STATE OF GEORGIA.
30 U.S. 1 (5 Pet. 1831)
January Term, 1831
[Opinion of Mr. Chief Justice Marshall.
[Opinion of Mr. Justice Johnson.
[Opinion of Mr. Justice Baldwin.
[Opinion of Mr. Justice Thompson.]
THIS case came before the court on a motion on behalf of the Cherokee nation of Indians for a subpoena, and for an injunction, to restrain the state of Georgia, the governor, attorney-general, judges, justices of the peace, sheriffs, deputy sheriffs, constables, and others the officers, agents, and servants of that state, from executing and enforcing the laws of Georgia or any of these laws, or serving proceess, or doing any thing towards the execution or enforcement of those laws, within the Cherokee territory, as designated by treaty between the United States and the Cherokee nation.
The motion was made, after notice and a copy of the bill filed at the instance and under the authority of the Cherokee nation, had been served on the governor and attorney-general of the state of Georgia on the 27th December 1830, and the 1st of January 1831. The notice stated that the motion would be made in this court on Saturday, the 5th day of March 1831. The bill was signed by John Ross, principal chief of the Cherokee nation, and an affidavit, in the usual form, of the facts stated in the bill was annexed; which was sworn to before a justice of the peace of Richmond county, state of Georgia.
The bill set forth the complainants to be "the Cherokee nation of Indians, a foreign state, not owing allegiance to the United States, nor to 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 recognized, and still stand recognized 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 states 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 states is 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 fifty-sixth to the thirty-eighth degree of north latitude, and looked upon the face of that coast without even landing on any part of it." This right, as affecting the right of the Indian nation, the bill denies; and asserts that the whole length to which the right of discovery is claimed to extend among European nations is 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 have never assented; and which they deny to be a principle of the natural law of nations, or obligatory on them.
The bill alleges, 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 have 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 have been recognized 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; confirm the same view of the subject.
The bill proceeds to refer to the treaty concluded at Hopewell on the 28th November 1785, "between the commissioners of the United States and head men and warriors of all the Cherokees;" the treaty of Holston of the 22d July 1791, "between the president of the United States by his duly authorized commissioner, William Blount, and the chiefs and warriors of the Cherokee nation of Indians," and the additional article of 17th 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 asserts the Cherokee nation of Indians are acknowledged and treated with as sovereign and independent states, within the boundary arranged by those treaties: and that the complainants are, 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 calls 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 alleges, from the earliest intercourse between the United States and the Cherokee nation, an ardent desire has been evinced by the United States to lead the Cherokees to a greater degree of civilization. This is shown by the fourteenth 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 patronage, aid and good neighbourhood 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 will be seen that a fund is provided for the establishment of schools; and the bill asserts that great progress has been made by the Cherokees in civilization and in agriculture.
They have established a constitution and form of government, the leading features of which they have 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 have all been organized. They have formed a code of laws, civil and criminal, adapted to their situation; have erected courts to expound and apply those laws, and organized an executive to carry them into effect. They have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state, and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States.
Under the promised "patronage and good neighbourhood" of the United States, a portion of the people of the nation have become civilized Christians and agriculturists; and the bill alleges that in these respects they are willing to submit to a comparison with their white brethren around them.
The bill claims 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 avers that all the treaties referred to are contracts of the highest character and of the most solemn obligation. It asserts that the constitutional provision, that congress shall have power to regulate commerce with the Indian tribes, is a power which from its nature is exclusive; and consequently forbids all interference by any one of the states. That congress have, 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 objects of these acts are to consecrate the Indian boundary as arranged by the treaties; and they contain 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 proceeds 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 twentieth 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 laws 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 to 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, are stated to be, to parcel out the territory of the Cherokees; to extend all the laws of Georgia over the same; to abolish the Cherokee laws, and to deprive the Cherokees 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 authorising the calling out of the militia of Georgia to enforce the process; and finally, declaring that no Indian, or descendant of any Indian, residing within the Cherokee nation of Indians, shall be deemed a competent witness in any court of the state of Georgia, in which a white person may be a party, except such white person resides within the said nation.
All these laws are 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 proceeds 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 have always been voluntarily made by the Indians in their national character; and that cessions have 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 refers 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 states, 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, 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, have 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 states, that application for protection, and for the execution of the guarantee of the treaties, has been made by the Cherokees to the present president of the United States, and they have 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 the proviso to it, nothing contained in the act shall be construed as authorising or directing the violation of any existing treaty between the United States and any of the Indian tribes.
