[The Cherokee Nation vs. The State of Georgia.] their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding." Their sovereign power within their own territory; their authority to make, to administer, and to execute their own laws; to give titles and to resume them, to do, in short, what states or nations only can do; are here distinctly admitted. In Goodell vs. Jackson, in the court of errors in New York, the question was discussed as to the character of the individuals composing the Indian nations. They were decided to be aliens. If the subjects of a state be aliens, the state itself must be an alien state, a foreign state. In Holland vs. Pack, Peck's Reports, 151, the very question was directly presented and directly decided by the court of appeals of Tennessee in the year 1823. It was an action brought against a Cherokee innkeeper, residing in that part of the nation which lies within the limits of the state of Tennessee, for the loss of the goods of a guest. The question presented by the pleadings was, by what law the case was to be governed, the law of Tennessee or the law of the Cherokees. The court decided that the latter was to govern. In the opinion, which is full and elaborate, the whole subject is examined; and the conclusion pronounced by the court is, that the Cherokees are an independent nation, with the exclusive power of legislation within their own territory. This point, of the national character of the Cherokee Indians, is put to rest by two of the treaties, in terms which admit neither of doubt or controversy. The treaty of the 8th July 1817 (Art. 8) makes a provision for securing certain reserves of land to those of the Cherokees who might choose to become citizens of the United States. This provision is referred to and adopted by the treaty of 1819, article 2. It is too obvious to require a remark, that this stipulation necessarily characterises them as aliens, then in a state of alienage, or of allegiance to a foreign state, but capable of becoming citizens of the United States at their own election, and until that election should so incline them, of remaining in the condition in which they then were. How were they to become citizens? It could only be upon the terms prescribed by the naturalization laws of the United States, of renouncing their [The Cherokee Nation vs. The State of Georgia.] foreign allegiance. How could they renounce it if none such existed? It may not be amiss to add, that this provision applied to individuals and to reserves of land within the limits of states of this union. A list of them is appended to the treaty of 1819, with a description of their locality. It will be there found that the greater part of them were within the limits of the states. This review, upon the principles heretofore adopted in judgment, would seem to be sufficient of itself for a court sitting under the constitution and laws of the United States. But wherever the inquiry may be pursued the result will be the same. The Cherokee nation is a state. It has "its affairs and interests; it deliberates and takes resolutions in common; and becomes a moral person, having an understanding and a will, peculiar to itself; and is susceptible of obligations and laws." This is the very definition of a state, according to the most approved writers on public law. Grotius, b. 1, c. 1, §. 14. B. 3, c. 3, §. 2. Burlamaqui, vol. 2, p. 1, c. 4, §. 9. Vattel, b. 1, c. 1. It is a foreign state, for it is not a state of this union. It is no part of our body politic. The Cherokees have no influence in our affairs, and no control over our conduct; and we have none in theirs, save what is given by treaty, and that is by mutual stipulation between the entire bodies politic, in their aggregate capacity, as equal contracting parties. It is no objection to this that they are inferior or dependent allies. A state is still a state, though it may not be of the highest grade, or even though it may have surrendered some of the powers of sovereignty (Vattel, b. 1, c. 1, § 5 and 6): as a man is still a man, though mutilated and deprived of some of his limbs. Such an argument, indeed, is destitute of all colour of support, for it supposes that by entering into a treaty the very rights are given up which are reserved by the treaty. This is an absurdity. Is there in the constitution of the United States any thing to limit or alter this natural and unavoidable construction as applied to the question of jurisdiction? In other words, is it true that though "foreign states" to other intents, they are not "foreign states" within the terms of the provision for the judiciary? [The Cherokee Nation vs. The State of Georgia.] The only conceivable suggestion to the contrary, if any there be, must be derived from the third clause of the eighth section of the first article. Congress shall have power, it is there said, "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The argument may be, that what are here called "Indian tribes" are specified, because they are not comprehended in the words "foreign nations;" and therefore can not be considered as embraced by the words "foreign states," in the third article of the constitution. This, it will be observed, is a mere verbal criticism, which, if allowed to prove any thing, would prove far too much. The provisions are framed for different purposes, and with different views, and are found in different parts of the constitution. The one relates to the legislature, the other to the judiciary. There is no incompatibility between them, nor is there any difficulty at all in letting them stand together, inasmuch as they do not belong to the same subject. We know of In what sense is the word "tribes" to be considered as here used? Its original and most appropriate meaning is a subdivision of a state, nation, or community, forming