Tellico, on the 25th day of October, 1805; at Tellico, on the 27th day of October, 1805; at Washington city, on the 7th day of January, 1805; at Washington city, on the 22d day of March, 1816; at the Chickasaw Council House, on the 14th day of September, 1816; at the the Cherokee Agency, on the 8th day of July, 1817; and at Washington city, on the 22d day of February, 1819: all which treaties have been ratified by the Senate of the United States of America; and, by which treaties, the United States of America, acknowledge · the said Cherokee Nation to be a Sovereign Nation, authorized to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several States composing the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occupied by the Cherokee Nation, on the east of the Mississippi, has been solemnly guaranteed to them; all of which treaties are existing treaties at this day, and in full force.

This plea was overruled by the Court. And the prisoner, being arraigned, pleaded not guilty. The jury found a verdict against him, and the Court sentenced him to hard labor, in the penitentiary, for the term of four years.

By overruling this plea, the Court decided that the matter it contained was not a bar to the action. The plea, therefore, must be examined for the purpose of determining whether it makes a case which brings the party within the provisions of the 25th section of the "Act to establish the judicial courts of the United States."

The plea avers that the residence, charged in the indictment, was under the authority of the President of the United States, and with the permission and approval of the Cherokee Nation. That the treaties subsisting between the United States and the Cherokees, acknowledge their right as a sovereign nation to govern themselves and all persons who have settled within their territory, free from any right of legislative interference by the several States, composing the United States of America. That the act under which the prosecution was instituted, is repugnant to the said treaties, and is, therefore, unconstitutional and void. That the said act is, also, unconstitutional; because it interferes with, and attempts to regulate and control, the intercourse with the Cherokee Nation, which belongs, exclusively, to Congress; and, because, also, it is repugnant to the statute of the U. States, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers."

Let the averments of this plea be compared with the 25th section of the Judicial Act.

By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several States composing the Union of the U. States; and it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the Governor of a State, or from some one duly authorized thereto, by the President of the United States; all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said Nation, That section enumerates the cases in which the final and so, as aforesaid, held by them, under the guaranty judgment or decree of a State Court may be revised in of the United States; that, for those acts, the defendant the Supreme Court of the United States. These are, is not amenable to the laws of Georgia, nor to the juris-"where is drawn in question the validity of a treaty, diction of the courts of the said State; and that the laws or statute of, or an authority exercised under, the Unitof the State of Georgia, which profess to add the said ed States, and the decision is against their validity; or territory to the several adjacent counties of the said where is drawn in question the validity of a statute of, State, and to extend the laws of Georgia over the said or an authority exercised under, any State, on the territory, and persons inhabiting the same; and, in par- ground of their being repugnant to the Constitution, ticular, the act on which this indictment vs. this defen- treaties or laws of the United States, and the decision is dant is grounded, to wit: "An act entitled an act to pre- in favor of such their validity; or where is drawn in vent the exercise of assumed and arbitrary power, by question the construction of any clause of the Constituall persons, under pretext of authority from the Cher- tion, or of a treaty, or statute of, or commission held unokee Indians, and their laws, and to prevent white per- der, the United States, and the decision is against the sons from residing within that part of the chartered li- title, right, privilege, or exemption, specially set up or mits of Georgia, occupied by the Cherokee Indians, claimed by either party, under such clause of the said and to provide a guard for the protection of the gold Constitution, treaty, statute or commission." mines, and to enforce the laws of the State within the aforesaid territory," are repugnant to the aforesaid treaties, which, according to the Constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between the aforesaid Cherokee Nation, and the said United States of America, as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control, the intercourse with the said Cherokee Nation, which, by the said Constitution, belongs exclusively to the Congress of the United States; and because the said laws are repugnant to the statute of the United States, passed on the day of March, 1802, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:" and that, therefore, this court has no jurisdiction to cause this defendant to make further, or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or of fences alleged in the bill of indictment, or any of them: And, therefore, this defendant prays judgment, whether he shall be held bound to answer further to said indictment."

The indictment and plea, in this case, draw in question, we think, the validity of the treaties made by the U. States with the Cherokee Indians. If not so, their construction is certainly drawn in question; and the decision has been, if not against their validity"against the right, privilege, or exemption, specially set up and claimed under them." They also draw into question the validity of a statute of the State of Georgia, "on the ground of its being repugnant to the constitution, treaties, and laws of the U. States, and the decision is in favor of its validity."