The complainants have not chosen to remove, and this, it is alleged, it is sufficient for the complainants to say: but they proceed to state, that they are fully satisfied with the country they possess; the climate is salubrious; it is convenient for commerce and intercourse; it contains schools, in which they can obtain teachers from the neighbouring 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 consecurate 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 is known of the country west of the Mississippi; and if accepted, the bill asserts it will be the grave not only of their civilization and Christianity, but of the nation itself. It also alleges 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, is said to be exposed to incursions of hostile Indians, and that they are "engaged in constant scenes of killing and scalping, and have to wage a war of extermination with more powerful tribes, before whom they will ultimately fall." They have therefore, decidedly rejected the offer of exchange.
The bill then proceeds 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 has declared its determination to continue to enforce these laws so long as the complainants shall continue to occupy their territory.
But while these laws are enforced in a manner the most harassing and vexatious to your complainants, the design seems 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 believe and therefore allege, to prevent any one of the Cherokee defendants from carrying those cases to the supreme court of the United States, by writ of error for review, under the twenty-fifth 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 are 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 has 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 is said that it cannot but be seen that unless this court shall interfere, the complainants have but these alternatives: either to surrender their lands in exchange for others in the western wilds of this continent, which would be to seal, at once, the doom of their civilization, Christianity, and national existence; or to surrender their national sovereignty, their property, rights and liberties, guarantied as these now are by so many treaties, to the rapacity and injustice of the state of Georgia; or to arm themselves in defence of these sacred rights, and fall sword in hand, on the graves of their fathers.
These proceedings it is alleged are wholly inconsistent with equity and good conscience, tend to the manifest wrong of the complainants; and violate the faith of the treaties to which Georgia and the United States are parties, and of the constitution of the United States. These wrongs are of a character wholly irremediable by the common law; and these complainants are wholly without remedy of any kind, except by the interposition of this honourable court.
The bill avers that this court has, by the constitution and laws of the United States, original jurisdiction of controversies between a state and a foreign state, without any restriction as to the nature of the controversy; that, by the constitution, treaties are the supreme law of the land. That as a foreign state, the complainants claim the exercise of the powers of the court of protect them in their rights, and that the laws of Georgia, which interfere with their rights and property, shall be declared void, and their execution be perpetually enjoined.
The bill states that John Ross is "the principal chief and executive head of the Cherokee nation;" and that, in a full and regular council of that nation, he has been duly authorised to institute this and all other suits which may become necessary for the assertion of the rights of the entire nation. The bill then proceeds in the usual form to ask and answer to the allegations contained in it, and "that the said state of Georgia, her governor, attorney- general, judges, magistrates, sheriffs, deputy sheriffs, constables, and all other her officers, agents, and servants, civil and military, may be enjoined and prohibited from executing the laws of that state within the boundary of the Cherokee territory, as prescribed by the treaties now subsisting between the United States and the Cherokee nation, or interfering in any manner with the rights of self government possessed by the Cherokee nation within the limits of their territory, as defined by the treaty; that the two laws of Georgia before mentioned as having been passed in the years 1828 and 1829 may, by the decree of this honourable court, be declared unconstitutional and void; and that the state of Georgia, and all her officers, agents, and servants may be for ever enjoined from interfering with the lands, mines and other property, real and personal, of the Cherokee nation, or with the persons of the Cherokee people, for or, on account of any thing done by them within the limits of the Cherokee territory; that the pretended right of the state of Georgia to the possession, government, or control of the lands, mines, and other property of the Cherokee nation, within their territory, may, by this honourable court, be declared to be unfounded and void, and that the Cherokees may be left in the undisturbed possession, use, and enjoyment of the same, according to their own sovereign right and pleasure, and their own laws, usages, and customs, free from any hindrance, molestation, or interruption by the state of Georgia, her officers, agents, and servants; that these complainants may be quieted in the possession of all their rights, privileges, and immunities, under their various treaties with the United States; and that they may have such other and farther relief as this honourable court may deem consistent with equity and good conscience, and as the nature of their case may require."
On the day appointed for the hearing, the counsel for the complainants filed a supplemental bill, sworn to by Richard Taylor, John Ridge, and W. S. Coodey of the Cherokee nation of Indians, before a justice of the peace of the county of Washington in the district of Columbia.
The supplemental bill states, that since their bill, now submitted, was drawn, the following acts, demonstrative of the determination of the state of Georgia to enforce her assumed authority over the complainants and their territory, property, and jurisdiction, have taken place.
