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 Cherokees
come to the seat of the American Government to solicit peace; or, did
the American commissioners go to them to obtain it? The treaty was made
at Hopewell, not at New York. The word "give," then, has no real
importance attached to it.
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.
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 European Powers. Its origin may be traced to
the nature of their connexion with those Powers; and its true meaning
is discerned in their relative situation.
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 same stipulation entered into with the United States, is
undoubtedly to be construed in the same manner. They receive the
Cherokee nation into their favor and protection. The Cherokees
acknowledge themselves to be under the protection of the United States,
and of no other Power. Protection does not imply the destruction of the
protected. The manner in which this stipulation was understood by the
American Government, is explained by the language and acts of our first
President.
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.
Is it reasonable to suppose, that the Indians, who could not write, and
most probably could not read, who certainly were not critical judges of
our language, should distinguish the word "allotted" from the words
"marked out." The actual subject of contract was the dividing line
between the two nations, and their attention may very well be supposed
to have been confined to that subject. When, in fact, they were ceding
lands to the 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, and 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 with
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 respects the management of all their affairs. The most
important of these, is the cession of their lands, and security against
intruders on them. Is it credible, that they could have considered
themselves as surrendering to the United States, the right to dictate
their future cessions, and the terms on which they should be made? or
to compel their submission to the violence of disorderly and licentious
intruders? It is equally inconceivable that they could have supposed
themselves, by a phrase thus slipped into an article, on another and
most interesting subject, to have divested themselves of the right of
self government 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." Such a construction would be inconsistent
with the spirit of this and of all subsequent treaties; especially of
those articles which recognise the right of the Cherokees to declare
hostilities, and to make war. It would convert a treaty of peace
covertly into an act, annihilating the political existence of one of
the parties. Had such a result been intended, it would have been openly
avowed.
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 on 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 Holston was negotiated, 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 acknowledgment, that the
Cherokee nation is under the protection of the United States of
America, and of no other sovereign whosoever.
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 between 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 the other. To preclude forever all disputes, it is
agreed that it shall be plainly marked by commissioners, to be
appointed by each party; and, in order to extinguish forever, all claim
of the Cherokees to the ceded lands, an additional consideration is to
be paid by the United States. For this additional consideration the
Cherokees release all right to the ceded land, forever.
By the fifth article, the Cherokees allow the United States a road
through their country, and the navigation of the Tennessee river. The
acceptance of these cessions is an acknowledgment of the right of the
Cherokees to make or withhold them.
By the sixth article it is agreed, on the part of the Cherokees, that
the United States shall have the sole and exclusive right of regulating
their trade. No claim is made to the management of all their affairs.
This stipulation has already been explained. The observation may be
repeated, that the stipulation is itself an admission of their right to
make or refuse it.
By the seventh article the United States solemnly guaranty to the
Cherokee nation all their lands not hereby ceded.
The eighth article relinquishes to the Cherokees any citizens of the
United States who may settle on their lands; and the ninth forbids any
citizen of the United States to hunt on their lands, or to enter their
country without a passport.
The remaining articles are equal, and contain stipulations which could
be made only with a nation admitted to be capable of governing itself.
This treaty, thus explicitly recognizing the national character of the
Cherokees, and their right of self government; thus guarantying their
lands; assuming the duty of protection, and of course pledging the
faith of the United States for that protection; has been frequently
renewed, and is now in full force.
To the general pledge of protection have been added several specific
pledges, deemed valuable by the Indians. Some of these restrain the
citizens of the United States from encroachments on the Cherokee
country, and provide for the punishment of intruders.
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 guarantied by the United States.
In 1819, Congress passed an act for promoting these humane designs of
civilizing the neighboring Indians, which had long been cherished by the
Executive. It enacts, "that, for the purpose of providing against the
further decline and filial extinction of the Indian tribes adjoining to
the frontier settlements of the United States, and for introducing among
them the habits and arts of civilization, the President of the United
States shall be, and he is hereby, authorized, in every case where he
shall judge improvement in the habits and condition of such Indians
practicable, and that the means of instruction can be introduced, _with
their own consent_, to employ capable persons, of good moral character,
to instruct them in the mode of agriculture suited to their situation;
and for teaching their children in reading, writing, and arithmetic; and
for performing such other duties as may be enjoined, according to such
instructions and rules as the President may give and prescribe for the
regulation of their conduct in the discharge of their duties."
This act avowedly contemplates the preservation of the Indian nations
as an object sought by the United States, and proposes to effect this
object by civilizing and converting them from hunters into
agriculturists. Though the Cherokees had already made considerable
progress in this improvement, it cannot be doubted that the general
words of the act comprehend them. Their advance in the "habits and arts
of civilization." rather encouraged perseverance in the laudable
exertions still farther to meliorate their condition. This act
furnishes strong additional evidence of a settled purpose to fix the
Indians in their country by giving them security at home.
The treaties and laws of the United States contemplate the Indian
territory as completely separated from that of the States; and provide
that all intercourse with them shall be carried on exclusively by the
Government of the Union.
Is this the rightful exercise of power, or is it usurpation?