It is, then, we think, too clear for controversy, that the act of Congress, by which this Court is constituted, has given it the power, and, of course, imposed on it the duty of exercising jurisdiction in this case. This duty, however unpleasant, cannot be avoided. Those who fill the judicial department have no discretion in selecting the subjects to be brought before them. We must examine the defence set up in this plea. We must inquire and decide whether the act of the Legislature of Georgia, under which the plaintiff in error has been prosecuted and condemned, be consistent with, or repugnant to, the constitution, laws, and treaties, of the U. States.

It has been said at the bar, that the acts of the Legislature of Georgia, seize on the whole Cherokee country, parcel it out among the neighboring counties

THE CHEROKEE CASE-CHIEF JUSTICE MARSHALL'S OPINION.

Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects, who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport generally to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements After lying concealed for a series of ages, the enter-made on the sea coast, or the companies under whom prize of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.

This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only "on just cause." The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war. The charter to William Penn contains the following recital: "and because, in so remote a country, near so many barbarous nations, the incursions, as well of the savages themselves as of other enemies, pirates and robbers, may probably be feared, therefore we have given," &c. The instrument then confers the power of war.

sure.

The same clause is introduced into the charter to Lord Baltimore.

on the part of the crown, to interfere with the internal affairs of the Indians, farther than keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The King purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surren der of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

The general views of Great Britain, with regard to the Indians, were detailed by Mr. Stuart, superintend These barbarous nations whose incursions were fear-ent of Indian affairs, in a speech delivered at Mobile, in ed, and to repel whose incursions the power to make the presence of several persons of distinction, soon after war was given, were surely not considered as the sub- the peace of 1763. Towards the conclusion he says, jects of Penn, or occupying his lands during his plea- "lastly, I inform you, that it is the King's order to all his governors and subjects to treat the Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly all individuals are prohibited from purchasing any of your lands; but, as you know, that your white brethren cannot feed you when you visit them, unless you give them grounds to plant, it is expected that you will cede lands to the King for that purpose. But, whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settle. ment permitted to be made upon them. As you may be assured that all treaties with you will be faithfully kept, so it is expected that you, also, will be careful strictly to observe them."

The charter to Georgia professes to be granted for the charitable purposes of enabling poor subjects to gain a comfortable subsistence by cultivating lands in the American provinces, "at present waste and desolate." It recites, "and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war, by the neighboring savages, was laid waste by fire and sword, and great numbers of English inhabitants miserably massacred; and our loving subjects who now inhabit there, by reason of the smallness of their numbers, will, in case of any new war, be exposed to the like calamities, inasmuch as their whole southern frontier continueth unsettled, and lieth open to the said savages."

These motives for planting the new colony are incom- The proclamation issued by the King of Great Brit patible with the lofty ideas of granting the soil, and all ain, in 1763, soon after the ratification of the articles of its inhabitants, from sea to sea. They demonstrate the peace, forbids the governors of any of the colonies to truth, that these grants asserted a title against Euro- grant warrants of survey; or pass patents upon any peans only, and were considered as blank paper so far lands whatever, which not having been ceded to, or puras the rights of the natives were concerned. The pow-chased by us (the King) as aforesaid, are reserved to the er of war is given only for defence, not for conquest.

said Indians, or any of them.

The proclamation proceeds "and we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve, under our sovereignty,

The charters contain passages showing one of their objects to be civilization of the Indians, and their conversion to Christianity-objects to be accomplished by conciliating conduct, and good example; not by exter-protection, and dominion, for the use of the said Indians, mination.

all the lands and territories" "lying to the westward of the sources of the rivers which fall into the sea, from the west and north-west as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the above lands above reserved, without our special leave and license for that purpose first obtained."

"And we do further strictly enjoin and require all persons whatever, who have, either wilfully or inadvert ently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements."

The actual state of things, and the practice of European nations, on so much of the American continent as lies between the Mississippi and the Atlantic, explain their claims and the charters they granted. Their pretensions unavoidably interfered with each other, though the discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery, was the subject of unceasing contest. Bloody conflicts arose between them, which gave importance and security to the neighboring nations. Fierce and warlike in their character, they might be formidable enemies, or effective friends. Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The Eng. lish, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty, and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self-government acknowledged, they were willing to profess Such was the policy of Great Britain towards the dependence on the Power which furnished supplies of Indian nations inhabiting the territory from which she which they were in absolute need, and restrained dan-excluded all other Europeans; such her claims, and such gerous intruders from entering their country; and this her practical exposition of the charters she had grantwas probably the sense in which the term was under-ed; she considered them as nations capable of maintainstood by them.