The individual, called in that bill Corn Tassel, and mentioned as having been arrested in the Cherokee territory under process issued under the laws of Georgia, has been actually hung; in defiance of a writ of error allowed by the chief justice of this court to the final sentence of the court of Georgia in his case. That writ of error having been received by the governor of the state was, as the complainants are informed and believe, immediately communicated by him to the legislature of the state, then in session; who promptly resolved, in substance, that the supreme court of the United States had no jurisdiction over the subject, and advised the immediate execution of the prisoner, under the sentence of the state court; which accordingly took place.
The complainants beg leave farther to state, that the legislature of the state of Georgia, at the same session, passed the following laws, which have received the sanction of the governor of the state.
"An act to authorize the survey and disposition of lands within the limits of Georgia, in the occupancy of the Cherokee tribe of Indians, and all other unlocated lands within the limits of the said state, claimed as Creek land; and to authorize the governor to call out the military force to protect surveyors in the discharge of their duties: and to provide for the punishment of persons who may prevent, or attempt to prevent any surveyor from performing his duties, as pointed out by this act, or who shall wilfully cut down or deface any marked trees, or remove any land-marks which may be made in pursuance of this act; and to protect the Indians in the peaceable possession of their improvements, and of the lots on which the same may be situate."
Under this law it is stated that the lands within the boundary of the Cherokee territory are to be surveyed, and to be distributed by lottery among the people of Georgia.
At the same session the legislature of Georgia passed another act, entitled, "an act to declare void all contracts hereafter made with the Cherokee Indians, so far as the Indians are concerned;" which act received the assent of the governor of the state on the 23d of December 1830.
The legislature of Georgia, at its same session, passed another law, entitled, "an act to provide for the temporary disposal of the improvements and possessions purchased from certain Cherokee Indians and residents;" which act received the assent of the governor of the state the 22d December 1830.
At its same session the legislature of Georgia passed another law, entitled, "an act to prevent the exercise of assumed and arbitrary power by all persons under pretext of authority from the Cherokee Indians and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory."
At the same session of its legislature, the state of Georgia passed another act, entitled "an act to authorize the governor to take possession of the gold, silver, and other mines, lying and being in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the state, and for punishing any person or persons who may hereafter be found trespassing upon the mines."
The supplemental bill further states the proceedings of the governor of Georgia, under these laws; and that he has stationed an armed force of the citizens of Georgia, at the gold mines within the territory of the complainants, who are engaged in enforcing the laws of Georgia. Additional acts of violence and injustice are said to have been done under the authority of the laws of Georgia, and by her officers and agents, within the Cherokee territory.
The complainants allege that the several legislative acts, herein set forth and referred to, are in direct violation of the treaties enumerated in their bill, to which this is a supplement, as well as in direct violation of the constitution of the United States, and the act of congress passed under its authority in the year 1802, entitled, "an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers."
They pray that this supplement may be taken and received as a part of their bill; that the several laws of Georgia herein set forth may be declared by the decree of this court to be null and void, on the ground of the repugnancy to the constitution, laws, and treaties set forth above, and in the bill to which this is a supplement; and that these complainants may have the same relief by injunction and a decree of peace, or otherwise, according to equity and good conscience, against these laws, as against those which are the subject of their bill as first drawn.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
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 Cherokees 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 the 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 recognize 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 recognize 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 the 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 no where else.
The Indian territory is admitted to compose a part of the United States. In all our maps, geographical treatises, 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 strict 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 connexion 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 neighbours, ought not to be entirely disregarded. At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the union. Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such, that we should feel much difficulty in considering them as designated by the term foreign state, were there no other part of the constitution which might shed light on the meaning of these words. But we think that in construing them, considerable aid is furnished by that clause in the eighth section of the third article; which empowers congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
In this clause they are as clearly contra distinguished by a name appropriate to themselves, from foreign nations, as from the several states composing the union. They are designated by a distinct appellation; and as this appellation can be applied to neither of the others, neither can the appellation distinguishing either of the others be in fair construction applied to them. The objects, to which the power of regulating commerce might be directed, are divided into three distinct classes--foreign nations, the several states, and Indian tribes. When forming this article, the convention considered them as entirely distinct. We cannot assume that the distinction was lost in framing a subsequent article, unless there be something in its language to authorize the assumption.
