[The Cherokee Nation vs. The State of Georgia.] 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. 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 cases 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 [The Cherokee Nation vs. The State of Georgia.] 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 con [The Cherokee Nation vs. The State of Georgia.] tract 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 to 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. APPENDIX, No. I. THE following is one of the opinions referred to by Mr Wirt in his argument: being the opinion of CHANCELLOR KENT, on several questions propounded to him on behalf of the Cherokee nation of Indians. The following questions have been submitted to me by or on behalf of the Cherokee nation of Indians, for my opinion thereon, as counsel. 1. Is the act of the legislature of Georgia of the 19th of December 1829, which adds the territory lying within the chartered limits of Georgia, and now in the occupancy of the Cherokee Indians, to the counties of Carroll, De Kalb, Gwinett, Hall, and Habersham, and extends the laws of the state over the same, and annuls all laws and ordinances made by the Cherokee nation of Indians;" a valid and constitutional act, within the purview of the constitution and laws of the United States? 2. If not constitutional, can the Cherokee nation of Indians maintain a suit founded on its violation of their rights, against the state of Georgia, in the supreme court of the United States: and can the court, upon the institution of such suit, lawfully inforce by process of injunction, the officers of Georgia from the execution of that law? 3. Is the construction given by the president of the United States to the treaties existing between the United States and the Cherokee nation of Indians, binding and conclusive upon the supreme court? 4. If the Cherokees be not a foreign state, in the sense of the constitution; can John Ross, as the principal chief of the Cherokee nation of Indians, and duly authorised by them to represent them and their rights in the supreme court, be enti [The Cherokee Nation vs. The State of Georgia.] tled to sue out from the circuit court of the United States, process of injunction against the officers of Georgia acting in execution of the said law? 5. Can any individual of the Cherokee nation of Indians, personally affected in his rights by the operation and execution of the said law, sue out such process, or maintain a suit in the circuit court of the United States for the district of Georgia, for a personal injury produced in the execution of the act of Georgia? 6. Has the supreme court appellate jurisdiction under the twenty-fifth section of the judiciary act of congress, in the case of a decision in the highest court of law and equity in Georgia, under the said act, in favour of its validity, as against the constitution and laws of the United States? I shall consider the questions in the order in which they have been stated. The act of the legislature of the state of Georgia, on which the first question arises, divides the Indian territory lying within its chartered limits into five parts by metes and bounds, and annexes the parts respectively to the five counties mentioned in the act. It then goes on and declares that all the laws both civil and criminal of the state are extended over the portions. of territory respectively; and that all persons residing within the same, shall, after the 1st day of June 1830, be subject to the operations of the laws, in the same manner as other citizens; that all laws, ordinances, orders and regulations of any kind whatever, made, passed or enacted by the Cherokee nation of Indians, in any way whatever, or by any authority whatever of said tribe, are null and void, and of no effect, as if the same had never existed; and that it shall not be lawful for any defendant to justify under the same, or give the same in evidence on the trial of any suit whatever: that it shall not be lawful for any person under colour of any rule, ordinance, law or custom of the Cherokee nation, to prevent or offer to prevent any Indian residing within the chartered limits of the state, from selling or ceding to the United States, for the use of the state of Georgia, the whole or any part of the said territory; and any person offending therein, shall be deemed guilty of a high misdemeanour The act provides |