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appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make.”
The first of these clauses specifies by classification, the cases to which the judicial power of the United States shall extend, comprehending such as from the nature of the subject matter, or from the character of the parties, were proper for that jurisdiction. The second distributes the authority given by the first, among the courts of the union, assigning to cases of national jurisdiction their appropriate forum. It is subordinate to, and in execution of the former.
There can be no doubt, that under this article all cases arising under treaties” are cases cognizable by the judiciary of the United States. They are within the very words of the article. The reason for including them is obvious, and entirely conclusive. Treaties are declared to be “ The supreme law of the land.” Article 6, section 2. They are placed, in this respect, upon the same footing with the constitution of the United States and acts of congress. As acts of national law, it was equally essential that the national power should be adequate to their construction and their execution, by its own exertion, without dependence upon any other authority, and with that uniformity which could only be secured by a supreme judicial tribunal. As acts of national faith, binding upon the honour, and involving the relations and peace of the whole nation, they had even a stronger claim to the cognizance of the national judiciary. That they are entitled to it, in some of the courts of the union, is not to be denied or disputed. The jurisdiction of this court, in its original or its appellate exercise, as certainly extends to them under the constitution.
The original jurisdiction of the supreme court, so far as concerns the present question, depends upon the fact
that a state, that is, a state of this union, is a party. It matters not who may be the other party. The dignity of a state entitles the case in which it is a party, to the jurisdiction of the highest tribunal. Chisholm's Ex. vs. State of Georgia, 2 Dall. 419. State of Georgia vs. Brailsford, 2 Dall. 402, 415.
The eleventh amendment of the constitution does not operate, in terms, upon the original jurisdiction: but upon the judicial power of the United States, in certain cases. “The judicial power of the United States shall not be construed to extend to any case in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. Its operation upon the original jurisdiction of the supreme court is only consequential, by excluding altogether from the cognizance of the federal judiciary, certain cases assigned to it by the first clause of the original article, and which in the distribution of the second clause had been made subjects of that original jurisdiction.
This amendment operates by way of limitation or exception. It applies only to the excepted cases, leaving the jurisdiction and the power, in all other cases, exactly as they stood under the original article. What are the cases specified as exceptions ? They are very plainly and distinctly defined, suits against any one of the United States “by citizens of another state, or by citizens or subjects of any foreign state.” With this exception, which is too plainly expressed to admit of doubt or construction, the whole of the third article remains in full force, and the jurisdictions created by it, as to their extent and distribution, are unaltered. The original jurisdiction of this court, therefore, still exists, wherever it existed before, unless it be in the case of a suit commenced against a state of the union “ by citizens of another state, or by citizens
or subjects of a foreign state.” It is in full force where a “foreign state” is one party, and a "state" of this union is the other party, or where two states are parties. Cohens vs. Virginia, 6 Wheat. 264.
It has sometimes been intimated that the Cherokees are neither citizens of any state," nor citizens or subjects of any foreign state." Supposing for a moment that this imperfect view were correct, what would be the legal, or rather the constitutional result of it? The limitation or exception would not apply to them; and (a state being a party) they would have a right to sue in this court, unless, indeed, it were further alleged that they were some how put out of the protection of the law, and incapacitated to sue at all, which, it is believed, has never been suggested. The matter would stand thus: the case arises under a treaty, and is therefore cognizable by the courts of the union. A "state" is a party. The jurisdiction, then, among the courts of the union, belongs to the supreme court, being given to that tribunal by the constitution as originally made, and not taken away by the amendment. Such would be the result of that argument.
That question, it was admitted, did not arise here; and it was adverted to, only for the light thrown by it upon the case that was under discussion. The amendment, it was known from its history, was intended to prevent suits against "states" by individuals. Cohens vs. Virginia, 6 Wheaton, 406, 407. The description was meant to embrace all individuals who might sue. How are they describ ed? By a classification understood to embrace them all; “ citizens of another state” (of the union) " or citizens or subjects of any foreign state : clearly showing that all who were not citizens of a state, must be in the meaning of the constitution, citizens or subjects of a foreign state.
The Cherokees, in this case, approach the court, not individually, but in their aggregate capacity, as "the Cherokee nation of Indians, a foreign state." The proposition asserted on their behalf is, that they are “a foreign state,” with all the rights and attributes predicated of them in their bill of complaint.
In what manner is this inquiry to be judicially pursued ? What lights are to be followed? What constitutes the judicial evidence of the existence of a foreign state, as such ? Fortunately, we are furnished with an answer to these questions by settled and authorative decisions, of this, the highest tribunal in the land. As to new states arising in the revolutions of the world, it is the exclusive right of governments to acknowledge them; and until such recognition by our own government, or by the government of the empire to which such new state previously belonged, courts of justice are bound to consider the ancient state of things as remaining unchanged. Rose vs. Himeley, 4 Cranch, 292. Gelston vs. Hoyt, 3 Wheat. 324. United States. vs. Palmer, 3 Wheat. 634. Divina Pastora, 4 Wheat. 63, and note to 65.
In matters of judgment, the ancient state, whatever it was, continues, until it is changed by a competent authority: and of that ancient state, of the changes, if any, it has undergone, the time of those changes, or its continuance to the present time, the acts of our government are authentic and decisive evidence.
Of these acts, establishing judicially the existence and character of other states and nations, the most unequivocal and conclusive must be a treaty. It is the act of the nation ; in its nature, deliberate and solemn; in its obligation, most sacred; and, besides its efficacy as a national compact binding the national faith and honour, it is made obligatory upon individuals, upon authorities and upon tribunals, by the constitutional declaration that it is "the supreme law of the land.”
This principle being settled, as it must certainly be conceded to be, how does it apply to the present inquiry?
From the beginning of the existence of the United States as a nation to the present time, there have been no less than fourteen public treaties made with the Cherokee nation of Indians; one under the articles of confederation, and thirteen under the constitution; all of them with the solemnities that belong to public national compacts made between independent states or nations.
The first of these treaties was made as long ago as the year 1785; and the last as recently as the year 1819.
These treaties are at the present moment in full force ; and on the face of them they bear, that on the one side they are made by the United States, on the other, by the Cherokee nation.
In inquiring, judicially, into the fact, the first remark that presents itself is, that the aggregate existence of the Cherokees, with capacity to enter into binding national compacts, is ipso facto admitted. How can this be, if they are not a nation or state? They act by public agents, few in number, representing the aggregate or community, and binding all the individuals of which that community is composed, in the same manner as the public agents of the United States, on the other side, contract for the whole people of the United States. How could this be, if there were not such a community or state ?
But it is not by the inference only (irresistible as it is) that the fact is established. It is asserted in terms in every treaty, from the first to the last. The treaty of the 28th November 1785 expressly styles them a “pation.” Sect. 6. In the succeeding treaties, the same description is applied in almost every line, as any one who will be at the trouble to examine them will perceive. See particularly the preamble of the treaty of Holston, Art. 1, and the treaty of Washington in 1819.