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nizance; that it would necessarily be political or diplomatic, and not judicial. But a question with a state could not be of that description, because a state could have no political or diplomatic relations. Const. Art. 1, Sect. 10. It was no more diplomatic than if it were the case of an individual complainant. The questions might be precisely the same. Its being the case of a state, defendant, could make no difference, for this court entertained jurisdiction in equity of controversies between states, as in the pending case between New Jersey and New York. As to the parties, there could be no doubt.
2. Was there a subject matter, proper for judicial decision? That must depend upon the nature of the right which was asserted, and the nature of the wrong which was inflicted or meditated. As to the rights of the complainants, as they were here asserted, they might be considered for the present purpose as founded entirely upon the laws of the United States; that is, upon treaties and upon acts of congress, which were of equal authority. These rights were judicially known to the court as part and parcel of the laws of the United States.
It was not necessary to go out of those laws for the purpose of investigating them. They were not obliged now to explore the original grounds of right, nor to question the European principle of discovery.
Such as they appeared upon the statute book the complainants were willing to consider them; and they asked nothing more than to have them enforced as they there appeared.
of these rights the Cherokees were in actual possession; with the knowledge and acquiescence of all the authorities of the United States. There was no dispute between them. Their claim was only to be protected from disturbance or interference with their established rights; and they claimed it against those who were subject to the authority of the laws of the United States and within
their jurisdiction, but did not profess to derive any sanction for their conduct from the United States.
These rights, it was further to be remarked, were such, that in a suit between the citizens of the United States, they would undoubtedly be within the jurisdiction of the laws of the United States. What are they? The treaty of July 1817 (art. 5) continued in force all former treaties. The treaty of February 1819, was only a final adjustment of the former. All the guarantees of former treaties are therefore in full force.
1. The first of the rights admitted, and professed to be guarantied and secured to them, was the right, within their own boundary, of self government. Their political power is abridged by their own concesssions, and so is their right of property by conditions annexed to it. But the right to regulate their own civil condition within their own limits, to make and to execute their own laws, is exclusive and absolute. It is extended expressly by treaty, as well as by the intercourse act, to persons going amongst them. This is the plain import of all the treaties, as well as of the intercourse act. In the treaties, means are employed for civilizing them, but they are proposed in the way of advice and assistance, and not in the way of authority or command. See particularly Art. 14, treaty of 1791 ; Art. 2, treaty of 1806; preamble of treaty of 1817, and Art. 8 of same.
2. The next was the right of property, modified, but still exclusive and absolute against all interference. The mode of enjoying it was left to themselves. Whatever it might be, it resolved itself into individual enjoyment as to its end and purpose. As against the United States and their citizens, this right was sacred and incontestible. It was acknowledged in every variety of way. The boundaries were fixed by treaty, and what was within them was acknowledged to be the land of the Cherokees. This was the scope of all the treaties. Treaty of Hopewell, ,
Art. 4. Treaty of Holston, Art. 7, &c. The United States would not even assume the right of passage without their consent, and when it was granted, it was by treaty in a limited way, by a particular road. Treaty of Hol. ston, Art. 5. Treaty of 1795, Art. 7. They stipulate against intrusions, abandoning intruders to the laws and tribunals of the Cherokees. Treaty of Hopewell, Art. 5. Treaty of Holston, Art. 8. They stipulate also for protection. Treaty of 1798, Art 4.
It was unnecessary for this purpose to go more fully into those treaties. They spoke one language throughout, and that was, that the Cherokees were entitled to the occupation and enjoyment of their land without intrusion or interference. The same language was spoken by the intercourse act. Indeed, he might add, that as yet, it was not disputed by any act or declaration of the United States through any official organ authorized to do or to speak on the subject. These rights were absolutely, unquestioned, and the obligation to protect them was in full force. The United States had never by any competent authority disčlaimed it. They do not disclaim it now. The solemn guarantee advised by the senate in 1790, and given by the executive, with the advice of the senate, in the year 1791, is as fresh in its claim upon the public faith as the day when the treaty was signed. It is true that the stipulated protection is not afforded ; but the congress of the United States have never denied the right to claim, or the obligation to afford it.
3. What are the wrongs they complain of ?
The violation of these rights, to the extent of their total destruction and extinction. The legislation of Georgia proposes to annihilate them, as its very end and aim ; the acts already done under it are in furtherance of that purpose, and those which are further' menaced will be its consummation. The laws of Georgia profess no other ob
ject; they are effectually conceived for this. If those laws be fully executed, there will be no Cherokee boundary, no Cherokee nation, no. Cherokee lands, no Cherokee treaties, no laws of the United States in the case. They will all be swept out of existence together, leaving nothing but the monuments in our history of the enormous injustice that has been practised towards a friendly nation.
These laws of Georgia operate upon the individual Cherokees as well as upon the nation. They are virtually made outlaws, neither citizens nor aliens, nor competent to be witnesses in courts of justice. They operate also upon their property, and upon the rights and privileges declared for them by the laws of the United States.
Is not this, then, a case or controversy of judicial cognizance? The bill sets forth a number of individual instances of the exercise of the unjust authority. Would they not, upon the complaint of individuals, be the subject of judicial cognizance? Would not the questions to be presented, discussed, and decided, be precisely as they now are? As questions of property, as personal privileges, or as corporate privileges, they are matters of judgment purely and strictly, without any admixture whatever of political or diplomatic considerations, and they have become a case, or subject of a suit, by the actual perpetration of injury and the menace of its repetition. They are questions upon the laws of the United States, in suits against citizens of the United States; and if it be necessary still further to examine the ground of complaint, it will be found that it is one of every day judicial cognizance, namely, that the laws of Georgia are unconstitutional and void.
Is not the character of the aggregate the same as that of the particulars of which it is composed ? Is there any thing in the process of aggregation to alter it? The constitution of the United States gives no colour to
such a distinction. It applies the same description of case or controversy to bodies and to individuals. Judicial decisions gives it no countenance, but the contrary. Jurisdiction is entertained of suits between states, as in the instance now pending. In the case between states, there must always be individual interests involved with those of the state. Jurisdiction is entertained of suits by corporate bodies. Osbourn vs. Bank of the United States, 9 Whea.ton, 739.
To what forum (of those belonging to the United States) the resort is to be had, depends upon the partics. The federal jurisdiction depends upon the nature of the case or question. If that be such, that it might be here by an individual, under the twenty-fifth section of the judiciary act, ' by appeal; it may be brought here originally by a state.
It might be that, in fact, the present was the only mode in which the protection of the United States judiciary could be obtained, or in which it could be called upon to vindicate the majesty of the laws and treaties. The nature of the Cherokee institutions and polity, as to the tenure of land, presented a difficulty on the one, side. The determination of the authorities and tribunals of the state of Georgia not to permit a suit to reach a stage where a writ of error could be made available, . was at present an insuperable difficulty on the other. If redress could not be afforded in the mode now proposed, they might all, like Tassels, suffer final and irreparable infliction wbile waiting for the time of hearing before this court.
The complainants, then, come here upon the ground of the violation of a legal right, and that, he submitted, was a case or controversy. They do not present an abstract question. They do not present a political question. They do not come to demand in general terms the fulfilment of a treaty, nor to ask this court