Cherokee Removal…
(for removal)
1.
Andrew
Jackson
2.
White folks
from Georgia
(against removal)
3.
The
Supreme Court(John Marshall)
4.
The
Cherokee
SOURCE
1 Andrew Jackson's
Second Annual Message
It
gives me pleasure to announce to Congress that the benevolent policy of the
Government, steadily pursued for nearly thirty years, in relation to the removal
of the Indians beyond the white settlements is approaching to a happy
consummation. Two important tribes have accepted the provision made for their
removal at the last session of Congress, and it is believed that their example
will induce the remaining tribes also to seek the same obvious
advantages.
The
consequences of a speedy removal will be important to the United States, to
individual States, and to the Indians themselves. The pecuniary advantages which
it promises to the Government are the least of its recommendations. It puts an
end to all possible danger of collision between the authorities of the General
and State Governments on account of the Indians. It will place a dense and
civilized population in large tracts of country now occupied by a few savage
hunters. By opening the whole territory between Tennessee on the north and
Louisiana on the south to the settlement of the whites it will incalculably
strengthen the southwestern frontier and render the adjacent States strong
enough to repel future invasions without remote aid. It will relieve the whole
State of Mississippi and the western part of Alabama of Indian occupancy, and
enable those States to advance rapidly in population, wealth, and power. It will
separate the Indians from immediate contact with settlements of whites; free
them from the power of the States; enable them to pursue happiness in their own
way and under their own rude institutions; will retard the progress of decay,
which is lessening their numbers, and perhaps cause them gradually, under the
protection of the Government and through the influence of good counsels, to cast
off their savage habits and become an interesting, civilized, and Christian
community.
What
good man would prefer a country covered with forests and ranged by a few
thousand savages to our extensive Republic, studded with cities, towns, and
prosperous farms embellished with all the improvements which art can devise or
industry execute, occupied by more than 12,000,000 happy people, and filled with
all the blessings of liberty, civilization and religion?
The
present policy of the Government is but a continuation of the same progressive
change by a milder process. The tribes which occupied the countries now
constituting the Eastern States were annihilated or have melted away to make
room for the whites. The waves of population and civilization are rolling to the
westward, and we now propose to acquire the countries occupied by the red men of
the South and West by a fair exchange, and, at the expense of the United States,
to send them to land where their existence may be prolonged and perhaps made
perpetual. Doubtless it will be painful to leave the graves of their fathers;
but what do they more than our ancestors did or than our children are now doing?
To better their condition in an unknown land our forefathers left all that was
dear in earthly objects. Our children by thousands yearly leave the land of
their birth to seek new homes in distant regions. Does Humanity weep at these
painful separations from everything, animate and inanimate, with which the young
heart has become entwined? Far from it. It is rather a source of joy that our
country affords scope where our young population may range unconstrained in body
or in mind, developing the power and facilities of man in their highest
perfection. These remove hundreds and almost thousands of miles at their own
expense, purchase the lands they occupy, and support themselves at their new
homes from the moment of their arrival. Can it be cruel in this Government when,
by events which it can not control, the Indian is made discontented in his
ancient home to purchase his lands, to give him a new and extensive territory,
to pay the expense of his removal, and support him a year in his new abode? How
many thousands of our own people would gladly embrace the opportunity of
removing to the West on such conditions! If the offers made to the Indians were
extended to them, they would be hailed with gratitude and
joy.
And is
it supposed that the wandering savage has a stronger attachment to his home than
the settled, civilized Christian? Is it more afflicting to him to leave the
graves of his fathers than it is to our brothers and children? Rightly
considered, the policy of the General Government toward the red man is not only
liberal, but generous. He is unwilling to submit to the laws of the States and
mingle with their population. To save him from this alternative, or perhaps
utter annihilation, the General Government kindly offers him a new home, and
proposes to pay the whole expense of his removal and
settlement.