The counsel for the plaintiffs contend that the words "Indian tribes" were introduced into the article, empowering congress to regulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the language of the ninth article of the confederation. Intending to give the whole power of managing those affairs to the government about to be instituted, the convention conferred it explicitly; and omitted those qualifications which embarrassed the exercise of it as granted in the confederation. This may be admitted without weakening the construction which has been intimated. Had the Indian tribes been foreign nations, in the view of the convention; this exclusive power of regulating intercourse with them might have been, and most probably would have been, specifically given, in language indicating that idea, not in language contra distinguishing them from foreign nations. Congress might have been empowered "to regulate commerce with foreign nations, including the Indian tribes, and among the several states." This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly.
It has been also said, that the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument: their meaning is controlled by the context. This is undoubtedly true. In common language the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context. This may not be equally true with respect to proper names. Foreign nations is a general term, the application of which to Indian tribes, when used in the American constitution, is at best extremely questionable. In one article in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contra-distinguishing them from each other. We perceive plainly that the constitution in this article does not comprehend Indian tribes in the general term "foreign nations;" not we presume because a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term "foreign state" is introduced, we cannot impute to the convention the intention to desert its former meaning, and to comprehend Indian tribes within it, unless the context force that construction on us. We find nothing in the context, and nothing in the subject of the article, which leads to it.
The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States.
A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighbouring people, asserting their independence; their right to which the state denies. On several of the matters alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self government in their own country by the Cherokee nation, this court cannot interpose; at least in the form in which those matters are presented.
That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might perhaps be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savours too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question.
If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.
The motion for an injunction is denied.
Mr. Justice JOHNSON.
In pursuance of my practice in giving an opinion on all constitutional questions, I must present my views on this. With the morality of the case I have no concern; I am called upon to consider it as a legal question.
The object of this bill is to claim the interposition of this court as the means of preventing the state of Georgia, or the public functionaries of the state of Georgia, from asserting certain rights and powers over the country and people of the Cherokee nation. It is not enough, in order to come before this court for relief, that a case of injury, or of cause to apprehend injury, should be made out. Besides having a cause of action, the complainant must bring himself within that description of parties, who alone are permitted, under the constitution, to bring an original suit to this court.
It is essential to such suit that a state of this union should be a party; so says the second member of the second section of the third article of the constitution: the other party must, under the control of the eleventh amendment, be another state of the union, or a foreign state. In this case, the averment is, that the complainant is a foreign state.
Two preliminary questions then present themselves.
1. Is the complainant a foreign state in the sense of the constitution?
2. Is the case presented in the bill one of judicial cognizance?
Until these questions are disposed of, we have no right to look into the nature of the controversy any farther than is necessary to determine them.
I vote for rejecting the motion.
Mr Justice BALDWIN.
As jurisdiction is the first question which must arise in every cause, I have confined my examination of this, entirely to that point, and that branch of it which relates to the capacity of the plaintiffs to ask the interposition of this court. I concur in the opinion of the court in dismissing the bill, but not for the reasons assigned.
In my opinion there is no plaintiff in this suit; and this opinion precludes any examination into the merits of the bill, or the weight of any minor objections. My judgment stops me at the threshold, and forbids me to examine into the acts complained of.
As the reasons for the judgment of the court seem to me more important than the judgment itself, in its effects on the peace of the country and the condition of the complainants, and as I stand alone on one question of vital concern to both; I must give my reasons in full. The opinion of this court is of high authority in itself; and the judge who delivers it has a support as strong in moral influence over public opinion, as any human tribunal can impart. The judge, who stands alone in decided dissent on matters of the infinite magnitude which this case presents, must sink under the continued and unequal struggle; unless he can fix himself by a firm hold on the constitution and laws of the country. He must be presumed to be in the wrong, until he proves himself to be in the right. Not shrinking even from this fearful issue, I proceed to consider the only question which I shall ever examine in relation to the rights of Indians to sue in the federal courts, until convinced of my error in my present convictions.
My view of the plaintiffs being a sovereign independent nation or foreign state, within the meaning of the constitution, applies to all the tribes with whom the Unites States have held treaties: for if one is a foreign nation or state, all others in like condition must be so in their aggregate capacity; and each of their subjects or citizens, aliens, capable of suing in the circuit courts. This case then is the case of the countless tribes, who occupy tracts of our vast domain; who, in their collective and individual characters, as states or aliens, will rush to the federal courts in endless controversies, growing out of the laws of the states or of congress.
While the different nations of Europe respected the rights of the natives as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a power to grant the soil while yet in the possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian rights of occupancy. The history of America from its discovery to the present day proves, we think, the universal recognition of these principles. 8 Wheat. 574.