Certain it is, that our history furnishes no examples from the first settlement of our country, of any attempt,

A proclamation, issued by Governor Gage, in 1772, contains the following passage: "Whereas many persons, contrary to the positive orders of the King, upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as a barrier between the whites and said nations;" particularly on the Ouabache, the proclamation orders such persons to quit these countries without delay."

ing the relations of peace and war; and governing themselves under her protection; and she made treaties with them, the obligation of which she acknowledged.

1832.]

THE CHEROKEE CASE-CHIEF JUSTICE MARSHALL'S OPINION.

This was the settled state of things when the war of our Revolution commenced. The influence of our enemy was established; her resources enabled her to keep up that influence; and the colonists had much cause for the apprehension that the Indian nations would, as the allies of Great Britain, add their arms to hers. This, as was to be expected, became an object of great solicitude to Congress. Far from advancing a claim to their lands, or asserting any right of dominion over them, Congress resolved that the securing and preserving the friendship of the Indian nations, appears to be a subject of the utmost moment to these colonies."

The early journals of Congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments, in the name and on behalf of the united colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions."

The most strenuous exertions were made to procure those supplies on which Indian friendship was supposed to depend; and every thing which might excite hostility was avoided.

The first treaty was made with the Delawares, in September, 1778.

The language of equality in which it is drawn, evinces the temper with which the negotiation was undertaken, and the opinion which then prevailed in the United States.

1st. That all offences or acts of hostility, by one or either of the contracting parties against the other, be mutually forgiven, and buried in the depth of oblivion, never more to be had in remembrance.

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The parties further agree that other tribes, friendly to the interest of the United States, may be invited to form a State, whereof the Delaware nation shall be the head and have a representation in Congress.

This treaty, in its language, and in its provisions, is formed, as near as may be, on the models of treaties between the crowned heads of Europe.

The 6th article shows how Congress then treated the injurious calumny of cherishing designs unfriendly to the political and civil rights of the Indians.

During the war of the Revolution, the Cherokees took part with the British. After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the war continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to impress on the Cherokees the same respect for Congress which was before felt for the King of Great Britain. This may account for the language of the treaty of Hopewell. There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.

The treaty is introduced with the declaration, that "commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favor and protection of the United States of America, on the following conditions.”

When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: Did the "2d. That a perpetual peace and friendship, shall, Cherokees come to the seat of the American Governfrom henceforth, take place and subsist between the ment to solicit peace; or, did the American commissioncontracting parties aforesaid through all succeeding ge-ers go to them to obtain it? The treaty was made at nerations: and if either of the parties are engaged in a Hopewell, not at New York. The word "give" then, just and necessary war, with any other nation or nations, has no real importance attached to it. that then each shall assist the other, in due proportion to their abilities, till their enemies are brought to reasonable terms of accommodation," &c.

"3d. The third article stipulates, among other things, a free passage for the American troops through the Delaware nation, and engages that they shall be furnished with provisions and other necessaries at their value.

The first and second articles stipulate for the mutual restoration of prisoners, and are of course equal.

The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power.

their connexion with those powers; and its true meaning is discerned in their relative situation.

This stipulation is found in Indian treaties, generally. It was introduced into their treaties with Great Britain; and may probably be found in those with other Europe"4th. For the better security of the peace and friend-an powers. Its origin may be traced to the nature of ship now entered into by the contracting parties against all infractions of the same by the citizens of either party, to the prejudice of the other, neither party shall proceed to the infliction of punishments on the citizens of the other, otherwise than by securing the offender or the offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be had by judges or juries of both parties, as near as can be to the laws, customs, and usages of the contracting parties, and natural justice," &c.

5th. The 5th article regulates the trade between the contracting parties, in a manner entirely equal.

6th. The 6th article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United States, by their enemies, and from the imputation of which Congress was then peculiarly anxious to free the Government. It is in these words: "Whereas the enemies of the United States have endeavored, by every artifice in their power, to possess the Indians in general with an opinion that it is the design of the States aforesaid, to extirpate the Indians, and take possession of their country: To obviate such false suggestion the United States do engage to guaranty to the aforesaid nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as the said Delaware Nation shall abide by, and hold fast, the chain of friendship now entered into."

The general law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular potentate, whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection, only what was beneficial to themselves-an engagement to punish aggressions on them. It involved practically no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbor, and receiving the advantages of that protection, without involving a surrender of their national character.