A
Compilation of the Messages and Papers of the Presidents 1789-1908, Volume
II, by James D. Richardson, published by Bureau of National Literature and Art
,1908
SOURCE
2
Letter from Chief John Ross, "To the Senate and House of
Representatives"
[Red
Clay Council Ground, Cherokee Nation, September 28,
1836]
It is
well known that for a number of years past we have been harassed by a series of
vexations, which it is deemed unnecessary to recite in detail, but the evidence
of which our delegation will be prepared to furnish. With a view to bringing our
troubles to a close, a delegation was appointed on the 23rd of October, 1835, by
the General Council of the nation, clothed with full powers to enter into
arrangements with the Government of the United States, for the final adjustment
of all our existing difficulties. The delegation failing to effect an
arrangement with the United States commissioner, then in the nation, proceeded,
agreeably to their instructions in that case, to Washington City, for the
purpose of negotiating a treaty with the authorities of the United
States.
After
the departure of the Delegation, a contract was made by the Rev. John F.
Schermerhorn, and certain individual Cherokees, purporting to be a "treaty,
concluded at New Echota, in the State of Georgia, on the 29th day of December,
1835, by General William Carroll and John F. Schermerhorn, commissioners on the
part of the United States, and the chiefs, headmen, and people of the Cherokee
tribes of Indians." A spurious Delegation, in violation of a special injunction
of the general council of the nation, proceeded to Washington City with this
pretended treaty, and by false and fraudulent representations supplanted in the
favor of the Government the legal and accredited Delegation of the Cherokee
people, and obtained for this instrument, after making important alterations in
its provisions, the recognition of the United States Government. And now it is
presented to us as a treaty, ratified by the Senate, and approved by the
President [Andrew Jackson], and our acquiescence in its requirements demanded,
under the sanction of the displeasure of the United States, and the threat of
summary compulsion, in case of refusal. It comes to us, not through our
legitimate authorities, the known and usual medium of communication between the
Government of the United States and our nation, but through the agency of a
complication of powers, civil and military.
By the
stipulations of this instrument, we are despoiled of our private possessions,
the indefeasible property of individuals. We are stripped of every attribute of
freedom and eligibility for legal self-defence. Our property may be plundered
before our eyes; violence may be committed on our persons; even our lives may be
taken away, and there is none to regard our complaints. We are denationalized;
we are disfranchised. We are deprived of membership in the human family! We have
neither land nor home, nor resting place that can be called our own. And this is
effected by the provisions of a compact which assumes the venerated, the sacred
appellation of treaty.
We are
overwhelmed! Our hearts are sickened, our utterance is paralized, when we
reflect on the condition in which we are placed, by the audacious practices of
unprincipled men, who have managed their stratagems with so much dexterity as to
impose on the Government of the United States, in the face of our earnest,
solemn, and reiterated protestations.
The
instrument in question is not the act of our Nation; we are not parties to its
covenants; it has not received the sanction of our people. The makers of it
sustain no office nor appointment in our Nation, under the designation of
Chiefs, Head men, or any other title, by which they hold, or could acquire,
authority to assume the reins of Government, and to make bargain and sale of our
rights, our possessions, and our common country. And we are constrained solemnly
to declare, that we cannot but contemplate the enforcement of the stipulations
of this instrument on us, against our consent, as an act of injustice and
oppression, which, we are well persuaded, can never knowingly be countenanced by
the Government and people of the United States; nor can we believe it to be the
design of these honorable and highminded individuals, who stand at the head of
the Govt., to bind a whole Nation, by the acts of a few unauthorized
individuals. And, therefore, we, the parties to be affected by the result,
appeal with confidence to the justice, the magnanimity, the compassion, of your
honorable bodies, against the enforcement, on us, of the provisions of a
compact, in the formation of which we have had no
agency.
The
Papers of Chief John Ross, vol 1, 1807-1839, Norman OK
Gary E. Moulton,
ed.
University of Oklahoma Press, 1985
SOURCE 3 The Indian Removal Act of
1830
Author: U.S.
Government
Year Published: 1830
|
CHAP. CXLVIII.--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 river
Mississippi.
Be
it enacted by the Senate and House of Representatives of the United States of
America, in Congress assembled, That it shall and may be lawful for the
President of the United States to cause so much of any territory belonging to
the United States, west of the river Mississippi, not included in any state or
organized territory, and to which the Indian title has been extinguished, as he
may judge necessary, to be divided into a suitable number of districts, for the
reception of such tribes or nations of Indians as may choose to exchange the
lands where they now reside, and remove there; and to cause each of said
districts to be so described by natural or artificial marks, as to be easily
distinguished from every other.
