The Cherokee tribes lived in the Virginias, the Carolinas, Tennessee, Georgia and Alabama. In 1721 the British signed a treaty with the Cherokees. This resulted in the cession of 2600 square miles in the area of what is present-day South Carolina.
One of the most advanced North American tribes, by the middle of the 18th century the Cherokees farmed, owned cattle and horses and had developed a democratic form of government.
John Ross, president of the Cherokee National Council, argued that to protect its land the tribe needed a written constitution that proclaimed that the Cherokee nation had complete jurisdiction over its own territory. In 1827 Ross drafted a written constitution for the tribe. This was based on the Constitution of the United States. Ross also encouraged Samuel Worcester and Elias Boudinot to begin publishing the newspaper, Cherokee Phoenix.
In 1828 John Ross was elected principal chief of the Cherokee Nation. Two years later Andrew Jackson encouraged Congress to pass the 1830 Indian Removal Act. He argued that the legislation would provide land for white invaders, improve security against foreign invaders and encourage the civilization of the Native Americans. In one speech he argued that the measure "will separate the Indians from immediate contact with settlements of whites; 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 influences of good counsels, to cast off their savage habits and become an interesting, civilized, and christian community."
Andrew Jackson was re-elected with an overwhelming majority in 1832. He now pursued the policy of removing Native Americans from good farming land. He even refused to accept the decision of the Supreme Court to invalidate Georgia's plan to annex the territory of the Cherokee. This brought Jackson into conflict with Whig leaders such as Henry Clay and Daniel Webster.
Samuel Worcester organized protests against this decision. Worcester was now arrested and sentenced to four years imprisonment for violating a Georgia law prohibiting a white from living among the Native Americans. Chief John Ross took the case to the Supreme Court and it eventually ruled the law unconstitutional and Worcester was released.
Some members of the Cherokee tribe such as Elias Boudinot and Major Ridge supported the 1830 Indian Removal Act and in 1832 Boudinot argued that removal was the "course that will come nearest benefiting the nation". In 1835 Major Ridge, Elias Boudinot and 18 other members of Cherokee tribe signed the Treaty of New Echota. This agreement ceded all rights to their traditional lands to the United States. In return the tribe was granted land in the Indian Territory.
Although the majority of the Cherokees, including Chief John Ross, opposed this agreement they were forced to make the journey by General Winfield Scott and his soldiers. In October 1838 about 15,000 Cherokees began what was later to be known as the Trail of Tears. Most of the Cherokees travelled the 800 mile journey on foot. As a result of serious mistakes made by the Federal agents who guided them to their new land, they suffered from hunger and the cold weather and an estimated 4,000 people died on the journey. This included John Ross's wife, Quatie. The soldiers refused permission for the Cherokee to stop and bury family members and warned them they would be shot if they tried to do this. They were therefore forced to carry the dead bodies until they reached that night's camp.
Martin Van Buren, who replaced Andrew Jackson as president by 1838, claimed in Congress that: "The measures of the Removal have had the happiest effect... the Cherokee moved without apparent reluctance."
It gives me great pleasure to announce to Congress that the benevolent policy of the government, steady pursued for nearly thirty years, in relation with the removal of the Indians beyond the white settlements is approaching to a happy consumation.
The consequences of a speedy will be important to the United States, to individual states, and to the Indians themselves. It puts an end to all possible danger of a collision between the authorities of the general and state governments, and of the account the Indians. It will place a dense population in large tracts of country now occupied by a few savaged 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 invasion without remote aid.
It will separate the Indians from immediate contact with settlements of whites; 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 influences of good counsels, to cast off their savage habits and become an interesting, civilized, and Christian community.
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.
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 of Indians now residing 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.
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.
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.
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.
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.
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: Provided, That nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.
And be it further enacted, That for the purpose of giving effect to the Provisions of this act, the sum of five hundred thousand dollars is hereby appropriated, to be paid out of any money in the treasury, not otherwise appropriated.
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.
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 plaintiff is a citizen of the State of Vermont, condemned to hard labor for four years in the penitentiary of Georgia under color of an act which he alleges to be repugnant to the Constitution, laws, and treaties 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.
We must inquire and decide whether the act of the Legislature of Georgia under which the plaintiff in error has been persecuted and condemned, be consisted with, or repugnant to the Constitution, laws and treaties of the United 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 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.