While these States were colonies, this power, in its utmost extent, was
admitted to reside in the crown. When our Revolutionary struggle
commenced, Congress was composed of an assemblage of deputies acting
under specific powers granted by the Legislatures, or conventions of
the several colonies. It was a great popular movement, not perfectly
organized, nor were the respective powers of those who were entrusted
with the management of affairs accurately defined. The necessities of
our situation produced a general conviction that those measures which
concerned all, must be transacted by a body in which the
representatives of all were assembled, and which could command the
confidence of all; Congress, therefore, was considered as invested with
all the powers of war and peace, and Congress dissolved our connexion
with the mother country, and declared these United Colonies to be
independent States. Without any written definition of powers, they
employed diplomatic agents to represent the United States at the
several Courts of Europe; offered to negotiate treaties with them; and
did actually negotiate treaties with France. From the same necessity,
and on the same principles, Congress assumed the management of Indian
affairs; first in the name of these United Colonies, and afterwards in
the name of the United States. Early attempts were made at negotiation,
and to regulate trade with them. These not proving successful, war was
carried on under the direction, and with the forces of the United
States, and the efforts to make peace, by treaty, were earnest and
incessant. The Confederation found Congress in the exercise of the same
powers of peace and war, in our relations with Indian nations, as with
those of Europe. Such was the state of things when the Confederation
was adopted. That instrument surrendered the powers of peace and war to
Congress, and prohibited them to the States, respectively, unless a
State be actually invaded, "or shall have received certain advice of a
resolution being formed by some nation of Indians to invade such State,
and the danger is so imminent as not to admit of delay till the United
States, in Congress assembled, can be consulted." This instrument also
gave the United States in Congress assembled the sole and exclusive
right of "regulating the trade, and managing all the affairs with the
Indians, not members of any of the States: _Provided_, That the
legislative power of any State within its own limits be not infringed or
violated."
The ambiguous phrases which follow the grant of power to the United
States, were so construed by the States of North Carolina and Georgia as
to annul the power itself. The discontents and confusion resulting from
these conflicting claims, produced representations to Congress, which
were referred to a committee, who made their report in 1787. The report
does not assent to the construction of the two States, but recommends an
accommodation, by liberal cessions of territory, or by an admission, on
their part, of the powers claimed by Congress. The correct exposition of
this article is rendered unnecessary by the adoption of our existing
constitution. That instrument confers on Congress the powers of war and
peace; of making treaties, and of regulating commerce with foreign
nations, and among the several States, and _with the Indian tribes_.
These powers comprehend all that is required for the regulation of our
intercourse with the Indians. They are not limited by any restrictions
on their free actions. The shackles imposed on this power, in the
Confederation, are discarded.
The Indian nations had always been considered as distinct, independent
political communities, retaining their original natural rights, as the
undisputed possessors of the soil, from time immemorial, with the
single exception of that imposed by irresistible power, which excluded
them from intercourse with any other European potentate than the first
discoverer of the coast of the particular region claimed: and this was
a restriction which those European potentates imposed on themselves, as
well as on the Indians. The very term, "nation," so generally applied
to them, means "a People distinct from others." The constitution, by
declaring treaties already made, as well as those to be made, to be the
supreme law of the land, has adopted and sanctioned the previous
treaties with the Indian nations, and, consequently, admits their rank
among those Powers who are capable of making treaties. The words
"treaty" and "nation" are words of our own language, selected in our
diplomatic and legislative proceedings, by ourselves, having each a
definite and well understood meaning. We have applied them to Indians,
as we have applied them to the other nations of the earth. They are
applied to all in the same sense.
Georgia, herself, has furnished conclusive evidence that her former
opinions on this subject concurred with those entertained by her sister
States, and by the Government of the United States. Various acts of her
Legislature have been cited in the argument, including the contract of
cession made in the year 1802, all tending to prove her acquiescence in
the universal conviction that the Indian nations possessed a full right
to the lands they occupied, until that right should be extinguished by
the United States, with their consent; that their territory was
separated from that of any State within whose chartered limits they
might reside, by a boundary line, established by treaties; that, within
their boundary, they possessed rights with which no State could
interfere; and that the whole power of regulating the intercourse with
them, was vested in the United States. A review of these acts, on the
part of Georgia, would occupy too much time, and is the less necessary,
because they have been accurately detailed in the argument at the bar.
Her new series of laws, manifesting her abandonment of these opinions,
appears to have commenced in December, 1828.
In opposition to this original right, possessed by the undisputed
occupants of every country, to this recognition of that right, which is
evidenced by our history in every change through which we have passed,
is placed the charters granted by the monarch of a distant and distinct
region, parcelling out a territory in possession of others, whom he
could not remove, and did not attempt to remove, and the cession made
of his claims, by the treaty of peace.
The actual state of things at the time, and all history since, explain
these charters; and the King of Great Britain, at the treaty of peace,
could cede only what belonged to his crown. These newly asserted titles
can derive no aid from the articles so often repeated in Indian
treaties, extending to them, first, the protection of Great Britain,
and afterwards, that of the United States. These articles are
associated with others, recognizing their title to self government. The
very fact of repeated treaties with them recognizes it; and the settled
doctrine of the law of nations is, that the weaker power does not
surrender its independence--its right to self government--by
associating with a stronger, and taking its protection. A weak State,
in order to provide for its safety, may place itself under the
protection of one more powerful, without stripping itself of the right
of government, and ceasing to be a State. Examples of this kind are not
wanting in Europe. "Tributary and feudatory States," says Vattel, "do
not thereby cease to be sovereign and independent States, so long as
self government and sovereign and independent authority is left in the
administration of the State." At the present day, more than one State
may be considered as holding its right of self government under the
guarantee and protection of one or more allies.
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 judgment a nullity. Can this
Court revise and reverse it?
If the objection to the system of legislation, lately adopted by the
Legislature of Georgia, in relation to the Cherokee nation, was
confined to its extraterritorial operation, the objection, though
complete, so far as respected mere right, would give this Court no
power over the subject. But it goes much further. If the view which has
been taken be correct, and we think it is, the acts of Georgia are
repugnant to the constitution, laws, and treaties, of the United
States.