gaged to do so, and have received the equivalent for their engagement.

Judicial decisions, in accordance with this view, are not wanting. In Johnson vs. M'Intosh, 8 Wheat. 543, the Chief Justice, in delivering the opinion of this court, assumes the existence of the Indian nations as states, by ascribing to them powers, and capacities and rights, which belong only to that character. In page 592, is the following passage. "Another view has been taken of this question, which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual, might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws and usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them by a title dependent on their laws. The grant derives its efficacy from their will: and, if they choose to resume it, and make a different disposition of the land, the courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians within their territory, incorporates himself with them, so far as respects the property purchased; holds his title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding." Their sovereign power within their own territory; their authority to make, to administer, and to execute their own laws; to give titles and to resume them, to do, in short, what states or nations only can do; are here distinctly admitted.

In Goodell vs. Jackson, in the court of errors in New York, the question was discussed as to the character of

the individuals composing the Indian nations. They were decided to be aliens. If the subjects of a state be aliens, the state itself must be an alien state, a foreign state.

In Holland vs. Pack, Peck's Reports, 151, the very question was directly presented and directly decided by the court of appeals of Tennessee in the year 1823. It was an action brought against a Cherokee innkeeper, residing in that part of the nation which lies within the limits of the state of Tennessee, for the loss of the goods of a guest. The question presented by the pleadings was, by what law the case was to be governed, the law of Tennessee or the law of the Cherokees. The court decided that the latter was to govern. In the opinion, which is full and elaborate, the whole subject is examined; and the conclusion pronounced by the court is, that the Cherokees are an independent nation, with the exclusive power of legislation within their own territory.

This point, of the national character of the Cherokee Indians, is put to rest by two of the treaties, in terms which admit neither of doubt or controversy. The treaty of the 8th July, 1817 (Art. 8) makes a provision for securing certain reserves of land to those of the Cherokees who might choose to become citizens of the United States. This provision is referred to and adopted by the treaty of 1819, article 2. It is too obvious to require a remark, that this stipulation necessarily characterises them as aliens, then in a state of alienage, or of allegiance to a foreign state, but capable of becoming citizens of the United States at their own election, and until that election should so incline them, of remaining in the condition in which they then were. How were they to become citizens? It could only be upon the terms prescribed by the naturalization laws of the United States, of renouncing their foreign allegiance. How could they renounce it if none such existed? It may not be amiss to add, that this

provision applied to individuals and to reserves of land within the limits of states of this union. A list of them is appended to the treaty of 1819, with a description of their locality. It will be there found that the greater part of them were within the limits of the states.

This review, upon the principles heretofore adopted in judgment, would seem to be sufficient of itself for a court sitting under the constitution and laws of the United States. But wherever the inquiry may be pursued the result will be the same. The Cherokee nation is a state. It has "its affairs and interests; it deliberates and takes resolutions in common; and becomes a moral person, having an understanding and a will, peculiar to itself; and is susceptible of obligations and laws." This is the very definition of a state, according to the most approved writers on public law. Grotius, b. 1, c. 1, §. 14. B. 3, c. 3, §. 2. Burlamaqui, vol. 2, p, 1, c. 4, §. 9. Vattel, b. 1, c. 1. It is a foreign state, for it is not a state of this union. It is no part of our body politic. The Cherokees have no influence in our affairs, and no control over our conduct; and we have none in theirs, save what is given by treaty, and that is by mutual stipulation between the entire bodies politic, in their aggregate capacity, as equal contracting parties.

It is no objection to this that they are inferior or dependent allies. A state is still a state, though it may not be of the highest grade, or even though it may have surrendered some of the powers of sovereignty (Vattel, b. 1, c. 1, § 5 and 6): as a man is still a man, though mutilated and deprived of some of his limbs. Such an argument, indeed, is destitute of all colour of support, for it supposes that by entering into a treaty the very rights are given up which are reserved by the treaty. This is an absurdity.

Is there in the constitution of the United States

any thing to limit or alter this natural and unavoidable construction as applied to the question of jurisdiction? In other words, is it true that though "foreign states" to other intents, they are not "foreign states" within the terms of the provision for the judiciary?

The only conceivable suggestion to the contrary, if any there be, must be derived from the third clause of the eighth section of the first article. Congress shall have power, it is there said, "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The argument may be, that what are here called "Indian tribes" are specified, because they are not comprehended in the words "foreign nations ;" and therefore can not be considered as embraced by the words "foreign states," in the third article of the constitution. This, it will be observed, is a mere verbal criticism, which, if allowed to prove any thing, would prove far to much. The provisions are framed for different purposes and with different views, and are found in different parts of the constitution. The one relates to the legislature, the other to the judiciary. There is no incompatibility between them, nor is there any difficulty at all in letting them stand together, inasmuch as they do not belong to the same subject.

In what sense is the word "tribes" to be considered as here used? Its original and most appropriate meaning is a subdivision of a state, nation or community, forming a constituent part of it, but set apart or distinguished for the more convenient management of its affairs. Thus, Rome was divided into "tribes," in the first instance three, and finally thirty-five. Athens was

divided into ten tribes. There were the twelve tribes of Israel, forming together one nation, under one head, until the revolt of the ten tribes, when they became two nations, and so continued until the ten were lost. The

They had a territory;

constitution cannot have used the word in this sense. We know of no such subdivisions within the Indian nations; and if there had been, no one will suppose that the power given to congress was only to deal with portions of the nations. Sometimes, it is true, this word is applied to wandering hordes, who have no territory; no fixed residence, and no organic structure. But this could not be affirmed of the Cherokee nation. they had fixed boundaries; they had laws and government; they were already parties to a treaty with the United States, and in that treaty were expressly denominated a "nation." Whatever might have been the habits of individuals, the nation had a local habitation, and sufficient stability to be treated with as an organized community.* Was it meant to be excluded from the power of congress? This word "tribes" will be found to occur frequently in the journals of the old congress, and especially in the report before referred to, of August 1787; where it is manifestly employed as synonymous or equivalent to "nations." If it be more comprehensive it might be used from greater caution, in order to cover the whole subject; to comprehend tribes, if any such there were, which were not nations. It would not, therefore, exclude those which were nations, but they would be embraced by both the words. So it has been construed in practice.

But if this verbal argument have any weight, we shall be obliged by it to concede that wherever it happens that different words are used, though occuring in different parts of the constitution and on different branches of power, they must necessarily mean a different thing. Then it will follow, that "a foreign state" and "foreign

* The present principal town of the Cherokee nation will be found mentioned in the earliest records of congress by the name of Chota.