SEC. 2. And be it
further enacted, That it shall and may be lawful for the President to exchange
any or all of such districts, so to be laid off and described, with any tribe or
nation within the limits of any of the states or territories, and with which the
United States have existing treaties, for the whole or any part or portion of
the territory claimed and occupied by such tribe or nation, within the bounds of
any one or more of the states or territories, where the land claimed and
occupied by the Indians, is owned by the United States, or the United States are
bound to the state within which it lies to extinguish the Indian claim
thereto.
SEC. 3. And be it
further enacted, That in the making of any such exchange or exchanges, it shall
and may be lawful for the President solemnly to assure the tribe or nation with
which the exchange is made, that the United States will forever secure and
guaranty to them, and their heirs or successors, the country so exchanged with
them; and if they prefer it, that the United States will cause a patent or grant
to be made and executed to them for the same: Provided always, That such lands
shall revert to the United States, if the Indians become extinct, or abandon the
same.
SEC. 4. And be it
further enacted, That if, upon any of the lands now occupied by the Indians, and
to be exchanged for, there should be such improvements as add value to the land
claimed by any individual or individuals of such tribes or nations, it shall and
may be lawful for the President to cause such value to be ascertained by
appraisement or otherwise, and to cause such ascertained value to be paid to the
person or persons rightfully claiming such improvements. And upon the payment of
such valuation, the improvements so valued and paid for, shall pass to the
United States, and possession shall not afterwards be permitted to any of the
same tribe.
SEC. 5. And be it
further enacted, That upon the making of any such exchange as is contemplated by
this act, it shall and may be lawful for the President to cause such aid and
assistance to be furnished to the emigrants as may be necessary and proper to
enable them to remove to, and settle in, the country for which they may have
exchanged; and also, to give them such aid and assistance as may be necessary
for their support and subsistence for the first year after their
removal.
SEC. 6. And be it
further enacted, That it shall and may be lawful for the President to cause such
tribe or nation to be protected, at their new residence, against all
interruption or disturbance from any other tribe or nation of Indians, or from
any other person or persons whatever.
SEC. 7. And be it
further enacted, That it shall and may be lawful for the President to have the
same superintendence and care over any tribe or nation in the country to which
they may remove, as contemplated by this act, that he is now authorized to have
over them at their present places of
residence.
|
SOURCE 4 The U.S. government submitted a new
treaty to the Cherokee National Council in 1835. President Jackson sent a letter
outlining the treaty terms and urging its approval:
My
Friends: I have long viewed your condition with great interest. For many years I
have been acquainted with your people, and under all variety of circumstances in
peace and war. You are now placed in the midst of a white population. Your
peculiar customs, which regulated your intercourse with one another, have been
abrogated by the great political community among which you live; and you are now
subject to the same laws which govern the other citizens of Georgia and
Alabama.
I have no motive, my
friends, to deceive you. I am sincerely desirous to promote your welfare. Listen
to me, therefore, while I tell you that you cannot remain where you now are.
Circumstances that cannot be controlled, and which are beyond the reach of human
laws, render it impossible that you can flourish in the midst of a civilized
community. You have but one remedy within your reach. And that is, to remove to
the West and join your countrymen, who are already established there. And the
sooner you do this the sooner you will commence your career of improvement and
prosperity. Allegheny Democrat
(March 16, 1835); quoted in Ehle, Trail of Tears,
275-278
In
1838-39, U.S. troops, prompted by the state of Georgia, expelled the Cherokee
Indians from
their ancestral homeland in the Southeast and removed them to the Indian
Territory in what is now Oklahoma. The removal of the Cherokees was a product of
the demand for arable land during the rampant growth of cotton
agriculture in the
Southeast, the discovery of gold on
Cherokee land, and the racial prejudice that many white southerners harbored
toward American Indians.
SOURCE
5 Worcester v. Georgia, 1832
MARSHALL, C. J. This
cause, in every point of view in which it can be placed, is of the deepest
interest.
The defendant is a
State, a member of the Union, which has exercised the powers of government over
a people who deny its jurisdiction, and are under the protection of the United
States.
The legislative power of
a State, the controlling power of the Constitution and laws of the United
States, the rights, if they have any, the political existence of a once numerous
and powerful people, the personal liberty of a citizen, all are involved in the
subject now to be considered. . . .
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 of the
State, extend her code over the whole country, abolish its institutions and its
laws, and annihilate its political existence.
