[The Cherokee Nation vs. The State of Georgia.] in reconciling this theory with the title which the United States themselves assert to the untouched millions of acres which lie between their settlements and the Pacific ocean; over which their people have never even chased their game, nor seen them from the distant mountain tops. But whatever foundation there may be for this theory, so unintelligible to your complainants, and so entirely inconsistent with the title which they see asserted against the aborigines of this country, it is no longer true in point of fact with regard to these complainants; for they are no longer savages nor heathens in the hunter state. Under the promised "patronage, aid, and good neighbourhood" of the United States, they have become civilized, Christians, and agriculturists, and have no more land than is sufficient for their subsistence and that of their posterity, and this land they hold under repeated, solemn, and still subsisting guarantees by treaty with the United States. They do not mean to allege, that they have all become perfectly civilized, nor all public professors of Christianity, nor all agriculturists: but in all these respects they are willing that a comparison shall be instituted between them and their white brethren around them, and they are very little apprehensive of suffering by such comparison when instituted before this honourable court. If practising justice, and the doing to others as we would have them do unto us, be the tests of civilization and Christianity, and the proportion of the cultivators of the soil to the whole number of the population be the test of the agricultural character of a nation, with reference to the theory in question, they apprehend that they have at least as little reason as their white brethren around them to shrink from such tests. These complainants show farther unto your honours, that, by the constitution of the United States (to which they pray leave to refer as part of this bill), it is, among other things, provided, that all treaties made, or to be made, under the authority of the United States, shall compose a part of the supreme law of the land, and it is further thereby declared, that the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. That by the same constitution it is further declared, that no state shall pass any law impairing the obligation of contracts; [The Cherokee Nation vs. The State of Georgia.] and these complainants aver, that all the treaties aforesaid are contracts of the highest character, and of the most solemn obligation. The same constitution further provides, that the congress of the United States shall have power to regulate commerce with the Indian tribes; a power which, from its nature, is exclusive, and consequently forbids all interference by any one of the states. These complainants further show unto your honours, that, in execution of this latter power, the congress of the United States have, from time to time, passed various acts for the regulation of that commerce, and among others the act of 1802, "to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers;" to all of which these complainants beg leave to refer, and to pray that they also may be taken as part of this bill. The great object of these laws is to consecrate the boundary arranged by treaty between the Indians and the citizens of the United States; and every provision is marked with the clearest recognition of the sovereignty of the Indians, and their exclusive right to give and to execute the law within that boundary. These complainants show farther unto your honours, that, in violation of these treaties of the constitution of the United States, and of the act of congress aforesaid, the state of Georgia, one of the United States of America, 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 laws of this state over the same, and for other purposes;" a copy of which act, authenticated under the seal of the said state, these defendants herewith exhibit, and pray that it may be taken and considered as a part of their bill. 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, [The Cherokee Nation vs. The State of Georgia.] 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 1820 on this subject;" of which last act a copy, duly authenticated, is also herewith exhibited, and these complainants pray that it may be taken and considered as a part of their bill. That by these laws the state of Georgia professes to parcel out the territory, which belongs exclusively to these complainants, and is guarantied to them by the aforesaid treaties, among the several counties named in the title of the lands; to extend all the laws of Georgia, both civil and criminal, over the whole of the said territory; to abolish all the Cherokee laws and ordinances therein; and to declare that in all cases of indictment and civil suits, it shall not be lawful for the defendant Cherokee to justify under any of these laws; and the courts of the state are forbidden to permit those laws to be given in evidence; to make it unlawful for the Cherokees to attempt to prevent the individuals of their own nation from enrolling for emigration, under the penalty of indictment and punishment before the state courts of Georgia; to make it unlawful in the Cherokee nation to prevent the individuals of that nation from selling or ceding their lands to the United States, for the use of the state of Georgia (whereas your complainants aver, that, by the Cherokee laws, there is no such thing as individual title to land in the Cherokee country; but the whole of these lands, according to their laws, belong to the entire nation, as a nation, and can be sold or ceded by them only in their national capacity); to make it murder in the executive, ministerial, or judicial officers of the Cherokee nation to inflict sentence of death, though in conformity with their own laws, and declaring all those officers, so concerned in carrying their own laws into effect, principals, and subjecting them all to indictment therefor and death by hanging; extending the jurisdiction of the justices of peace of the state of Georgia into the Cherokee territory, and authorising the officers who shall carry their process for service, to call out the militia of the state to overcome resistance; and finally, [The Cherokee Nation vs. The State of Georgia.] 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. These complainants aver that both these laws of the state of Georgia are null and void, because they are repugnant to the aforesaid treaties, which are yet subsisting and in full force between the United States and the Cherokee nation; because they are also repugnant to the constitution of the United States, in the provisions before referred to as contained in that instrument; and because they are repugnant to a law of the United States, to wit the law before mentioned as having been passed in the year 1802, entitled, "an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers." These complainants further show unto your honours, that, by the aforesaid treaty of Hopewell, the Cherokees acknowledged themselves to be under the protection of the United States of America, and of no other sovereign whatever. That a number of white men, citizens of the United States, having intruded into the Indian territory, beyond the boundary established by that treaty, president Washington, in his message before mentioned to the senate of the United States, adverting to that fact, declared it to be his determination to execute the power entrusted to him by the constitution of the United States, to carry that treaty into faithful execution by the removal of the white intruders, unless a new boundary should be arranged by treaty, excluding from the Indian territory those intrusive settlements; thereby avowing his opinion that, as the president of the United States, he possessed the power, and was constrained by his official duty to enforce, in behalf of the Cherokees, the protection secured to them by that treaty. These complainants show farther unto your honours, that by the second article of the treaty of Holston, before referred to, the Cherokee nation again acknowledged themselves to be under the protection of the United States of America, and of no other sovereign whatsoever; and stipulated that they would not hold any treaty with any foreign power, individual state, [The Cherokee Nation vs. The State of Georgia.] or with individuals of any state; a stipulation with which they have faithfully complied on their part, and that protection has been, in the main, extended to them, as well as was perhaps practicable, down to the year 1829. They show farther unto your honours, that they are informed and believe, that, in the year 1802, the state of Georgia ceded to the United States a large body of lands alleged to be within her chartered limits, upon several conditions, one of which was, that the United States would extinguish, for the use of Georgia, the Indian title to the lands within her remaining limits, "as soon as it could be done peaceably, and on reasonable terms;" the state of Georgia thus admitting that the Indian title was a subsisting title, which remained to be extinguished, and that it could be properly extinguished only peaceably and on reasonable terms, by the United States. This stipulation must be considered as referring to the uniform practice which had always prevailed in extinguishing that title, and to be construed and expounded by that practice; and that uniform practice had been to extinguish the Indian title by peaceable treaties held with the Indian nations in their national character; in which terms were offered, accepted, rejected, or modified, at the pleasure of those nations, nothing being forced upon them. That the Cherokee nation went on amicably to meet the wishes of the United States and of the state of Georgia, by ceding, from time to time, as much of their lands as they could spare, until, by the cession of 1819, 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. That the state of Georgia; although she already possesses millions of acres more than her people can cultivate, becoming impatient for the lands owned by your complainants, and forgetting her own stipulation with the United States that the Indian title was to be extinguished peaceably and on reasonable terms; pressed upon the United States (as your complainants are informed and believe) the obligation of extinguishing the title at once, with an intimation that she expected the application of force to the Indians, if necessary for the accomplishment of her object, and with a menace that if the United States withheld it, she would herself apply that force and expel your complainants from their |