a constituent part of it, but set apart or distinguished for the more convenient management of its affairs. Thus, Rome was divided. into "tribes," in the first instance three, and finally thirty-five. Athens was divided into ten tribes. There were the twelve tribes of Israel, forming together one nation, under one head, until the revolt of the ten tribes, when they became two nations, and so continued until the ten were lost. The constitution cannot have used the word in this sense. no such subdivisions within the Indian nations; and if there had been, no one will suppose that the power to congress was only to deal with portions of the nations. Sometimes, it is true, this word is applied to wandering hordes, who have no territory; no fixed residence, and no organic structure. But this could not be affirmed of the Cherokee nation. They had a territory; they had fixed boundaries; they had laws and government; they were already parties to a treaty with the United States, and in that treaty were expressly denominated a "nation." Whatever might have been the habits of individuals, the nation had a local habitation, and sufficient stabi [The Cherokee Nation vs. The State of Georgia.] lity to be treated with as an organized community (a). Was it meant to be excluded from the power of congress? This word "tribes" will be found to occur frequently in the journals of the old congress, and especially in the report before referred to, of August 1787; where it is manifestly employed as synonymous or equivalent to "nations." If it be more comprehensive it might be used from greater caution, in order to cover the whole subject; to comprehend tribes, if any such there were, which were not nations. It would not, therefore, exclude those which were nations, but they would be embraced by both the words. So it has been construed in practice. But if this verbal argument have any weight, we shall be obliged by it to concede that wherever it happens that different words are used, though occurring in different parts of the constitution and on different branches of power, they must necessarily mean a different thing. Then it will follow, that "foreign state" and "foreign nation" are different-that the federal judiciary has no jurisdiction in the case of a "foreign nation," and that congress has no power to regulate commerce with a foreign state." In the tenth section of the first article, clause second (prohibiting the states from entering into alliances), the words employed are “foreign powers." This, upon the same principle, would exclude "foreign powers" from both the former articles. 66 The same argument would perhaps take away the treatymaking power with the Indians from the United States. A treaty cannot well be made with those who, according to the constitution, as thus understood, have no capacity to fulfil their engagements, or even to be bound by them. It would work out a result still more repugnant to what was certainly intended. If the use of the word "tribes" in the first article excludes the application of the words "foreign states" in the third, it must equally exclude the words "foreign powers" in the section just referred to (article first, section tenth, clause second). What follows? That the states individually are not prohibited from making compacts with (a) The present principal town of the Cherokee nation will be found mentioned in the earliest records of congress by the name of Chota. [The Cherokee Nation vs. The State of Georgia.] the Indians, because they are not "foreign powers." No one, it is believed, would contend for this. But has it ever been admitted as a sound rule of construction, justly applicable to the constitution, that a specification must necessarily restrain the general words which precede it, and can in no case be considered as merely redundant? There are repeated instances in the same section, where such a rule would be fatal to the sense. See clauses five, ten, thirteen, &c. It is submitted, however, that the process of verbal criticism is not the correct mode of dealing with a constitution of government, where the grants of power are necessarily made in a few words. It must be interpreted in a different way. Some weight must be allowed to the general intention and design of the instrument. The judicial power of the United States was intended to be coextensive with the legislative and executive, so as to form a government complete, within the range of its powers, in all its departments, and capable of independent existence. Osbourn vs. Bank of the United States, 9 Wheat. 818. The treaty-making power confessedly belongs, exclusively, to the United States. Treaties thus made are declared to be the supreme law of the land. "Cases arising under treaties" are, therefore, in express terms assigned by the article under consideration to the federal judiciary. The subject belongs to the United States tribunals, and not to the tribunals of the states. Of this, there can be no dispute. Why then suppose it to be excluded from the original jurisdiction of this court? A state of the union is a party, and it is the dignity of that party alone which entitles the case from its beginning to the attention of the highest tribunal. The character of the other party is in this respect of no importance. What reason can be assigned for an exclusion so contradictory? Why should the constitution which says expressly that, in all cases where a state is a party, the supreme court shall have original jurisdiction, be made to say by implication, that in this case, where a state is a party, it shall not have original jurisdiction? To what jurisdiction would they be referred. The same argument which took away the alien character of the nation would equally destroy the alien character of the individuals composing it. They certainly are |