leged chartered limits, and imposing a condition | be the grave not only of their civilization and that the Indian title should be peaceably ex- Christianity, but of the nation itself. tinguished, admitted the subsisting Indian It also alleges that the portion of the nation title. That cessions of territory have always who emigrated *under the patronage and [*10 been voluntarily made by the Indians in their sanction of the President of 1808 and 1809, and national character; and that cessions have been settled on the territory assigned to them on the made of as much land as could be spared, until Arkansas River, were afterwards required to the cession of 1819, "when they had reduced remove again; and that they did so under the their territory into as small a compass as their stipulations of a Treaty made in May, 1828. own convenience would bear, and they then The place to which they removed under this accordingly resolved to cede no more." The bill last treaty is said to be exposed to incursions then refers to the various applications of Geor- of hostile Indians, and that they are "engaged gia to the United States to extinguish the Indian in constant scenes of killing and scalping, and title by force, and her denial of the obligations have to wage a war of extermination with more of the treaties with the Cherokees; although powerful tribes, before whom they will ultiunder these treaties large additions to her dis- mately fall." They have, therefore, decidedly posable lands had been made, and states that rejected the offer of exchange. The bill then Presidents Monroe and Adams, in succession, proceeds to state various acts under the authorunderstanding the articles of cession and agree-ity of the laws of Georgia, in defiance of the ment between the State of Georgia and the treaties referred to and of the Constitution of United States in the year 1802 as binding the the United States as expressed in the Act of United States to extinguish the Indian title so 1802, and that the State of Georgia has desoon only as it could be done peaceably and on clared its determination to continue to enforce reasonable terms, refused, themselves, to apply 9*] 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 fulfill the guarantee given to them by the treaties. to 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 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 authorizing 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 neighboring 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 consecrated 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 these laws so long as the complainants shall continue to occupy their territory. But while these laws are enforced in a man ner 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 [*11 national sovereignty, their property, rights and liberties, guaranteed as these now are by so many treaties, to the repacity and injustice of the State of Georgia; or to arm themselves in defense 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 honor able 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 to 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 authorized 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 12*] *1828 and 1829 may, by the decree of this honorable court, be declared unconstitutional and void; and that the State of Georgia and all her officers, agents, and servants may be forever 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 honorable 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 honorable 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 follow ng 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 [*13 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 willfully cut down or deface any marked trees, or remove any landmarks 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." i Under this law it is stated that the landş 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 [*14 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 If courts were permitted to indulge their State of Georgia passed another Act, entitled, | sympathies, a case better calculated to excite "An Act to authorize the governor to take pos- them can scarcely be imagined. A people once session of the gold, silver, and other mines, ly- numerous, powerful, and truly independent, ing and being in that section of the chartered found by our ancestors in the quiet and unconlimits of Georgia commonly called the Cherokee trolled possession of an ample domain, gradualcountry, and those upon all other unappropriat-ly sinking beneath our superior policy, our arts ed 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 proceeding 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. The case was argued on the part of the complainants by Mr. Sergeant and Mr. Wirt. No counsel appeared for the State of Georgia. 15*] *For the complainants it was contended, 1. That the parties before the court were such as, under the Constitution, to give to this court original jurisdiction of the complaint made by the one against the other. 2. That such a case or controversy, of a judicial nature, was presented by the bill as to warrant and require the interposition of the authority of the court. 3. That the facts stated by the complainants exhibited such a case in equity as to entitle them to the specific remedy by the injunction prayed for in the bill. Mr. Chief Justice MARSHALL delivered the opinion of the court: 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 46 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 [*16 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? An 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. aggregate of aliens composing a State must, they say, be a foreign state. Each individual being foreign, the whole must be foreign. This bill is brought by the Cherokee Nation, This argument is imposing, but we must expraying an injunction to restrain the State of amine it more closely before we yield to it." Georgia from the execution of certain laws of The condition of the Indians in relation to the that State, which, as is alleged, go directly to United States is perhaps unlike that of any annihilate the Cherokees as a political society, other two people in existence. In the gen and to seize, for the use of Georgia, the lands eral, nations not owing a common allegiance of the nation which have been assured to them are foreign to each other. The term foreign by the United States in solemn treaties repeated-nation is, with strict propriety, applicable by ly made and still in force. either to the other. But the relation of the In 1831 THE CHEROKEE NATION V. THE STATE OF GEORGIA. 16 dians to the United States is marked by pecul- | States, and might furnish some reason for iar and cardinal distinctions which exist no- omitting to enumerate them among the parties where else. 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." 17* *The Indian Territory is admitted to compose a part of the United States. In all our maps, geographical treaties, 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 posses-ing to give the whole power of managing those sion 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 connection with 18*] 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 neighbors 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 In this clause they are as clearly contradistinguished 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 intro- [*19 duced 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. Intend 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 contradistinguishing 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 contradistinguishing 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 20*] 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 neighboring 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 savors 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 fut ure. 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. 21*] *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. The first of the questions necessarily resolves itself into two. 1. Are the Cherokees a State? 2. Are they a foreign state? 1. I cannot but think that there are strong reasons for doubting the applicability of the epithet State, to a people so low in the grade of organized society as our Indian tribes most generally are. I would not here be understood as speaking of the Cherokees under their present form of government, which certainly must be classed among the most approved forms of civil government. Whether it can be yet said to have received the consistency which entitles that people to admission into the family of nations is, I conceive, yet to be determined by the executive of these States. Until then I must think that we cannot recognize it as an existing State, under any other character [*22 than that which it has maintained hitherto as one of the Indian tribes or nations. There are great difficulties hanging over the question whether they can be considered as States under the judiciary article of the Constitution. 1. They never have been recognized as holding sovereignty over the territory they occupy. It is in vain now to inquire into the sufficiency of the principle that discovery gave the right of dominion over the country discovered. When the populous and civilized nations beyond the Cape of Good Hope were visited, the right of discovery was made the ground of an exclusive right to their trade, and confined to that limit. When the eastern coast of this continent, and especially the part we inhabit, was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government, the right was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverer. It cannot be questioned that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. From that source we derive our rights, and there is not an instance of a cession of land from an Indian na |