USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 64
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By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is ac- knowledged to lie without the jurisdiction of the seve- ral States composing the Union of the U. States; and it is thereby specially stipulated, that the citizensof 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, and so, as aforesaid, held by them, under the guaranty of the United States; that, for those acts, the defendant is not amenable to the laws of Georgia, nor to the juris- diction of the courts of the said State; and that the laws of the State of Georgia, which profess to add the said territory to the several adjacent counties of the said State, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in par- ticular, the act on which this indictment vs. this defen- dant is grounded, to wit: " An act entitled an act to pre- vent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cher- okee Indians, and their laws, and to prevent white per- sons from residing within that part of the chartered li- mits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the State within the aforesaid territory," are repugnant to the aforesaid trea- ties, 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, unconsti- tutional, 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 regu- late and control, the intercourse with the said Cherokee Nation, which, by the said Constitution, belongs exclu- sively to the Congress of the United States; and be- cause 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 fron- tiers:" 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 pun- ish 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, whe- ther he shall be held bound to answer further to said in- dictment."
This plea was overruled by the Court. And the pri- soner, 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 in- dictment, was under the authority of the President of the United States, and with the permission and appro- val of the Cherokee Nation. That the treaties sub- sisting between the United States and the Cherokees, acknowledge their right as a sovereign nation to go- vern themselves and all persons who have settled within their territory, free from any right of legislative inter- ference by the several States, composing the United States of America. That the act under which the pro- secution 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 inter- course with the Cherokee Nation, which belongs, ex- clusively, to Congress; and, because, also, it is repug- nant 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.
That section enumerates the cases in which the final judgment or decree of a State Court may be revised in the Supreme Court of the United States. These are, " where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the Unit- ed States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their heing repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the Constitu- tion, or of a treaty, or statute of, or commission held un- der, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission."
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 in- to question the validity of a statute of the State of Geor- gia, "on the ground of its being repugnant to the con- stitution, treaties, and laws of the U. States, and the de- cision 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 Legisla- ture 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 Le- gislature of Georgia, seize on the whole Cherokee country, parcel it out among the neighboring counties
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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 in- quire 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 first day of March next, or at any time thereafter, without a license or permit from his excellency the Governor, or from such agent as his excellency the Governor shall authorize to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanor, and, upon conviction thereof, shall be punished by confinement to the penitentiary, at hard labor, for a term not less that four years."
The 11th section authorizes the Governor, "should he deem it necessary for the protection of the mines, or the enforcement of the laws in force within the Chero- kee Nation, to raise and organize a guard," &c.
The 13th section enacts "that the said guard, or any member of them, shall be, and they are hereby author- ized and empowered to arrest any person legally charg- ed with or detected in a violation of the laws of this state, and to convey, as soon as practicable, the person so arrested, before a justice of the peace, judge of the superior, or justice of inferior court of this state, to be dealt with according to law."
The extra territorial power of every legislature being limited in its action, to its own citizens or subjects, the very passage of the 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 consti- tution and laws impose on this court, is an examination of the rightfulness of this claim.
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. . It is difficult to compre- hend the proposition, that the inhabitants of either quar- ter of the globe could have rightful original claims of do- minion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the coun- try discovered which annul the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enter- 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 fish- ing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several go- vernments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occuped it? Or has nature, or the great Creator of all things, conferred theirrights over hunters and fishermen, or agriculturists and manu- facturers›
But power, war, conquest, give rights which, after possession, are conceded by the world, and which can never be controverted by those on whom they de- scend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pre- tensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody
conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was " that discovery gave title to the Government by whose subjects or by whose authority it was made, against all other European Governments, which title might be consummated by possession."*
This principle, acknowledged by all Europeans, be- cause it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable con- sequence, the sole right of acquiring the soil, and ma- king settlements on it. It was an exclusive principle, which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the Eu- ropean discoverers; but could not affect the rights of those already in possession, either as aboriginal occu- pants, or as occupants by virtue of a discovery made be- fore the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular Govern- ment which asserted and could maintain this pre-emp- tive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them. Sofar as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they ex- ist in fact, are understood by both parties, are asserted by the one, and admitted by the other.
Soon after Great Britain determined on planting co- lonies in America, the king granted charters to compa- nies of his subjects, who associated for the purpose of carrying the views of the crown into effect, and of en- riching 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 oc- cupied by numerous and warlike nations, equally wil- ling and able to defend their possessions. The extra- vagant and absurd idea, that the fecble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting Ameri- ca, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim, nor was it so understood.
