Cherokee Nation v. Georgia.

any state of this Union, nor to any prince, potentate or state, other than their own." "That from time immemorial, the Cherokee nation have composed a sovereign and independent state, and in this character have been repeatedly recognised, and still stand recognised, 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 the western continent; "deriving their title from the Great Spirit, who is the common father of the human family, and to whom the whole earth belongs." Composing the Cherokee nation, they and their ancestors have been and are the sole and exclusive masters of this territory, governed by their own laws, usages and customs.

The bill stated 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 of the Atlantic,” the same country being then in the ownership of several distinct, sovereign and independent nations of Indians, and amongst them the Cherokee nation. The foundation of this charter, the bill stated, was asserted to be the right of discovery to the territory granted; a ship manned by the subjects of the king having, "about two centuries and a half before, sailed along the coast of the western hemisphere, from the 56th to the 38th degree of north *latitude, and looked upon the face of that coast, without even land[ *+ ing on any part of it." This right, as affecting the right of the Indian nation, the bill denied; and asserted, that the whole length to which the right of discovery was claimed to extend among European nations was, 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 had never assented; and which they denied to be a principle of the natural law of nations, or obligatory on them. The bill alleged, that it never was claimed, under the charter of George the Second, that the grantees, had a right to disturb the self-government of the Indians who were in possession of the country; and that on the contrary, treaties were made by the first adventurers with the Indians, by which a part of the territory was acquired by them for a valuable consideration; and no pretension was ever made, to set up the British laws, in the country owned by the Indians. That various treaties had been, from time to time, made between the British colony in Georgia; between the state of Georgia, before her confederation with the other states; between the confederate 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, had been recognised as sovereign and independent states; possessing both the exclusive right to their territory, and the exclusive right of self-government within that territory. That the various proceedings, 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, confirmed the same view of the subject.

The bill proceeded to refer to the treaty concluded at Hopewell, on the 23th November 1785, "between the commissioners of the United States and head-men and warriors of all the Cherokees ;" the treaty of Holston, of the

Cherokee Nation v. Georgia.

22d July 1791, "between the President of the United States, by his dulyauthorized commissioner, William Blount, and the chiefs and warriors of

the Cherokee nation of Indians," and the additional *article of 17th

*5] November 1792, made at Philadelphia, by Henry Knox, 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 Tellico, 2d October 1790; on the 24th October 1804; on the 25th October 1805, and the 27th October 1805; the treaty at Washington, on the 7th January 1806, with the proclamation of that convention by the president, and the elucidation of that convention of 11th September 1807; the treaty between the United States and the Cherokee nation, made at the city of Washington, on the 22d day of March 1816; another 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 Washington, on the 27th February 1819; "all of which treaties and conventions were duly ratified and confirmed by the senate of the United States, and became thenceforth, and still are, a part of the supreme law of the land." By those treaties, the bill asserted, the Cherokee nation of Indians were acknowledged and treated with as sovereign and independent states, within the boundary arranged by those treaties; and that the complainants were, within the boundary established by the treaty of 1719, sovereign and independent; with the right of self-government, without any right of interference with the same on the part of any state of the United States. The bill called the attention of the court to the particular provisions of those treaties, "for the purpose of verifying the truth of the general principles deduced from them."

The bill alleged, from the earliest intercourse between the United States and the Cherokee nation, an ardent desire had been evinced by the United States to lead the Cherokees to a greater degree of civilization. This is shown by the 14th article of the treaty of Holston; and by the course pursued by the United States in 1808, when a treaty 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 pursuits of agricultural and civilized life, in the country they occupied, might rely "on the *patron*6] age, aid and good neighborhood of the United States." The treaty of 8th July 1817, was made to carry those promises into effect; and in' reliance on them, a large cession of lands was thereby made; and in 1819, on the 27th February, another treaty was made, the preamble of which recites that a greater part of the Cherokee nation had expressed an earnest desire to remain on this side of the Mississippi, and were desirous to commence those measures which they deem necessary to the civilization and preservation of their nation; to give effect to which object, without delay, that treaty was declared to be made; and another large cession of their lands was thereby made by them to the United States. By a reference to the several treaties, it would be seen, that a fund was provided for the establishment of schools; and the bill asserted, that great progress had been made by the Cherokees in civilization and in agriculture. They had established a constitution and form of government, the leading features of which

Cherokee Nation v. Georgia.

they had borrowed from that of the United States; dividing their government into three separate departments, legislative, executive and judicial. In conformity with this constitution, these departments had all been organized. They had formed a code of laws, civil and criminal, adapted to their situation; had erected courts to expound and apply those laws, and organized an executive to carry them into effect. They had established schools for the education of their children, and churches in which the Christian religion is taught; they had abandoned the hunter-state, and become agriculturists, mechanics and herdsmen ; and under provocations long continued and hard to be borne, they had observed, with fidelity, all their engagements by treaty with the United States. Under the promised "patronage and good neighborhood" of the United States, a portion of the people of the nation had become civilized Christians and agriculturists; and the bill alleged, that in these respects they were willing to submit to a comparison with their white brethren around them.

The bill claimed for the Cherokee nation the benefit of the provision in the constitution, that treaties are the supreme law of the land, and all judges are bound thereby; of the declaration in the constitution, that no state shall pass any law *impairing the obligation of contracts; and [ *7 averred, that all the treaties referred to were contracts of the highest character and of the most solemn obligation. It asserted, that the constitutional provision, that congress shall have power to regulate commerce with the Indian tribes, was a power which, from its nature, was exclusive; and consequently, forbade all interference by any one of the states. That congress had, in execution of this power, passed various acts, and among others the act of 1802, "to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers." The object of these acts was to consecrate the Indian boundary as arranged by the treaties; and they contained clear recognitions of the sovereignty of the Indians, and of their exclusive right to give and to execute the law within that boundary.

