[The Cherokee Nation vs. The State of Georgia.] destruction and extinction. The legislation of Georgia proposes to annihilate them, as its very end and aim; the acts already done under it are in furtherance of that purpose, and those which are further menaced will be its consummation. The laws of Georgia profess no other object; they are effectually conceived for this. If those laws be fully executed, there will be no Cherokee boundary, no Cherokee nation, no Cherokee lands, no Cherokee treaties, no laws of the United States in the case. They will all be swept out of existence together, leaving nothing but the monuments in our history of the enormous injustice that has been practised towards a friendly nation. These laws of Georgia operate upon the individual Cherokees as well as upon the nation. They are virtually made outlaws, neither citizens nor aliens, nor competent to be witnesses in courts of justice. They operate also upon their property, and upon the, rights and privileges declared for them by the laws of the United States. Is not this, then, a case or controversy of judicial cognizance? The bill sets forth a number of individual instances of the exercise of the unjust authority. Would they not, upon the complaint of individuals, be the subject of judicial cognizance? Would not the questions to be presented, discussed, and decided, be precisely the same as they now are? As questions of property, as personal privileges, or as corporate privileges, they are matters of judgment purely and strictly, without any admixture whatever of political or diplomatic considerations, and they have become a case, or subject of a suit, by the actual perpetration of injury and the menace of its repetition. They are questions upon the laws of the United States, in suits against citizens of the United States; and if it be necessary still further to examine the ground of complaint, it will be found that it is one of every day judicial cognizance, namely, that the laws of Georgia are unconstitutional and void. Is not the character of the aggregate the same as that of the particulars of which it is composed? Is there any thing in the process of aggregation to alter it? The constitution of the United States gives no colour to such a distinction. It applies the same description of case or controversy to bodies [The Cherokee Nation vs. The State of Georgia.] and to individuals. Judicial decisions give it no countenance, but the contrary. Jurisdiction is entertained of suits between states, as in the instance now pending. In the case between states there must always be individual interests involved with those of the state. Jurisdiction is entertained of suits by corporate bodies. Osburne vs. Bank of the United States, 9 Wheaton, 733. To what forum (of those belonging to the United States) the resort is to be had, depends upon the parties. The federal jurisdiction depends upon the nature of the case or question. If that be such, that it might be here by an individual, under the twenty-fifth section of the judiciary act, by appeal; it may be brought here originally by a state. It might be that, in fact, the present was the only mode in which the protection of the United States judiciary could be obtained, or in which it could be called upon to vindicate the majesty of the laws and treaties. The nature of the Cherokee institutions and polity, as to the tenure of land, presented a difficulty on the one side. The determination of the authorities and tribunals of the state of Georgia not to permit a suit to reach a stage where a writ of error could be made available, was at present an insuperable difficulty on the other. If redress could not be afforded in the mode now proposed, they might all, like Tassels, suffer final and irreparable infliction while waiting for the time of hearing before this court. The complainants, then, come here upon the ground of the violation of a legal right, and that, he submitted, was a case or controversy. They do not present an abstract question. They do not present a political question. They do not come to demand in general terms the fulfilment of a treaty, nor to ask this court to enforce the execution of an active article. They do not come to claim any thing adversely to the United States, nor to ask this court to settle questions between the high contracting parties. They ask for redress and protection against wrongdoers in the accustomed legal way, and they vouch the treaties as the evidence of their rights. 4. Is such a case presented by the bill as entitles the complainants to the specific remedy of injunction. For the purpose of this inquiry, in its present stage, all the averments of the bill are to be taken to be true. [The Cherokee Nation vs. The State of Georgia.] An injunction is the process of equity to restrain, where restraint is necessary, to prevent irreparable mischief; for which there is no adequate redress at law. Eden on Injunctions, 1, 209. It is granted to hold a fund, until a decision can be had of a claim upon it. State of Georgia vs. Brailsford, 2 Dallas, 402. An in In this court there is a decision directly applicable. junction may be issued to restrain a person who is an officer of a state from performing an act enjoined by an unconstitutional law of the state. Osburne vs. Bank of the United States, 9 Wheaton, 733. Mr Sergeant referred particularly to the argument of counsel, 748, and the opinion of the court by the chief justice, 838, 9. This case, in the argument and decision, was full to the present purpose, and was an adequate and sufficient authority for the injunction in the present case. The subject of complaint was the same-an unconstitutional law. The object was the same-to restrain its execution. The state of things, calling for relief, was the same, except that here the threatened danger was far greater and more urgent. Here, as