This is the true meaning of the stipulation; and is undoubtedly the sense in which it was made. Neither the British Government, nor the Cherokees, ever understood it otherwise.

The fourth article draws the boundary between the Indians and the citizens of the United States. But, in describing this boundary, the term “allotted," and the term "hunting-ground" are used.

The same stipulation entered into with the United | spects the management of all their affairs. The most States, is undoubtedly to be construed in the same man- important of these, is the cession of their lands, and semer. They receive the Cherokee nation into their fa- curity against intruders on them. Is it credible, that vor and protection. The Cherokees acknowledge they could have considered themselves as surrendering themselves to be under the protection of the United to the United States the right to dictate their future cesStates, and of no other power. Protection does not sions, and the terms on which they should be made? Or imply the destruction of the protected. The manner to compel their submission to the violence of disorderly in which this stipulation was understood by the Ameri- and licentious intruders? It is equally inconceivable that can government, is explained by the language and acts they could have supposed themselves, by a phrase thus of our first President. slipped into an article, on another and most interesting subject, to have divested themselves of the right of selfgovernment on subjects not connected with trade. Such a measure could not be "for their benefit and comfort,” or for "the prevention of injuries and oppression." Is it reasonable to suppose, that the Indians who could Such a construction would be inconsistent with the spinot write, and most probably could not read, who cer- rit of this and of all subsequent treaties; especially of tainly were not critical judges of our language, should those articles which recognize the right of the Cherodistinguish the word "allotted" from the words "mark-kees to declare hostilities, and to make war. It would ed out?" The actual subject of contract was the divid- convert a treaty of peace covertly into an act, annihiing line between the two nations, and their attention may lating the political existence of one of the parties. Had very well be supposed to have been confined to that such a result been intended, it would have been openly subject. When, in fact, they were ceding lands to the avowed. United States, and describing the extent of their cession, it may very well be supposed that they might not understand the term employed, as indicating, that instead of granting they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misunderstood is so apparent, results so necessarily from the whole transaction, that it must, we think, be taken in the sense in which it was most obviously used.

So with respect to the words "hunting grounds." Hunting was at that time the principal occupation of the Indians, and their land was more used for that purpose than for any other. It could not, however, be supposed, that any intention existed of restricting the full use of the lands they reserved.

To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, an occasional corn-field, interrupted, and gave some variety to the scene.

These terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never been supposed to imply a right in the British government to take their lands, or to interfere in their internal government.

The 5th article withdraws the protection of the United States from any citizen who has settled or shall settle on the lands allotted to the Indians, for their hunting grounds; and stipulates that, if he shall not remove within six months, the Indians may punish him.

The 6th and 7th articles stipulate for the punishment of the citizens of either country, who may commit offences on or against the citizens of the other. The only inference to be drawn from them is, that the United States considered the Cherokees as a nation.

The 9th article is in these words: "For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper."

To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction, which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable that Congress should possess it. The Commissioners brought forward the claim, with the profession that their motive was, "the benefit and comfort of the Indians, and the prevention of injuries or oppressions." This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but cannot be true, as re

This treaty contains a few terms capable of being used in a sense which could not have been intended at the time, and which is inconsistent with the practical construction which has always been put upon them; but its essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war, and ascertain the boundaries between them and the United States.

The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of Holstein was negociated in July, 1791. The existing Constitution of the United States had been then adopted, and the Government having more intrinsic capacity to enforce its just claims, was perhaps less mindful of high-sounding expressions denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of America, and all the individuals composing the Cherokee nation.

The second article repeats the important acknowledg ment, that the Cherokee nation is under the protection of the United States of America, and of no other sovereign whatsoever.

The meaning of this has been already explained. The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain; but the extinguishment of the British power in their neighborhood, and the establishment of that of the United States in its place, led naturally to the declaration on the part of the Cherokees, that they were under the protection of the United States, and of no other power. They assumed the relation with the United States which had before subsisted with Great Britain.

This relation was that of a nation claiming and receiving the protection of one more powerful; not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.

The third article contains a perfectly equal stipulation for the surrender of prisoners.

The fourth article declares, that "the boundary be tween the United States and the Cherokee nation shall be as follows: Beginning," &c. We hear no more of "allotments" or of "hunting grounds." A boundary is described between nation and nation, by mutual consent. The national character of each, the ability of each, to establish this boundary, is acknowledged by