The bill proceeded to state, that, in violation of these treaties, of the constitution of the United States, and of the act of congress of 1802, the state of Georgia, at a session of her legislature held in December, in the year 1828, passed an act which received the assent of the governor of that state on the 20th day of that month and year, entitled, "an act to add the territory lying within this state, and occupied by the Cherokee Indians, to the counties of Carroll, De Kalb, Gwinett, Hall and Habersham, and to extend the daws of this state over 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, which 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 extend the laws of this state over the same, and annul all laws and ordinances made. by the Cherokee nation of Indians, and to provide for the compensation of officers serving legal processes in said territory, and to regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 on this subject." The effect of these laws, and their purposes, was stated to be, to parcel out the territory of the Cherokees; to extend all the laws of Gerogia over the same; to abolish the Cherokee laws, and to deprive the Cherokees

Cherokee Nation v. Georgia.

of the protection of their laws; *to prevent them, as individuals, from enrolling for emigration, under the penalty of indictment before the 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 justices of the peace of Georgia into the Cherokee territory, and authorizing the calling out of the militia of Georgia to enforce the process; and finally, declaring that no Indian, or decendant of any Indian, residing within the Cherokee nation of Indians, should be deemed a competent witness in any court of the state of Georgia, in which a white person might be a party, except such white person resided within the said nation. All these laws were averred to be null and void: because repugnant to treaties in full force; to the constitution of the United States; and to the act of congress of 1802.

The bill then proceeded to state the interference of President Washington for the protection of the Cherokees, and the resolutions of the senate, in consequence of his reference of the subject of intrusions on their territory. That in 1802, the state of Georgia, in ceding to the United States a large body of lands within her alleged chartered limits, and imposing a condition that the Indian title should be peaceably extinguished, admitted the subsisting Indian title. That cessions of territory had always been voluntarily made by the Indians, in their national character; and that cessions had been made of as much land as could be spared, until the cession of 1819, when they had reduced their territory into as small a compass as their own convenience would bear; and they then accordingly resolved to cede no more." The bill then referred to the various applications of Georgia to the United States, to extinguish the Indian title by force, and her denial of the obligations of the treaties with the Cherokees ; although, under these treaties, large additions to her disposable lands had been made; and stated, 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 binding the United States to extinguish the Indian title, so soon only as it could be done peaceably and on reasonable terms, refused, *9 ] themselves, to apply force to these *complainants, or to 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 applications to the government of the United States, had 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 stated, that application for protection, and for the execution of the guarantee of the treaties, had been made by the Cherokees to the present president of the United States, and they had received for answer, “that the president of the United States has no power to protect them against the laws of Georgia."

The bill proceeds to refer to the act of congress of 1830, 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

Cherokee Nation v. Georgia.

the proviso to it, nothing contained in the act shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes. The complainants had not chosen to remove, and this, it was alleged, it was sufficient for the complainants to say: but they proceeded to state, that they were fully satisfied with the country they possessed; the climate was salubrious; it was convenient for commerce and intercourse; it contained schools, in which they could obtain teachers from the neighboring states, and places for the worship of God, where Christianity is taught by missionaries and pastors easily supplied from the United States. The country, too, "is consecrated in their affections, from having been immemorially the property and residence of their ancestors, and from containing now the graves of their fathers, relatives and friends." Little was known of the country west of the Mississippi; and if accepted, the bill asserted, it would be the grave not only of their civilization and Christianity, but of the nation itself.

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[*10

It also alleged, that the portion of the nation who emigrated *under the patronage and sanction of the president, in 1808 and 1809, and settled on the territory assigned to them on the Arkansas river, were afterwards 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, was said to be exposed to incursions of hostile Indians, and that they were engaged in constant scenes of killing and scalping, and have to wage a war of exermination with more powerful tribes, before whom they will ultimately fall." They had, therefore, decidedly rejected the offer of exchange. The bill then proceeded to state various acts, under the authority of the laws of Georgia, in defiance of the treaties referred to, and of the constitution of the United States, as expressed in the act of 1802; and that the state of Georgia had declared its determination to continue to enforce these laws, so long as the complainants should continue to occupy their territory. But while these laws were enforced in a manner the most harassing and vexatious to the complainants, the design seemed 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 believed, and therefore alleged, to prevent any one of the Cherokee defendants from carrying these cases to the supreme court of the United States, by writ of error, for review, under the 25th section of the act of congress of the United States, passed in the year 1789, and entitled "an act to establish the judicial courts of the United States."

Numerous instances of proceedings were set forth at large in the bill. The complainants expected protection from these unconstitutional acts of Georgia, by the troops of the United States; but notice had been given by the commanding officer of those troops to John Ross, the principal chief of the Cherokee nation, that "these troops, so far from protecting the Cherokees, would co-operate with the civil officers of Georgia, in enforcing their laws upon them." Under these circumstances, it was said, that it could not but be seen, that unless this court should interfere, the complainants had but these alternatives; either to surrender their lands in exchange for others in the western wilds of this continent, which would be to scal, at once, tho doom of their civilization, Christianity and *national existence; or to [*11 surrender their national sovereignty, their property, rights and liber