I feel it my duty to apply them to this case. They are in perfect accordance with those on which the governments of the united and individual states have acted in all their changes: they were asserted and maintained by the colonies, before they assumed independence. While dependent themselves on the crown, they exercised all the rights of dominion and sovereignty over the territory occupied by the Indians; and this is the first assertion by them of rights as a foreign state within the limits of a state. If their jurisdiction within their boundaries has been unquestioned until this controversy; if rights have been exercised which are directly repugnant to those now claimed; the judicial power cannot divest the states of rights of sovereignty, and transfer them to the Indians, by decreeing them to be a nation, or foreign state, pre-existing and with rightful jurisdiction and sovereignty over the territory they occupy. This would reverse every principle on which our government have acted for fifty-five years; and force, by mere judicial power, upon the other departments of this government and the states of this union, the recognition of the existence of nations and states within the limits of both, possessing dominion and jurisdiction paramount to the federal and state constitutions. It will be a declaration, in my deliberate judgment, that the sovereign power of the people of the United States and union must hereafter remain incapable of action over territory to which their rights in full dominion have been asserted with the most rigorous authority, and bow to a jurisdiction hitherto unknown, unacknowledged by any department of the government; denied by all through all time; unclaimed till now; and now declared to have been called into exercise, not by any change in our constitution, the laws of the union or the states; but pre-existent and paramount over the supreme law of the land.
I disclaim the assumption of a judicial power so awfully responsible. No assurance or certainty of support in public opinion can induce me to disregard a law so supreme; so plain to my judgment and reason. Those, who have brought public opinion to bear on this subject, act under a mere moral responsibility; under no oath which binds their movements to the straight and narrow line drawn by the constitution. Politics or philanthropy may impel them to pass it, but when their objects can be effectuated only by this court, they must not expect its members to diverge from it, when they cannot conscientiously take the first step without breaking all the high obligations under which they administer the judicial power of the constitution. The account of my executorship cannot be settled before the court of public opinion, or any human tribunal. None can release the balance which will accrue by the violation of my solemn conviction of duty.
Mr. Justice THOMPSON, dissenting.
Entertaining different views of the questions now before us in this case, and having arrived at a conclusion different from that of a majority of the court, and considering the importance of the case and the constitutional principle involved in it; I shall proceed, with all due respect for the opinion of others, to assign the reasons upon which my own has been formed.
In the opinion pronounced by the court, the merits of the controversy between the state of Georgia and the Cherokee Indians have not been taken into consideration. The denial of the application for an injunction has been placed solely on the ground of want of jurisdiction in this court to grant the relief prayed for. It became, therefore, unnecessary to inquire into the merits of the case. But thinking as I do that the court has jurisdiction of the case, and may grant relief, at least in part; it may become necessary for me, in the course of my opinion, to glance at the merits of the controversy; which I shall, however, do very briefly, as it is important so far as relates to the present application.
Before entering upon the examination of the particular points which have been made and argued, and for the purpose of guarding against any erroneous conclusions, it is proper that I should state, that I do not claim for this court, the exercise of jurisdiction upon any matter properly falling under the denomination of political power. Relief to the full extent prayed by the bill may be beyond the reach of this court. Much of the matter therein contained, by way of complaint, would seem to depend for relief upon the exercise of political power; and as such, appropriately devolving upon the executive, and not the judicial department of the government. This court can grant relief so far only as the rights of person or property are drawn in question, and have been infringed.
It would very ill become the judicial station which I hold, to indulge in any remarks upon the hardship of the case, or the great justice that would seem to have been done to the complainants, according to the statement in the bill, and which for the purpose of the present motion I must assume to be true. If they are entitled to other than judicial relief, it cannot be admitted that in a government like ours, redress is not to be had in some of its departments; and the responsibility for its denial must rest upon those who have the power to grant it. But believing as I do, that relief to some extent falls properly under judicial cognizance, I shall proceed to the examination of the case under the following heads.
1. Is the Cherokee nation of Indians a competent party to sue in this court?
2. Is a sufficient case made out in the bill, to warrant this court in granting any relief?
3. Is an injunction the fit and appropriate relief?
4. 1. By the constitution of the United States it is declared (Art. 3, § 2), that the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority; &c. to controversies between two or more states, &c. and between a state or the citizens thereof; and foreign states, citizens or subjects.
