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The subjects, too, of these treaties are unequivocally of national character and concernment: war; peace; exchange of prisoners; national limits; mutual rights, which nations only could claim or enjoy; and mutual duties, which nations only could fulfil.
The obligations are national; the sanctions are national; the breach is national; and the impress of national character, as belonging to the Cherokee Indians, is thus deeply and inseparably fixed upon the treaties in every variety of way,
and with them transferred to our statute book as a part of the " supreme law of the land.” Whatever others may say, so long as these treaties remain in force, the Cherokee Indians are, by our laws, a state or nation.
It was not now a question, what the United States might heretofore have done, or what they may do hereafter. That belonged properly to another head of inquiry. The present purpose was only to inquire judicially into the fact as now existing, according to the established principle already stated.
Following the rule of interpretation, or rather, of evidence thus established, were not the Cherokee Indians a “foreign state," within the meaning of the constitution? It would be sufficient to answer, that they certainly are not a state of this union. What then can they be but a foreign state? The constitution knows of but two descriptions of states, domestic and foreign. Those which are not included in the former class must necessarily fall into the latter. Nothing can be clearer than this; following either the language or the meaning of the constitution. There is no third description in that instrument; and there is no case of a state, which was not intended to be within the scope of its judicial authority, whenever circumstances might make it a duty to ourselves or to others to interpose its exercise. It is true that the Cherokee nation have no part or right in the constitution of the United States, because they are a
foreign state, and that constitution is the compact only of the states and citizens of this union. But there is a power given by the constitution which they may invoke when they have a demand of justice; a power conferred upon the authorities of the union, and in its nature conclusive. What reason can be given why it should not equally extend to them as to all other states.
The constitution itself created no new state of things. It operated upon a state then existing, and of very long standing. From the first settlement of the country by Europeans, the Cherokees existed as an independent nation. They never became incorporated with the European settlers, nor subjected by them. It is only by one of these modes, or by utter extinction, that they could cease to exist as a nation. Such as they were at the first, such they have continued to be, and such they now are. If any change has ever taken place in their condition, and especially one so material as to destroy their independent national character, it is for those who assert it to show when, and how, this great change was effected. The history of the case is in this respect the law of the case. In what part of their history is it to be found? The European claim of discovery never asserted their subjection or extinguishment as its consequence. It asserted nothing in respect to them. It only fixed the limits of the pretensions of different European states or sovereigns between themselves; cach maintaining an exclusive right to what he had discovered, and within his discovery to deal with the natives according to his own will, without interference by the others. The conduct of one was no rule or law to his neighbour, except as it evidenced the common consent to abstain from interference. Each was the absolute master of his own conduct, and made the law for himself within his own limits. If he had strength enough to do so, he made the law for the native inhabitants
according to his own will and pleasure, with more deference to the suggestions of his own passions and appetites than to the dictates of justice or of mercy. In some portions of the discovered hemisphere they were hunted with blood hounds and exterminated. Whole races of men have long since disappeared from the face of the earth which they occupied. In others, their soil was forcibly seized by the invaders, and the native inhabitants became the slaves of their conquerors. Where these things happened, nations, of course, ceased to exist. Such was, then, the stern policy of the discoverer. But that is not our case.
He would not enter now into a discussion of the abstract question of right as it stood between the European discoverers and the native inhabitants, nor attempt to set up here, on behalf of the latter, rights which (however they might have stood upon original grounds) were now to be no otherwise considered in a judicial tribunal, than as they had been settled by a long course of time and practice, and by judicial decisions, including a decision of this court, to which he should hereafter refer. He was satisfied to take the matter as he found it; to disturb nothing that was past or settled, but to inquire simply into the fact, as it was when the constitution was made, and as it still is.
With this view he proceeded to state, that the claim of Great Britain never asserted the incorporation or subjection of the native inhabitants within her discovery, nor the extinguishment of their national existence and character. It was always a limited claim, and left to them all beyond its limits. See Johnson vs. M'Intosh, 8 Wheat. 543. With the exception of this limited claim, and what has since been yielded by treaty, the Cherokee nation of Indians is the same nation now, that it was when the soil of their country was first pressed by the foot of an European. They occupy this moment a portion of the very territory
which then acknowledged their authority. Successive revolutions have changed the parties on the other side ; but each in succession has claimed the rights and acknowledged the obligations of its predecessors. The acknowledgment has never been questioned of their existence as an independent foreign state ; on the contrary, it has been continually, habitually, and uninterruptedly repeated and confirmed, so that from the beginning to the present day there is one uniform current of authentic testimony, without the slightest semblance of contradiction.
Thus, the constitution of the United States found the Cherokee nation at its establishment-a state, not of the union, and yet a state. What could it be but a foreign state?
It is not necessary, for the present purpose, to go back to the numberless treaties made with the Cherokees before the revolution. By whomsoever made, they were uniform in their admission, express and implied. History, too, is uniform, in attesting their existence as a foreign state, composed of foreigners, owing no allegiance to the crown of England, to the colony, to the state, or to the union.
When the confederation of these states was formed, where was this subject arranged ? Among the foreign subjects which were of national concern, and to be dealt with and managed by the national power. There could have been no doubt; for if there had been, that jealousy which yielded nothing but to the most evident necessity, and even withheld much which a short experience proved to be indispensable; would not have conceded this. But it was conceded. Congress had the power of “entering into treaties and alliances."
They had the power also of “regulating the trade and managing all the affairs of the Indians.” Under these powers the treaty of Hopewell was made in the year 1785,
between the United States on the one side and the Cherokee Indians on the other, and mutual faith was solemnly pledged betiveen parties admitted to be competent to contract as ratiors.
This was the state of things when the constitution of the United States was formed to establish a more perfect union. Can any thing be stronger to fix the construction of that instrument upon the point in question ? A treaty with the Cherokee Indians, made under the authority of congress, within two years only from the time when the convention completed its labours, was already in the statute book, and was one of the treaties “made" which that constitution declared should be the “supreme law of the land,” attesting the existence of the nation, as a foreign state, and its competency in that capacity, though within the limits of a state or states of this union, to contract with the United States. Besides its other sanctions—sufficient if public faith be regarded—this treaty has the sanction, in a peculiar manner, of the constitution itself.
Nor had this state of things arisen from haste and inconsiderateness, or the want of due deliberation. Even before the confederation was formed, congress had assumed and exercised authority over this subject, as one which naturally belonged to them. (Journals of 13th July, and 16th December, 1775: January 27th, March 8th, April 10th, 29th, May 27th, June 11th, 1776 ; August 19th, September 19th, December 7th, 1776.) In the last mentioned year (1776) they made war upon the Cherokees for committing hostilities on South Carolina. (Journals, December, 2d, 1777.) They distinctly asserted the power of war and peace towards the Indians, and denied it to the States. (Journals, 5th March 1779.) In 1781 they sanctioned a negotiation for peace with the Cherokees. (Journals, 1st November, 1781.) From this negotiation, proceeded the treaty of Hopewell (1785),