If
this be the general effect of the system, let us inquire into the effect of the
particular statute and section on which the indictment is
founded.
It
enacts that "all white persons, residing within the limits of the Cherokee
Nation on the 1st day of March next, or at any time thereafter, without a
licence or permit from his excellency the governor . . . and who shall not have
taken the oath hereinafter required, shall be quilty of a high misdemeanor, and
upon conviction thereof, shall be punished by confinement to the penitentiary at
hard labor for a term not less than four years." . . .
The extraterritorial
power of every Legislature being limited in its action to its own citizens or
subjects, the very passage of this act is an assertion of jurisdiction over the
Cherokee Nation, and of the rights and powers consequent on
jurisdiction.
The first step, then, in
the inquiry which the Constitution and the laws impose on this court, is an
examination of the rightfulness of this claim. . .
From the commencement of
our government Congress has passed acts to regulate trade and intercourse with
the Indians; which treat them as nations, respect their rights, and manifest a
firm purpose to afford that protection which treaties stipulate. All these acts,
and especially that of 1802, which is still in force, manifestly consider the
several Indian nations as distinct political communities, having territorial
boundaries, within which their authority is exclusive, and having a right to all
the lands within those boundaries, which is not only acknowledged, but
guaranteed by the United States. . . .
The Cherokee Nation,
then, is a distinct community, occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can have no force, and which
the citizens of Georgia have no right to enter but with the assent of the
Cherokees themselves or in conformity with treaties and with the acts of
Congress. The whole intercourse between the United States and this nation is, by
our Constitution and laws, vested in the government of the United
States.
The act of the State of
Georgia under which the plaintiff in error was prosecuted is consequently void,
and the judgement a nullity. . . . The Acts of Georgia are repugnant to the
Constitution, laws, and treaties of the United States.
They interfere forcibly
with the relations established between the United States and the Cherokee
Nation, the regulation of which according to the settled principles of our
Constitution, are committed exclusively to the government of the
Union.
They are in direct
hostility with treaties, repeated in a succession of years, which mark out the
boundary that separates the Cherokee country from Georgia; guarantee to them all
the land within their boundary; solemnly pledge the faith of the United States
to restrain their citizens from trespassing on it; and recognize the
pre-existing power of the nation to govern itself.
They are in equal
hostility with the acts of Congress for regulating this intercourse, and giving
effect to the treaties.
The forcible seizure and
abduction of the plaintiff, who was residing in the nation with its permission,
and by authority of the President of the United States, is also a violation of
the acts which authorize the chief magistrate to exercise this authority. . .
.
Judgement reversed.
SOURCE
6 Indian Removal
Extract from Andrew
Jackson's Seventh Annual Message to Congress, Dec 7, 1835
The plan of removing the
aboriginal people who yet remain within the settled portions of the United
States to the country west of the Mississippi River approaches its consummation.
It was adopted on the most mature consideration of the condition of this race,
and ought to be persisted in till the object is accomplished, and prosecuted
with as much vigor as a just regard to their circumstances will permit, and as
fast as their consent can be obtained. All preceding experiments for the
improvement of the Indians have failed. It seems now to be an established fact
they they can not live in contact with a civilized community and prosper. Ages
of fruitless endeavors have at length brought us to a knowledge of this
principle of intercommunication with them. The past we can not recall, but the
future we can provide for. Independently of the treaty stipulations into which
we have entered with the various tribes for the usufructuary rights they have
ceded to us, no one can doubt the moral duty of the Government of the United
States to protect and if possible to preserve and perpetuate the scattered
remnants of this race which are left within our borders. In the discharge of
this duty an extensive region in the West has been assigned for their permanent
residence. It has been divided into districts and allotted among them. Many have
already removed and others are preparing to go, and with the exception of two
small bands living in Ohio and Indiana, not exceeding 1,500 persons, and of the
Cherokees, all the tribes on the east side of the Mississippi, and extending
from Lake Michigan to Florida, have entered into engagements which will lead to
their transplantation.
