciary, the exercise of political p_ower. TI!at b�longs
to another branch. of the go:vernment. "The protection --and en­
forcement of many rights, secured by tr.�t�es, most certainly
do not belong to the judiciary. I� is· only _where fhe rights_ of
persons or property are involved, -and when such rights· can
be presented under som.e jm;licial form- of: proceedings, th;i.t
courts of justice can interpose relief. .· ·
This court ca.n have no right to pronounce an abstract. opi­
nion. upon the- constitutionality9f a state law. Suell law must
,be brought into actu;tl o·r thi:eatened operation, upon-.rights
properly falling under judicial cognizance, or a remenv is .not
to be had here..
The laws of Georgia ge( out in the,'bill, if carried .fully 'into
operation, go the length,of abrogating.all tne faw_s of the Che­
rokees, abolishing their• government, and entirely subverting
the�r national $aracter. Although,_ the whole of these laws

the
may. be in violation of the treaties.made with 'this nation, it is
probable this court cannot.grant reiiefto fqll e:x:tent·of ·the
-complaint. Some of them; however, are so directly at vari­
ance with these .treaties and the laws of the United States;
touching the rights of .propel'ty secured to :them,-.that. i can
perceive no objection to the application of jqdi�i� l"eli�f. ·The
state of Georgia certainly could nQt' have inten�ed th�se-laws
as declarations of hostility, or wish tl!eir execution ·or them \o·
be viewed in:anr, manner whateyer as acts O! war; bu_t·merely
as an assertion of what is claim� as a legal i·ight: and in_'this
light ought they to be considered .by this courL
The- act of the.2d·of December, 1830 is entitled "a(! act to
a.uthorize the governor to take poss�ssion pf the gold and silyer
and other mines· lying and being in that section .of the char­
tered limits of Ge�rgia, commonly called the Cherokee coun-
 76 SUPREME COURT.
[The Cherokee Nation vs. Tlie State of Georgia.]
try, and those upon all other unappropriated lands of the
state, and for punishing·persons who may be found trespassing
1;m the mines." The preamble to this act asserts the title to
these mines to belong to-the state of Georgia; and by its pro­
visions twenty thousand dollars are appropriated, and placed at
the disposal of the governor to enable him to take possession of
those mines; and it is made a crime, punishable by imprisonment
in the penitentiary of Georgia at hard labour, 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 w!'lo are employed
in restrainjng the complainants in their rights and 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 oftrespass; and may be treated as ac:ts of the
state; and not of the individuals employed as the agents.
Whoever authorises or commands an act to be done may be
considered a principal, and held responsible, ifhe can be made
a party to a suit: a_s the state of Georgia may undoub_tedly
be. It is not perceived on what ground the state can claim
a right to the possession and use of iihes!:l 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 by the compact with Georgia of 1802, the United
States have stipulated, to e:xtin·guish, for the use of the state,
tbe Indian title to the lands within 1,ier 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 subsist-
. ing Indian right: arid. which may never be extinguished.
The United States.have not stipulated to extinguish it, until
it can be done "peaceably and upol1 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 stipu­
lated 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 act of the ·21st December 1830, surveyors
 JANUARY TERM 183L 77
[The Cherok�e Nation"'· The Stale of Georgia,]
are authorized to be appointed to enter upon the Ch�okee
territory and lay it off into districts and sections, which are
to be distributed by lottery among the people of Georgia; re­
serving to the Indians only the present_ occupancy of such
improvements as the individuals of their nation may now be
residing on, with the lots on which such improvements may
21tand, and even excepting from such reservation improvements
recently made near the gold mines
This is not only repugnant fo the treatie·s with the Chero­
kees, but directly in violation of the act of congr(jSS of 1802;
the fifth section of which makes it ai:i, offence punishable with
fine and imprisonment, to survey or attempt to survey o·r desig­
nate any of the boundarie&, by mark,ing trees or otherwise, of
any land belonging to or secured by treaty to any Indian tribe:
in the face of which, the law of. Georgia authorises the entry'
upon, taking p·ossession of, and surveying, and distributing by
lottery, these lands guarantied by treaty to the Cherokee
nation; and even gives autho:r:ity to the governor to call out
the military force, to protect the ·surveyors in-the discharge of
the duty assigned them.
These instances are sufficient to show a direct, _and palpable
infringement of the rights of property secured lo the com­
plainants 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 S1Jpreme law of the land:_ it follows,
V
as matter of cour.se, 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 doc­
trine and practice of courts of equity.
According to the view which I have aiready taken of
the case, I must consider the question of right as settled in
favour of the complainants. This right rests upon the laws
of the United States, and treaties ·ma<le with the Cherokee
nation. The construction of these laws and treaties are Pl!!1l_
questions of law, antl for the decision of the court. There are
no grounds, therefore, upon whic� it can be necessary to send
the cause for a trial at law of the right, before a�arding an in­
junction; and the simple question is, whether sµch a c:rs-e is
made out by the bill, as to authorize the granting an injunction.
 18 SUPREME COURT.
[The Cherokee Nation"'· The State of Georgia.]

