Cheorkee Indians Essay

This essay has a total of 2157 words and 9 pages.

Cheorkee Indians


MARSHALL, C. J. This bill is brought by the Cherokee nation, praying an injunction to
restrain the state of Georgia from the execution of certain laws of that state, which, as
is alleged, go directly to annihilate the Cherokee as a political society, and to seize
for the use of Georgia, the lands of the nation which have been assured to them by the
United States, in solemn treaties repeatedly made and still in force.


If courts were permitted to indulge their sympathies, a case better calculated to excite
them can scarcely be imagined. A people, once numerous, powerful, and truly independent,
found by our ancestors in the quiet and uncontrolled possession of an ample domain,
gradually sinking beneath our superior policy, our arts and our arms, have yielded their
lands, by successive treaties, each of which contains a solemn guarantee of the residue,
until they retain no more of their formerly extensive territory than is deemed necessary
to their comfortable subsistence. To preserve this remnant, the present application is
made.


Before we can look into the merits of the case, a preliminary inquiry presents itself. Has
this court jurisdiction of the cause? The third article of the constitution describes the
extent of the judicial power. The second section closes an enumeration of the cases to
which it is extended, with "controversies between a state or citizens thereof, and foreign
states, citizens or subjects." A subsequent clause of the same section gives the supreme
court original jurisdiction, in all cases in which a state shall be a party. The party
defendant may then unquestionably be sued in this court. May the plaintiff sue in it? Is
the Cherokee nation a foreign state, in the sense in which that term is used in the
constitution? The counsel for the plaintiffs have maintained the affirmative of this
proposition with great earnestness and ability. So much of the argument as was intended to
prove the character of the Cherokees as a state, as a distinct political society,
separated from others, capable of managing its own affairs and governing itself, has in
the opinion of a majority of the judges, been completely successful. They have been
uniformly treated as a state, from the settlement of our country. The numerous treaties
made with them by the United States, recognise them as a people capable of maintaining the
relations of peace and war, of being responsible in their political character for any
violation of their engagements, or for any aggression committed on the citizens of the
United States, by any individual of their community. Laws have been enacted in the spirit
of these treaties. The acts of our government plainly recognise the Cherokee nation as a
state, and the courts are bound by those acts.


A question of much more difficulty remains. Do the Cherokees constitute a foreign state in
the sense of the constitution? The counsel have shown conclusively, that they are not a
state of the Union, and have insisted that, individually, they are aliens, not owing
allegiance to the United States. An aggregate of aliens composing a state must, they say,
be a foreign state; each individual being foreign, the whole must be foreign.


This argument is imposing, but we must examine it more closely, before we yield to it. The
condition of the Indians in relation to the United States is, perhaps, unlike that of any
other two people in existence. In general, nations not owing a common allegiance, are
foreign to each other. The term foreign nation is, with strict propriety, applicable by
either to the other. But the relation of the Indians to the United States is marked by
peculiar and cardinal distinctions which exist nowhere else. The Indian territory is
admitted to compose a part of the United States. In all our maps, geographical treaties,
histories and laws, it is so considered. In all our intercourse with foreign nations, in
our commercial regulations, in any attempt at intercourse between Indians and foreign
nations, they are considered as within the jurisdictional limits of the United States,
subject to many of those restraints which are imposed upon our own citizens. They
acknowledge themselves, in their treaties, to be under the protection of the United
States; they admit, that the United States shall have the sole and exclusive right of
regulating the trade with them, and managing all their affairs as they think proper; and
the Cherokees in particular were allowed by the treaty of Hopewell, which preceded the
constitution, "to send a deputy of their choice, whenever they think fit, to congress."
Treaties were made with some tribes, by the state of New York, under a then unsettled
construction of the confederation, by which they ceded all their lands to that state,
taking back a limited grant to themselves, in which they admit their dependence. Though
the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right
to the lands they occupy, until that right shall be extinguished by a voluntary cession to
our government; yet it may well be doubted, whether those tribes which reside within the
acknowledged boundaries of the United States can, with accuracy, be denominated foreign
nations. They may, more correctly, perhaps, be denominated domestic dependent nations.
They occupy a territory to which we assert a title independent of their will, which must
take effect in point of possession, when their right of possession ceases. Meanwhile, they
are in a state of pupilage; their relation to the United States resembles that of a ward
to his guardian. They look to our government for protection: rely upon its kindness and
its power; appeal to it for relief to their wants; and address the president as their
great father. They and their country are considered by foreign nations, as well as by
ourselves, as being so completely under the sovereignty and dominion of the United States,
that any attempt to acquire their lands, or to form a political connection with them would
be considered by all as an invasion of our territory and an act of hostility. These
considerations go far to support the opinion, that the framers of our constitution had not
the Indian tribes in view, when they opened the courts of the Union to controversies
between a state or the citizens thereof and foreign states.


In considering this subject, the habits and usages of the Indians, in their intercourse
with their white neighbors, ought not to be entirely disregarded. At the time the
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