The plan for their
removal and reestablishment is founded upon the knowledge we have gained of
their character and habits, and has been dictated by a spirit of enlarged
liberality. A territory exceeding in extent that relinquished has been granted
to each tribe. Of its climate, fertility, and capacity to support an Indian
population the representations are highly favorable. To these districts the
Indians are removed at the expense of the United States, and with certain
supplies of clothing, arms, ammunition, and other indispensable articles; they
are also furnished gratuitously with provisions for the period of a year after
their arrival at their new homes. In that time, from the nature of the country
and of the products raised by them, they can subsist themselves by agricultural
labor, if they choose to resort to that mode of life; if they do not they are
upon the skirts of the great prairies, where countless herds of buffalo roam,
and a short time suffices to adapt their own habits to the changes which a
change of the animals destined for their food may require. Ample arrangements
have also been made for the support of schools; in some instances council houses
and churches are to be erected, dwellings constructed for the chiefs, and mills
for common use. Funds have been set apart for the maintenance of the poor; the
most necessary mechanical arts have been introduced, and blacksmiths, gunsmiths,
wheelwrights, millwrights, etc., are supported among them. Steel and iron, and
sometimes salt, are purchased for them, and plows and other farming utensils,
domestic animals, looms, spinning wheels, cards, etc., are presented to them.
And besides these beneficial arrangements, annuities are in all cases paid,
amounting in some instances to more than $30 for each individual of the tribe,
and in all cases sufficiently great, if justly divided and prudently expended,
to enable them, in addition to their own exertions, to live comfortably. And as
a stimulus for exertion, it is now provided by law that "in all cases of the
appointment of interpreters or other persons employed for the benefit of the
Indians a preference shall be given to persons of Indian descent, if such can be
found who are properly qualified for the discharge of the
duties."
Such are the
arrangements for the physical comfort and for the moral improvement of the
Indians. The necessary measures for their political advancement and for their
separation from our citizens have not been neglected. The pledge of the United
States has been given by Congress that the country destined for the residence of
this people shall be forever "secured and guaranteed to them." A country west of
Missouri and Arkansas has been assigned to them, into which the white
settlements are not to be pushed. No political communities can be formed in that
extensive region, except those which are established by the Indians themselves
or by the Untied States for them and with their concurrence. A barrier has thus
been raised for their protection against the encroachment of our citizens, and
guarding the Indians as far as possible from those evils which have brought them
to their present condition. Summary authority has been given by law to destroy
all ardent spirits found in their country, without waiting the doubtful result
and slow process of a legal seizure. I consider the absolute and unconditional
interdiction of this article among these people as the first and great step in
their melioration. Halfway measures will answer no purpose. These can not
successfully contend against the cupidity of the seller and the overpowering
appetite of the buyer. And the destructive effects of the traffic are marked in
every page of the history of our Indian intercourse. . .
.
SOURCE
7 CHEROKEE NATION v.
GEORGIA, 1831
MARSHALL, C. J. This
bill is brought by the Cherokee nation, praying an injunction to restrain the
state of Georgia from the execution of certain laws of that state, which, as is
alleged, go directly to annihilate the Cherokee as a political society, and to
seize for the use of Georgia, the lands of the nation which have been assured to
them by the United States, in solemn treaties repeatedly made and still in
force.
If
courts were permitted to indulge their sympathies, a case better calculated to
excite them can scarcely be imagined. A people, once numerous, powerful, and
truly independent, found by our ancestors in the quiet and uncontrolled
possession of an ample domain, gradually sinking beneath our superior policy,
our arts 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 between a state or 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 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, recognise 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 recognise 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? 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. An aggregate of
aliens composing a state must, they say, be a foreign state; each individual
being foreign, the whole must be foreign.
This argument is
imposing, but we must examine it more closely, before we yield to it. The
condition of the Indians in relation to the United States is, perhaps, unlike
that of any other two people in existence. In general, nations not owing a
common allegiance, are foreign to each other. The term foreign nation is, with
strict propriety, applicable by either to the other. But the relation of the
Indians to the United States is marked by peculiar and cardinal distinctions
which exist nowhere else. 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 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 possession, 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 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 States, and might furnish some reason for omitting to
enumerate them among the parties 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." 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
application 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 introduced into the
article, empowering congress to regulate commerce, for the purpose of removing
those doubts in which the management of Indian affairs was involveed by the
language of the ninth article of the confederation. Intending to give the whole
of managing those 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 that construction on us. We find nothing in the context, and
nothing in the subject of the article, which leads to
it.
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 future. The motion for an injunction is
denied.