The controversy in the present case is alleged to be between a foreign state, and one of the states of the union; and does not, therefore, come within the eleventh amendment of the constitution, which declares that the judicial power of the United States, shall not be construed to extend to any suit 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. This amendment does not, therefore, extend to suits prosecuted against one of the United States by a foreign state. The constitution further provides, that in all cases where a state shall be a party, the supreme court shall have original jurisdiction. Under these provisions in the constitution, the complainants have filed their bill in this court, in the character of a foreign state, against the state of Georgia; praying an injunction to restrain that state from committing various alleged violations of the property of the nation, claimed under the laws of the United States, and treaties made with the Cherokee nation.
That a state of this union may be sued by a foreign state, when a proper case exists and is presented, is too plainly and expressly declared in the constitution to admit of doubt; and the first inquiry is, whether the Cherokee nation is a foreign state within the sense and meaning of the constitution.
The terms state and nation are used in the law of nations, as well as in common parlance, as importing the same thing; and imply a body of men, united together, to procure their mutual safety and advantage by means of their union. Such a society has its affairsand interests to manage; it deliberates, and takes resolutions in common, and thus becomes a moral person, having an understanding and a will peculiar to itself, and is susceptible of obligations and laws. Vattel, 1. Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, live together in the state of nature, nations or sovereign states; are to be considered as so many free persons, living together in a state of nature. Vattel 2, § 4. Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations. It is sufficient if it be really sovereign and independent: that is, it must govern itself by its own authority and laws. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. The conditions of these unequal alliances may be infinitely varied; but whatever they are, provided the inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be considered an independent state. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of government and sovereignty, does not cease on this account to be placed among the sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self government, and sovereign and independent authority is left in the administration of the state. Vattel, c. 1, pp. 16, 17.
Testing the character and condition of the Cherokee Indians by these rules, it is not perceived how it is possible to escape the conclusion, that they form a sovereign state. They have always been dealt with as such by the government of the United States; both before and since the adoption of the present constitution. They have been admitted and treated as a people governed solely and exclusively by their own laws, usages, and customs within their own territory, claiming and exercising exclusive dominion over the same; yielding up by treaty, from time to time, portions of their land, but still claiming absolute sovereignty and self government over what remained unsold. And this has been the light in which they have, until recently, been considered from the earliest settlement of the country by the white people. And indeed, I do not understand it is denied by a majority of the court, that the Cherokee Indians form a sovereign state according to the doctrine of the law of nations; but that, although a sovereign state, they are not considered a foreign state within the meaning of the constitution.
Whether the Cherokee Indians are to be considered a foreign state or not, is a point on which we cannot expect to discover much light from the law of nations. We must derive this knowledge chiefly from the practice of our own government, and the light in which the nation has been viewed and treated by it. That numerous tribes of Indians, and among others the Cherokee nation, occupied many parts of this country long before the discovery by Europeans, is abundantly established by history; and it is not denied but that the Cherokee nation occupied the territory now claimed by them long before that period. It does not fall within the scope and object of the present inquiry to go into a critical examination of the nature and extent of the rights growing out of such occupancy, or the justice and humanity with which the Indians have been treated, or their rights respected.
That they are entitled to such occupancy, so long as they choose quietly and peaceably to remain upon the land, cannot be questioned. The circumstance of their original occupancy is here referred to, merely for the purpose of showing, that if these Indian communities were then, as they certainly were, nations, they must have been foreign nations, to all the world; not having any connexion, or alliance of any description, with any other power on earth. And if the Cherokees were then a foreign nation; when or how have they lost that character, and ceased to be a distinct people, and become incorporated with any other community?
They have never been, by conquest, reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence, and the rights of self government, and become subject to the laws of the conqueror. When ever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side according to existing circumstances; the Indian nation always preserving its distinct and separate national character. And notwithstanding we do not recognize the right of the Indians to transfer the absolute title of their lands to any other than ourselves; the right of occupancy is still admitted to remain in them, accompanied with the right of self government, according to their own usages and customs; and with the competency to act in a national capacity, although placed under the protection of the whites, and owing a qualified subjection so far as is requisite for public safety. But the principle is universally admitted, that this occupancy belongs to them as matter of right, and not by mere indulgence. They cannot be disturbed in the enjoyment of it, or deprived of it, without their free consent; or unless a just and necessary war should sanction their dispossession.