'!'pis is a. pr_ohibitory writ, to restrain a party from doing a

W'l'ongor injurytotlie rights of another. It is a beneficial pro­
eess; for· the protection of rights; and is favourably viewed ·by
,cou.rtsl>f chancery; as its object is to prevent-rather than redress
injuries; �nd has latterly been more liberally awarded than
formerly. 7:Ves. Jun. S07.
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 �hr.eatening''a total destruction of
all their rig�ts. And although it is not according to the
course·of chancery, to grant injunctions to prevent trespaS1Jes
when there is a clear and adeguate remedy at law, yet it
.will be done when- the case is special and peeuliar, and when
no adequate r.emedy (}att be had at law, and pru;ticularly When·
the injul.'y threatens4'reparable ruin. 6 Ves, 147. 7 Eden,
S07.' Every man is entitle.d to be protected in the possession
and enjoyment of his property; and the orainary remedy by
action- of trespass may generally be sufficient to afford such
protection. But, where from the peculiar nature and circum­
stances of the case, this is not an adequate protection, it is a fit
case .to interp·ose the preventive proce� of ,injunctipn: This
is Hi� -principJe running through all the cll,Ses on this subject,
and is. fouµded .upon the most wise and just considerations;
and th.is. is peculiarly such .11 c_ase. Tlie complru.nt is not of a
mere private trespass; admitting of compensation in damages;
but ofinjnr�s which.go to)he.total destruction of the whole
right of: the _complainants. 'l'he mischief threatened· is great
and irreparable . 7· Jdhns, Cha. 330:. It is one of the most
beneficial ·powers or' a court of equity to i�terpose and prevent
an injliry,._b�fore .any has ;i.ctually been suff�red; and this is
done by a. bill,-wh'ich is sometimes'l!-alled a bill quia timet. Mit-
for.ci,.' �20.
The· doctrine of this. court-in the case:of Osbornd vs. The
Uni�ed States· Bank, 9 Wheat. 3S8,. fully sustains 'the · pre­
. se!l� application-for ail"injunction. The bill in that case was
· filed to obtain ap. inJ�nction against the au,,ditor of the state of
Ohio�· to restrain him from executing'a law of that state, which
was alle�(\ to be to the great injury. of the bl!nk,_and to the
destr�ctioil of, rights copferred by tlleir _charter. ··The only.
 JANUARY TERM· 1881. 79
[T}ie Cherokee Nalion vs. The State of Georgia.)
question af doubt entertained by the court in thilt case Wffll, as
to issuing an injunction �ainst an officer of the state to r�strain
him from doing an official act enjoined by statute, the state
not being made a party. But even this was no"faeemed suf­
ficient 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 pri­
vileges: and they say, if the state could have been made a
!')arty defendant, it would scarcely 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 tJie bank
from a common and casual trespass of an i11dividual, but from
a total destx:uction of its franchise, of its 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 amend­
ment of the constitution; the complainants being mere indivi-·
duals 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 i,n that.
It forms no objection to the issuing of the injun�tion in this
case, that the lands in question do not lie within the jurisdic­
tion of this court. The writ does not operate in rem, budn
personaiu. If the party is within the ju,risdiction of the court,
it is all that is necessary tQgive full effect and operation 'to the
injunction; and it is immaterial where the subjeci 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 gener?l rule is
laid down, that in a case of fraud of trust or of contract,
the j.arisdiction of a court of chancery is sustainable, wherever
the person �ay be found, although lands not within the juris­
diction 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, 1 V.es. 444, a specific .performance of a con-
80 SUPREME COURT.
[TI1e Cherokee Nation tis, The Stale of Georgia.]
tract 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,
I. That the Cherokees compose a foreign state within the
sense and meaning of the constitution, and constitute a com­
petent 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 Cherc,"itee nation, and which
laws and treaties have been, and are threatened to be still fur­
ther violated by the laws of tlie state of Georgia referred to in
this opinion.
3. That an injunction is a fit and proper writ to be issued,
to pr.event the further execution of such laws, and ought there-.
fore to be awarded •.
And I am authorised by my brother Story to say, that he
concurs with me in this opinion.