there, the property, the franchises, rights and privileges of the complainants were menaced. Perhaps it might be suggested that the complaint related to matters out of the United States, but within the Indian nation, and therefore beyond the limits of the jurisdiction of the court. It was not necessary to examine very particularly the foundation in fact of such a suggestion. Among the acts stated, however, it would be remarked, was that of drawing the complainants to tribunals within the United States, to which they were not amenable. But, independently of this, there was a very satisfactory answer. A court of equity does not regard the situation of the subject matter in dispute, but considers only the equities arising from the parties. It has enjoined a party from proceeding in a foreign court. Eden, 101, 2, 3. Wharton vs. May, 5 Ves. 27. Upon the same point there is a clear authority in this court. In Massie vs. Watts, 6 Cranch, 148, it was decided, that a court of equity has jurisdiction, in personam, in cases involving trust, contract, or fraud, wherever the person of the defendant is even casually to be found within its jurisdiction; although it may be unable to enforce its decree in rem, the property [The Cherokee Nation vs. The State of Georgia.] in controversy being out of its jurisdiction. This was a case involving contract. He deemed it unnecessary to trouble the court further upon this point. Mr Wirt spoke to the following effect: The complainants and their counsel are fully aware of the delicacy of this question. They feel all the difficulties and embarrassments, judicial and political, which surround it. They have thought it their duty, therefore, to weigh the measure well, in all its aspects, in advance. They have not come hither rashly and unadvisedly. The complainants have not been permitted to proceed on the opinion of any single individual of the profession. They have been required to consult, and they have accordingly consulted, several of the most enlightened and eminent jurists of this country, residing in different and distant parts of the continent; and it was not until the perfect concurrence of them all had been ascertained, on all the points involved in this motion, that the resolution was taken to bring it before the court. These jurists unite in the opinion that the laws of Georgia, here in question, are unconstitutional, as being repugnant to the constitution, laws, and treaties of the United States; that this court has perfect jurisdiction on the subject, and may award the injunction which is prayed; and that in the exercise of this jurisdiction they stand, of right and duty, free of all control or influence from any other department of the government. With such a unanimity of opinion, no other course of duty remained for us but to bring this subject beforethe court. The fact of this previous consultation is mentioned with no weak expectation that it will influence the decision of this court. We know too well the character of this tribunal, to entertain any such vain and idle expectation. We mention it to acquit ourselves of all rashness and inconsiderateness in taking this step: to satisfy your honours that we know too well what is due to our country and to this high tribunal, to have been guilty of the levity and folly of acting on this solemn subject as on a professional matter of every day's occurrence. Even after all this precaution; all this previous deliberation and consultation, we approach the subject with [The Cherokee Nation vs. The State of Georgia.] great anxiety; for we perceive, and it would be a vain attempt to disguise it, the delicate and painful situation in which the motion cannot fail to place this honourable court. We say nothing of our own responsibility on the occasion. This we are content to bear. But for the sake of the court, if we could have perceived any other course of moral or professional conduct that remained for us, than to do our duty and to leave the issue to Providence, we should not have troubled your honours with this motion. It is best, however, that the question should be decided and put to rest; for so long as the complainants shall be instructed that they have relief here, they cannot rest contented until the experiment shall be made. If your honours believe that you can give them relief and shall give it, we have a firm belief that you will be sustained by the moral power of the American community, and that all doubt and resistance will disappear. If, on the other hand, you shall decide that you have not the jurisdiction which we claim; however much we must regret it, we shall bow with respect to your decision, and the complainants will learn that they must look to some other quarter for the redress of their grievances; though to what other quarter on this earth they can look, with any shadow of hope, God only knows. They have not come to you, in the first instance, with their complaints. They have tried the quarter from which relief was most naturally to have been expected; the quarter to which their past experience had taught them to look with confidence, and to which they have never looked in vain until within the last two years. They have tried that quarter, and they have failed. They have come to you now; because without your aid they have found, as they allege in their bill, that they are wholly remediless. May it please your honours, this ancient people, the Cherokee nation, a nation far more ancient than ourselves, and, in all probability far more ancient than the mixed Saxon and Norman race that people the land of our fathers, present themselves to you as a separate, sovereign state. They complain that a state of this union has invaded their rights of person and of property, by a species of legislative warfare, in violation of the treaties, the constitution, and the laws of the United States. |