The power of making war is conferred by these char- ters on the colonies, but defensive war alone seems to have been contemplated. In the first charter to the first and second colonies, they are empowered, "for their several defences to encounter, expulse, repel, and resist, all persons who shall, without license," attempt to inhabit " within the said precincts and limits of the said several colonies, or that shall enterprize, or attempt at any time hereafter, the least detriment or annoyance of the said several colonies or plantations."
The charter to Connecticut concludes a general pow- er to make defensive war with these terms: "and upon just causes to invade and destroy the natives, or other enemies of the said colony."
The same power, in the same words, is conferred on the Government of Rhode Island.
· Wheaton, 573.
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THE CHEROKEE CASE-CHIEF JUSTICE MARSHALL'S OPINION.
[APRIL
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 invad- ed, 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 harbarous 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.
These barbarous nations whose incursions were fear- ed, and to repel whose incursions the power to make war was given, were surely not considered as the sub- jects of Penn, or occupying his lands during his plea- sure.
The same clause is introduced into the charter to Lord Baltimore.
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 deso- late." It recites, "and whereas our provinces in North America have been frequently ravaged by Indian ene- mies, 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 inhabi- tants 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- patible with the lofty ideas of granting the soil, and all its inhabitants, from sea to sea. They demonstrate the truth, that these grants asserted a title against Euro- peans only, and were considered as blank paper so far as the rights of the natives were concerned. The pow- er of war is given only for defence, not for conquest.
The charters contain passages showing one of their objects to be civilization of the Indians, and their con- version to Christianity-objects to be accomplished by conciliating conduct, and good example; not by exter- mination.
The actual state of things, and the practice of Euro- pean 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 pre- tensions 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 secu- rity 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 pro- fessions, and purchased by rich presents. The Eng. lish, the French, and the Spaniards, were equally com- petitors for their friendship and their aid. Not well acquainted with the exact meaning of words, nor sup- posing it to be material whether they were called the subjects, or the children of their father in Europe; lav- ish 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-go- vernment acknowledged, they were willing to profess dependence on the Power which furnished supplies of which they were in absolute need, and restrained dan- gerous intruders from entering their country; and this was probably the sense in which the term was under- stood by them.
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 purchas- ed 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 de- pendence by subsidies; but never intruded into the interior of their affairs, or interfered with their self go- vernment, so far as respected themselves only.
The general views of Great Britain, with regard to the Indians, were detailed by Mr. Stuart, superintend- ent of Indian affairs, in a speech delivered at Mobile, in the presence of several persons of distinction, soon after the peace of 1763. Towards the conclusion he says, " lastly, I inform you, that it is the King's order to all his governors and subjects to treat the Indians with jus- tice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly all indivi- duals 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 ma- jesty, it must be done, for the future, at a public meet- ing 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 proclamation issued by the King of Great Brit- ain, in 1763, soon after the ratification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey; or pass patents upon any lands whatever, which not having been ceded to, or pur- chased by us (the King) as aforesaid, are reserved to the said Indians, or any of them.
The proclamation proceeds "and we do further de- clare it to be our royal will and pleasure, for the pre- sent, as aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, 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 li- cense 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 coun- tries 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."
A proclamation, issued by Governor Gage, in 1772, contains the following passage: "Whereas many per- sons, contrary to the positive orders of the King, upon this subject, have undertaken to make settlements be- yond 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;" particu- larly on the Ouabache, the proclamation orders such persons to quit these countries without delay."
Such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had grant- ed; she considered them as nations capable of maintain- ing the relations of peace and war; and governing them- selves under her protection; and she made treaties with
Certain it is, that our history furnishes no examples from the first settlement of our country, of any attempt, ! them, the obligation of which she acknowledged.
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This was the settled state of things when the war of our Revolution commenced. The influence of our ene- my 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 soli- citude 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 anx- ious desire to conciliate the Indian nations. Three Ia- dian 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 tak- ing 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 Sep- tember, 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.
" Ist. 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.
"2d. That a perpetual peace and friendship, shall, from henceforth, take place and subsist between the contracting parties aforesaid through all succeeding ge- nerations: and if either of the parties are engaged in a just and necessary war, withany other nation or nations, that then each shall assist the other, in due proportion to their abilities, till their enemies are brought to reasona- ble terms of accommodation," &c.
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