In this view of their situation, there is as full and complete recognition of their sovereignty, as if they were the absolute owners of the soil. The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their national or foreign character, so long as they are permitted to maintain a separate and distinct government; it is their political condition that constitutes their foreign character, and in that sense must the term foreign, be understood as used in the constitution. It can have no relation to local, geographical, or territorial position. It cannot mean a country beyond sea. Mexico or Canada is certainly to be considered a foreign country, in reference to the United States. It is the political relation in which one government or country stands to another, which constitutes it foreign to the other. The Cherokee territory being within the chartered limits of Georgia, does not affect the question. When Georgia is spoken of as a state, reference is had to its political character, and not be boundary; and it is not perceived that any absurdity or inconsistency grows out of the circumstance, that the jurisdiction and territory of the state of Georgia surround or extend on every side of the Cherokee territory. It may be inconvenient to the state, and very desirable, that the Cherokees should be removed; but it does not at all affect the political relation between Georgia and those Indians. Suppose the Cherokee territory had been occupied by Spaniards or any other civilized people, instead of Indians, and they had from time to time ceded to the United States portions of their lands precisely in the same manner as the Indians have done, and in like manner retained and occupied the part now held by the Cherokees, and having a regular government established there: would it not only be considered a separate and distinct nation or state, but a foreign nation, with reference to the state of Georgia or the United States. If we look to lexicographers, as well as approved writers, for the use of the term foreign, it may be applied with the strictest propriety to the Cherokee nation.
I have endeavoured to show that the Cherokee nation is a foreign state; and, as such, a competent party to maintain an original suit in this court against one of the United States. The injuries complained of are violations committed and threatened upon the property of the complainants, secured to them by the laws and treaties of the United States. Under the constitution, the judicial power of the United States extends expressly to all cases in law and equity, arising under the laws of the United States, and treaties made or which shall be made, under the authority of the same.
In the case of Osborn vs. The United States Bank, 9 Wheat. 819, the court say, that this clause in the constitution enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form presented by law. It then becomes a case, and the constitution authorises the application of the judicial power.
The question presented in the present case is, under the ordinary form of judicial proceedings, to obtain an injunction to prevent or stay a violation of the rights of property claimed and held by the complainants, under the treaties and laws of the United States; which, it is alleged, have been violated by the state of Georgia. Both the form, and the subject matter of the complaint, therefore, fall properly under judicial cognizance.
What the rights of property in the Cherokee nation are, may be discovered from the several treaties which have been made between the United States and that nation between the years 1785 and 1819. It will be unnecessary to notice many of them. They all recognize, in the most unqualified manner, a right of property in this nation, to the occupancy at least, of the lands in question. It is immaterial whether this interest is a mere right of occupancy, or an absolute right to the soil. The complains is for a violation, or threatened violation, of the possessory right. And this is a right, in the enjoyment of which they are entitled to protection, according to the doctrine of this court in the cases of Fletcher vs. Peck, 6 Cranch 87, 2 Peters's Cond. Rep. 308, and Johnson vs. M'Intosh, 8 Wheat. 592. By the fourth article of the treaty of Hopewell, as early as the year 1785, 1 Laws United States, 323, the boundary line between the Cherokees and the citizens of the United States within the limits of the United States is fixed.
This court can have no right to pronounce an abstract opinion upon the constitutionality of a state law. Such law must be brought into actual or threatened operation, upon rights properly falling under judicial cognizance, or a remedy is not to be had here.
The laws of Georgia set out in the bill, if carried fully into operation, go the length of a abrogating all the laws of the Cherokees, abolishing their government, and entirely subverting their national character. Although the whole of these laws may be in violation of the treaties made with this nation, it is probable this court cannot grant relief to the full extent of the complaint. Some of them, however, are so directly at variance with these treaties and the laws of the United States touching the rights of property secured to them, that I can perceive no objection to the application of judicial relief. The state of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed in any manner whatever as acts of war; but merely as an assertion of what is claimed as a legal right: and in this light ought they to be considered by this court.
The act of the 2d of December, 1830 is entitled "an act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the state, and for punishing persons who may be found trespassing on the mines." The preamble to this act asserts the title to these mines to belong to the state of Georgia; and by its provisions twenty thousand dollars are appropriated, and placed at the disposal of the governor to enable him to take possession of those mines; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia at hard labour, for the Cherokee Indians to work these mines. And the bill alleges that under the laws of the state in relation to the mines, the governor has stationed at the mines an armed force who are employed in restraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. These can be considered in no other light than as acts of trespass; and may be treated as acts of the state; and not of the individuals employed as the agents. Whoever authorises or commands an act to be done may be considered a principal, and held responsible, if he can be made a party to a suit: as the state of Georgia may undoubtedly be. It is not perceived on what ground the state can claim a right to the possession and use of these mines. The right of occupancy is secured to the Cherokees by treaty, and the state has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated, to extinguish, for the use of the state, the Indian title to the lands within her remaining limits, "as soon as it can be done peaceably and upon reasonable terms." But until this is done, the state can have no claim to the lands.
