'The congress shall have power to dispose of, and make all needful regulations and rules respecting the territory of the United States.' If the clause excluding Indians not taxed had not been inserted, or should be stricken out, the whole free Indian population of all the states would be included in the federal numbers, coextensively with the boundaries of all the states, included in this union. Cases may arise where the trade with a particular tribe may require to be regulated, and which might not have been embraced under the general description of the term nation, or it might at least have left the case somewhat doubtful; as the clause was intended to vest in congress the power to regulate all commercial intercourse, this phraseology was probably adopted to meet all possible cases; and the provision would have been imperfect, if the term Indian tribes had been omitted. It closes with a direction, that in all cases where transactions with any nation or tribe of Indians shall become necessary for the purposes of the ordinance, which cannot be done without interfering with the legislative rights of a state, the superintendent within whose district the same shall happen, shall act in conjunction with the authority of such state. The act of the 2d of December, 1830 is entitled 'an act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the state, and for punishing persons who may be found trespassing on the mines.' 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 honourable court. It is not negotiated between ministers on both sides representing their nations; the stipulations are wholly inconsistent with sovereignty; the Indians acknowledge their dependent character; hold the lands they occupy as an allotment of hunting grounds; give to congress the exclusive right of regulating their trade and managing all their affairs as they may think proper. And in a previous treaty with the same people in the year 1778, they are designated by the name of 'the Delaware nation.' Contributor Names Marshall, John (Judge) 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 the Cherokees compose a foreign state within the sense and meaning of the constitution, and constitute a competent party of maintain a suit against the state of Georgia. And as to that article in the treaty of Holston, and repeated in the treaty of Tellico, which guaranties to them their territory, since both those treaties refer to and confirm the treaty of Hopewell; on what principle can it be contended that the guarantee can go farther than to secure to them that right over the territory, which is conceded by the Hopewell treath; which interest is only that of hunting grounds. And if not citizens, they must be aliens or foreigners, and such must be the character of each individual belonging to the nation. But the court is asked to do more than decide on the title. Title U.S. Reports: Cherokee Nation vs. the State of Georgia, The, 30 U.S. (5 Pet.) 3 Laws U. S. 460. Can it then be supposed, that when using those terms we meant to include any others than those who were admitted into the community of nations, of whom most notoriously the Indians were no part? The treaty of Hope well does not even give them a name other than that of the Indians; not even nation or state: but regards them as what they were, a band of hunters, occupying as hunting grounds, just what territory we chose to allot them. Every public document speaks a different language, and admits their distinct existence and competence as nations; but placed in the same state of dependence, and calling for the same protection which existed before the war. The opinion of this court is of high authority in itself; and the judge who delivers it has a support as strong in moral influence over public opinion, as any human tribunal can impart. On the 15th March 1785, commissioners were appointed to treat with the Cherokees and other Indians, southward of them, within the limits of the United States, or who have been at war with them, for the purpose of making peace with them, and of receiving them into the favour and protection of the United States, &c. They were instructed to demand that all prisoners, negroes and other property taken during the war be given up; to inform the Indians of the great occurrences of the last war; of the extent of country relinquished by the late treaty of peace with Great Britain; to give notice to the governors of Virginia, North and South Carolina and Georgia, that they may attend if they think proper: and were authorized to expend four thousand dollars in making presents to the Indians; a matter well understood in making Indian treaties, but unknown at least in our treaties with foreign nations, princes or states, unless on the Barbary coast. The motion was made, after notice and a copy of the bill filed at the instance and under the authority of the Cherokee nation, had been served on the governor and attorney-general of the state of Georgia on the 27th December 1830, and the 1st of January 1831. The State of Georgia (defendant) attempted to implement laws meant to take land from the Cherokee Nation, despite federal treaties that gave the Cherokees rights to the land. In the case of Penn vs. Lord Baltimore, 1 Ves. This affords an instructive definition of the words nation and treaty. In July 1775, congress established a department of Indian affairs, to be conducted under the superintendence of commissioners. It is clear that it was intended to give them no other rights over the territory than what were needed by a race of hunters; and it is not easy to see how their advancement beyond that state of society could ever have been promoted, or, perhaps, permitted, consistently with the unquestioned rights of the states, or United States, over the territory within their limits. In conformity with this constitution, these departments have all been organized. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of government and sovereignty, does not cease on this account to be placed among the sovereigns who acknowledge no other power. Georgia Cherokee Nation Vs. Georgia & Worcester Vs. Georgia Background: Was a case that the Supreme Court vacated the conviction of Samuel Worcester and said that Georgia had a criminal regulation that prohibtited non-indians from being present on Indian lands 1. A recurrence to the various treaties made, with the Indian nations and tribes in different parts of the country, will fully illustrate this view of the relation in which our government has considered the Indians as standing. They never have been recognized as holding sovereignty over the territory they occupy. The difference between the provision in the constitution and that in the confederation on this subject appears to me to show very satisfactorily, that so far as related to trade and commerce with the Indians wherever found in tribes, whether within or without the limits of a state, was subject to the regulation of congress. And he puts to the senate this question: shall the United States stipulate solemnly to guarantee the new boundary which shall be arranged? They will at least enable me to judge of the true meaning and spirit of plain words, put into the forms of constitutional provisions, which this court in the great case of Sturges and Crowninshield say, 'is to be collected chiefly from its words. Vattel 2, § 4. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. Little is known of the country west of the Mississippi; and if accepted, the bill asserts it will be the grave not only of their civilization and Christianity, but of the nation itself. The Cherokee territory being within the chartered limits of Georgia, does not affect the question. The bill then proceeds to state various acts under the authority of the laws of Georgia, in defiance of the treaties referred to, and of the constitution of the United States, as expressed in the act of 1802; and that the state of Georgia has declared its determination to continue to enforce these laws so long as the complainants shall continue to occupy their territory. It is true: and the immediate object of that policy was so obvious as probably to have intercepted the view of ulterior consequences. It is not a case of meum and tuum in the judicial but in the political sense. The place, to which they removed under this last treaty, is said to be exposed to incursions of hostile Indians, and that they are 'engaged in constant scenes of killing and scalping, and have to wage a war of extermination with more powerful tribes, before whom they will ultimately fall.' The Indian territory is admitted to compose a part of the United States. There is one consequence that would necessarily flow from the recognition of this people as a state, which of itself must operate greatly against its admission. 330. 'That the commissioners have power to treat with the Indians;' 'to take to their assistance gentlemen of influence among the Indians.' 1, § 10) for a loan of money; would not an action be sustained in this court to enforce payment thereof? 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. ', This appears to me to partake too much of a mere verbal criticism, to draw after it the important conclusion that Indian tribes are not foreign nations. They relate to peace and war; the surrender of prisoners; the cession of territory; and the various subjects which are usually embraced in such contracts between sovereign nations. North Carolina made a partial cession of land, but a full one of her sovereignty and jurisdiction of all without her present limits in 1789. The Georgia law required that “white persons” only enter Cherokee land with a license and after having sworn a loyalty oath to Georgia. Johnson v. M'Intosh, 21 U.S. (8 Wheat.) The application of these acts to the provisions of the constitution will be considered hereafter. And the right of soil is held by the feeble tenure of hunting grounds, and acknowledged on all hands subject to a restriction to sell to no one but the United States, and for no use but that of Georgia. To pursue this subject a little more categorically. Whether it is the emanation from the people or the states, is a moot question, having no bearing on the supremacy of that supreme law which from a proper source has rightfully been imposed on us by sovereign power. In this case, the averment is, that the complainant is a foreign state. Unless the constitution has imparted to the Cherokees a national character never recognized under the confederation; and which if they ever enjoyed was surrendered by the treaty of Hopewell; they cannot be deemed in this court plaintiffs in such a case as this. The process of the courts of Georgia would have run into this as well as into any other part of the state. 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. The bill set forth the complainants to be 'the Cherokee nation of Indians, a foreign state, not owing allegiance to the United States, nor to any state of this union, nor to any prince, potentate or state, other than their own. The clause reads thus, 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Rules and regulations respecting the territory of the United States; they necessarily include complete jurisdiction. 16, 17. The fifth article provides for the removal and punishment of citizens of the United States or other persons, not being Indians, who shall attempt to settle on the lands so allotted to the Indians; thereby not only surrendering the exclusive possession of these lands to this nation, but providing for the protection and enjoyment of such possession. This treaty is in the beginning called 'Article:' the word 'treaty' is only to be found in the concluding line, where it is called 'this definitive treaty.' That neither party shall protect in their respective states, servants, slaves, or criminals, fugitives from the other; but secure, and deliver them up. They have always been, and still are, considered by our laws as dependent tribes, governed by their own usages and chiefs; but placed under our protection, and subject to our coercion so far as the public safety required it, and no farther. That in pursuance of those laws the functionaries of Georgia have entered their territory, with an armed force, and put down all powers legislative, executive and judicial, exercised under the government of the Indians. Their relation to the United States resembles that of a ward to his guardian. What that territory was, the rights of soil, jurisdiction, and sovereignty claimed and exercised by the states and the old congress, has been already seen. B. 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. The twelfth article of the treaty of Hopewell contains a full recognition of the sovereign and independent character of the Cherokee nation. 4. 338, fully sustains the present application for an injunction. In Cherokee Nation v.Georgia, Principal Chief John Ross challenged Georgia’s right to exercise jurisdiction over the Cherokee Nation.The Supreme Court ultimately established a critically important precedent by deciding not to decide on the case.

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