The Cherokee Nation v. the State of Georgia

Decision Date01 January 1831
Citation8 L.Ed. 25,30 U.S. 1,5 Pet. 1
CourtU.S. Supreme Court

THIS case came before the court on a motion on behalf of the Cherokee nation of Indians for a subpoena, and for an injunction, to restrain the state of Georgia, the governor, attorney-general, judges, justices of the peace, sheriffs, deputy sheriffs, constables, and others the officers, agents, and servants of that state, from executing and enforcing the laws of Georgia or any of these laws, or serving proceess, or doing any thing towards the execution or enforcement of those laws, within the Cherokee territory, as designated by treaty between the United States and the Cherokee nation.

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 notice stated that the motion would be made in this court on Saturday, the 5th day of March 1831. The bill was signed by John Ross, principal chief of the Cherokee nation, and an affidavit, in the usual form, of the facts stated in the bill was annexed; which was sworn to before a justice of the peace of Richmond county, state of Georgia.

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.'

'That from time immemorial the Cherokee nation have composed a sovereign and independent state, and in this character have been repeatedly recognized, and still stand recognized by the United States, in the various treaties subsisting between their nation and the United States.'

That the Cherokees were the occupants and owners of the territory in which they now reside, before the first approach of the white men of Europe to the western continent; 'deriving their title from the Great Spirit, who is the common father of the human family, and to whom the whole earth belongs.' Composing the Cherokee nation, they and their ancestors have been and are the sole and exclusive masters of this territory, governed by their own laws, usages, and customs.

The bill states the grant, by a charter in 1732, of the country on this continent lying between the Savannah and Alatahama rivers, by George the Second, 'monarch of several islands on the eastern coast of the Atlantic,' the same country being then in the ownership of several distinct, sovereign, and independent nations of Indians, and amongst them the Cherokee nation.

The foundation of this charter, the bill states is asserted to be the right of discovery to the territory granted; a ship manned by the subjects of the king having, 'about two centuries and a half before, sailed along the coast of the western hemisphere, from the fifty-sixth to the thirty-eighth degree of north latitude, and looked upon the face of that coast without even landing on any part of it.' This right, as affecting the right of the Indian nation, the bill denies; and asserts that the whole length to which the right of discovery is claimed to extend among European nations is to give to the first discoverer the prior and exclusive right to purchase these lands from the Indian proprietors, against all other European sovereigns: to which principle the Indians have never assented; and which they deny to be a principle of the natural law of nations, or obligatory on them.

The bill alleges, that it never was claimed under the charter of George the Second, that the grantees had a right to disturb the self government of the Indians who were in possession of the country; and that, on the contrary, treaties were made by the first adventurers with the Indians, by which a part of the territory was acquired by them for a valuable consideration; and no pretension was ever made to set up the British laws in the country owned by the Indians. That various treaties have been, from time to time, made between the British colony in Georgia; between the state of Georgia, before her confederation with the other states; between the confederate states afterwards; and, finally, between the United States under their present constitution, and the Cherokee nation, as well as other nations of Indians: in all of which the Cherokee nation, and the other nations have been recognized as sovereign and independent states; possessing both the exclusive right to their territory, and the exclusive right of self government within that territory. That the various proceedings from time to time had by the congress of the United States under the articles of their confederation, as well as under the present constitution of the United States, in relation to the subject of the Indian nations; confirm the same view of the subject.

The bill proceeds to refer to the treaty concluded at Hopewell on the 28th November 1785, 'between the commissioners of the United States and head men and warriors of all the Cherokees;' the treaty of Holston of the 22d July 1791, 'between the president of the United States by his duly authorized commissioner, William Blount, and the chiefs and warriors of the Cherokee nation of Indians,' and the additional article of 17th November 1792, made at Philadelphia by Henry Knox, the secretary at war, acting on behalf of the United States; the treaty made at Philadelphia on the 26th June 1794; the treaties between the same parties made at Tellico 2d October 1790; on the 24th October 1804; on the 25th October 1805, and the 27th October 1805; the treaty at Washington on the 7th January 1806, with the proclamation of that convention by the president, and the elucidation of that convention of 11th September 1807; the treaty between the United States and the Cherokee nation made at the city of Washington on the 22d day of March 1816; another convention made at the same place, on the same day, by the same parties; a treaty made at the Cherokee agency on the 8th July 1807; and a treaty made at the city of Washington on the 27th February 1819: 'all of which treaties and conventions were duly ratified and confirmed by the senate of the United States, and became thenceforth, and still are, a part of the supreme law of the land.'

By those treaties the bill asserts the Cherokee nation of Indians are acknowledged and treated with as sovereign and independent states, within the boundary arranged by those treaties: and that the complainants are, within the boundary established by the treaty of 1719, sovereign and independent; with the right of self government, without any right of interference with the same on the part of any state of the United States. The bill calls the attention of the court to the particular provisions of those treaties, 'for the purpose of verifying the truth of the general principles deduced from them.'

The bill alleges, from the earliest intercourse between the United States and the Cherokee nation, an ardent desire has been evinced by the United States to lead the Cherokees to a greater degree of civilization. This is shown by the fourteenth article of the treaty of Holston; and by the course pursued by the United States in 1808, when a treaty was made, giving to a portion of the nation which preferred the hunter state a territory on the west of the Mississippi, in exchange for a part of the lower country of the Cherokees; and assurances were given by the president that those who chose to remain for the purpose of engaging in the pursuits of agricultural and civilized life, in the country they occupied, might rely 'on the patronage, aid and good neighbourhood of the United States.' The treaty of 8th July 1817 was made to carry those promises into effect; and in reliance on them a large cession of lands was thereby made: and in 1819, on the 27th February, another treaty was made, the preamble of which recites that a greater part of the Cherokee nation had expressed an earnest desire to remain on this side of the Mississippi, and were desirous to commence those measures which they deem necessary to the civilization and preservation of their nation; to give effect to which object, without delay, that treaty was declared to be made; and another large cession of their lands was, thereby, made by them to the United States.

By a reference to the several treaties, it will be seen that a fund is provided for the establishment of schools; and the bill asserts that great progress has been made by the Cherokees in civilization and in agriculture.

They have established a constitution and form of government, the leading features of which they have borrowed from that of the United States; dividing their government into three separate departments, legislative, executive and judicial. In conformity with this constitution, these departments have all been organized. They have formed a code of laws, civil and criminal, adapted to their situation; have erected courts to expound and apply those laws, and organized an executive to carry them into effect. They have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state, and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States.

Under the promised 'patronage and good neighbourhood' of the United States, a portion of the people of the nation have become civilized Christians and agriculturists; and the bill alleges that in these respects they are willing to submit to a comparison with their white brethren around them.

The bill claims for the Cherokee nation the benefit of the provision in the constitution; that treaties are the supreme law of the land; and all judges are bound thereby: of the declaration in the constitution, that no state shall...

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