The very compact is a recognition by the state of a subsisting Indian right: and which may never be extinguished. The United States have not stipulated to extinguish it, until it can be done "peaceably and upon reasonable terms;" and whatever complaints the state of Georgia may have against the United States for the non-fulfilment of this compact, it cannot affect the right of the Cherokees. They have not stipulated to part with that right; and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of the territory.
Again, by the act of the 21st December 1830, surveyors are authorized to be appointed to enter upon the Cherokee territory and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on, with the lots on which such improvements may stand, and even excepting from such reservation improvements recently made near the gold mines.
This is not only repugnant to the treaties with the Cherokees, but directly in violation of the act of congress of 1802; the fifth section of which makes it an offence punishable with fine and imprisonment, to survey or attempt to survey or designate any of the boundaries, by marking trees or otherwise, of any land belonging to or secured by treaty to any Indian tribe: in the face of which, the law of Georgia authorises the entry upon, taking possession of, and surveying, and distributing by lottery, these lands guarantied by treaty to the Cherokee nation; and even gives authority to the governor to call out the military force, to protect the surveyors in the discharge of the duty assigned them.
These instances are sufficient to show a direct, and palpable infringement of the rights of property secured to the complainants by treaty, and in violation of the act of congress of 1802. These treaties and this law, are declared by the constitution to be the supreme law of the land: it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only very briefly to inquire whether the execution of them can be restrained by injunction according to the doctrine and practice of courts of equity.
According to the view which I have already taken of the case, I must consider the question of right as settled in favour of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are no grounds, therefore, upon which it can be necessary to send the cause for a trial at law of the right, before awarding an injunction; and the simple question is, whether such a case is made out by the bill, as to authorize the granting an injunction.
This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process, for the protection of rights; and is favourably viewed by courts of chancery, as its object is to prevent rather than redress injuries; and has latterly been more liberally awarded than formerly. 7 Ves. Jun. 307.
The bill contains charges of numerous trespasses by entering upon the lands of the complainants and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses when there is a clear and adequate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irreparable ruin. 6 Ves. 147. 7 Eden, 307. Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But, where from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the case on this subject, and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants. The mischief threatened is great and irreparable. 7 Johns. Cha. 330. It is one of the most beneficial powers of a court of equity to interpose and prevent an injury, before any has actually been suffered; and this is done by a bill, which is sometimes called a bill quia timet. Mitford, 120.
The doctrine of this court in the case of Osborne vs. The United States Bank, 9 Wheat. 338, fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the state of Ohio, to restrain him from executing a law of that state, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only question of doubt entertained by the court in that case was, as to issuing an injunction against an officer of the state to restrain him from doing an official act enjoined by statute, the state not being made a party. But even this was not deemed sufficient to deny the injunction. The court considered that the Ohio law was made for the avowed purpose of expelling the bank from the state, and depriving it of its chartered privileges: and they say, if the state could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunction; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the state of Ohio. In that case, the state could not be made a party according to the eleventh amendment of the constitution; the complainants being mere individuals and not a sovereign state. But, according to my view of the present case, the state of Georgia is properly made a party defendant; the complainants being a foreign state.
The laws of the state of Georgia in this case go as fully to the total destruction of the complainants" rights as did the law of Ohio to the destruction of the rights of the bank in that state; and an injunction is as fit and proper in this case to prevent the injury, as it was in that.
It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary to give full effect and operation to the injunction; and it is immaterial where the subject matter of the suit, which is only affected consequentially, is situated. This principle is fully recognized by this court in the case of Massie vs. Watts, 6 Cranch, 157; when this general rule is laid down, that in a case of fraud of trust or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. And reference is made to several cases in the English chancery recognizing the same principle. In the case of Penn vs. Lord Baltimore, 1 Ves. 444, a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction.
Upon the whole, I am of opinion,
1. That the Cherokees compose a foreign state within the sense and meaning of the constitution, and constitute a competent party of maintain a suit against the state of Georgia.
2. That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the state of Georgia referred to in this opinion.
3. That an injunction is a fit and proper writ to be issued, to prevent the further execution of such laws, and ought therefore to be awarded.
And I am authorised by my brother Story to say, that he concurs with me in this opinion.