Either the Cherokee Nation are a foreign state or they are not. It would be taking very great liberty in the exposition of a fundamental law to bring the Indians under the action of the legislative power as tribes, and of the judicial as foreign states. On the day of the scheduled hearing, Georgia failed to send a representative, so the Court entered a default judgment in favor of the plaintiffs. The State evicted the strikers from their prison owned homes, and used them to house the National guardsmen that were replacing them. But if the former was the meaning of the parties, it is conclusive to show that he was not and could not be the deputy of a foreign state wholly separated from the union. Applied strict interpretation of the Constitution by saying that the federal government could not pay for internal improvements.
In 1802, Congress passed the act regulating trade and intercourse with the Indian tribes in which they assert all the rights exercised over them under the old confederation, and do not alter in any degree their political relations, 3 Laws U. Entertaining different views of the questions now before us in this case, and having arrived at a conclusion different from that of a majority of the Court, and considering the importance of the case and the constitutional principle involved in it, I shall proceed, with all due respect for the opinion of others, to assign the reasons upon which my own has been formed. Foreign States cannot be created by judicial construction; Indian sovereignty cannot be roused from its long slumber, and awakened to action by our fiat. Where its terms are plain, I should, as a dissenting judge, deem it judicial sacrilege to put my hands on any of its provisions and arrange or construe them according to any fancied use, object, purpose, or motive which, by an ingenious train of reasoning, I might bring my mind to believe was the reason for its adoption by the sovereign power, from whose hands it comes to me as the rule and guide to my faith, my reason, and judicial oath. In Chisholm , the Jay Court decided states lacked sovereign immunity from being sued for war debt incurred during the Revolutionary War. Georgia was the state legislation of Georgia. The twelfth article of the treaty of Hopewell contains a full recognition of the sovereign and independent character of the Cherokee Nation.
But if any passed to the United States by either, they were retroceded by the convention of 1802. The individual, called in that bill Corn Tassel and mentioned as having been arrested in the Cherokee territory under process issued under the laws of Georgia, has been actually hung in defiance of a writ of error allowed by the Chief Justice of this Court to the final sentence of the Court of Georgia in his case. They have in Europe sovereign and demi-sovereign States, and States of doubtful sovereignty. The securing the right by an express stipulation of the treaty, the declared objects in conferring the right, especially when connected with the ninth article, show beyond a doubt it was not to represent a foreign state or nation or one to whom the least vestige of independence or sovereignty as to the United States appertained. They still claim independence, and actually execute their own penal laws, such as they are, even to the punishment of death, and have recently done so.
The complaint is not of a mere private trespass, admitting of compensation in damages, but of injuries which go to the total destruction of the whole right of the complainants. That an injunction is a fit and proper writ to be issued to prevent the further execution of such laws, and ought therefore to be awarded. This is the principle running through all the case on this subject, and is founded upon the most wise and just considerations, and this is peculiarly such a case. The case had nothing to do with mining. In 1542, conducted an expedition through the southeastern United States and came into contact with at least three Cherokee villages.
Some States made reservations of lands to a small amount, but, by the terms of the cession, new States were to be formed within the ceded boundaries, to be admitted into the union on an equal footing with the original States, of course, not shorn of their powers of sovereignty and jurisdiction within the boundaries assigned by Congress to the new States. And what are the attributes by which they are identified with other States. And it remains only very briefly to inquire whether the execution of them can be restrained by injunction according to the doctrine and practice of Courts of equity. Written in plain English, not in legalese. Meanwhile, they are in a state of pupilage. And where the right secured by such treaty forms a proper subject for judicial cognizance, I can perceive no reason why this Court has not jurisdiction of the case.
By a reference to the several treaties, it will be seen that a fund is provided for the establishment of schools, and the bill asserts that great progress has been made by the Cherokees in civilization and in agriculture. The latter is the case of the tribes to the west of Georgia, among which are the Cherokees. It cannot be questioned that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. The panic of 1837 followed. It may be inconvenient to the State, and very desirable that the Cherokees should be removed, but it does not at all affect the political relation between Georgia and those Indians. Her jurisdiction over the territory in question is as supreme as that of Congress over what the Nation has acquired by cession from the States or treaties with foreign powers, combining the rights of the State and general government.
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. Some people, however, felt that the Bank, and in particular its president, had too much power to restrict the speculative and potentially profitable business dealings of smaller banks. Georgia 1831 the Cherokee Nation petitioned the Supreme Court for an injunction against Georgia state laws that were aimed at forcing Cherokees off their land. This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. The changes of the 1999 Constitution to the Judicial Branch are the Judicial Appeals Tribunal became the Supreme Court and added two more justices to the bench, bringing the count up to five.
In retaliation for signing the Treaty of New Echota Major Ridge, his son John Ridge 1802-39 and his nephew Elias Boudinot 1802-39 were assassinated by other Cherokees on June 22, 1839. It would very ill become the judicial station which I hold to indulge in any remarks upon the hardship of the case, or the great justice that would seem to have been done to the complainants according to the Statement in the bill, and which, for the purpose of the present motion I must assume to be true. 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. No one can suppose that such deputy was to take his seat as a member of Congress, but that he would be received as the agent of that nation. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else. Engblom sued, claiming that the States action violated the 3rd amendment ban on quartering soldiers in private homes without the owners consent.
An aggregate of aliens composing a State must, they say, be a foreign state. In fact, the legislature went further by, among other actions, threatening to secede from the Union if the tariffs were not reduced. If their jurisdiction within their boundaries has been unquestioned until this controversy, if rights have been exercised which are directly repugnant to those now claimed, the judicial power cannot divest the States of rights of sovereignty and transfer them to the Indians by decreeing them to be a nation, or foreign state, preexisting and with rightful jurisdiction and sovereignty over the territory they occupy. The State of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed in any manner whatever as acts of war, but merely as an assertion of what is claimed as a legal right, and in this light ought they to be considered by this Court. The Catawbas, having indeed a few more acres than the republic of San Marino, but consisting only of eighty or an hundred polls, would then be admitted to the same dignity. They gave instructions to the commissioners in strict conformity with their preceding resolutions, both of which were wholly incompatible with the national or sovereign character of the Indians with whom they were about to treat. In this case, the averment is that the complainant is a foreign state.
Laws have been enacted in the spirit of these treaties. As to the first question, it is clear that, as a State ,they are known to nobody on earth but ourselves, if to us; how then can they be said to be recognized as a member of the community of nations? Nothing but express authority from the States could have justified such a policy, pursued with such a view. And, also, both under the Constitution and the treaty of Hopewell, the power of Congress extends to regulating their trade, necessarily within their limits. Within her boundaries, there can be no other nation, community, or sovereign power which this department can judicially recognize as a foreign state, capable of demanding or claiming our interposition so as to enable them to exercise a jurisdiction incompatible with a sovereignty in Georgia, which has been recognized by the Constitution and every department of this Government acting under its authority. The bill was signed by John Ross, principal chief of the Cherokee nation, and an affidavit, in the usual form, of the facts stated in the bill was annexed; which was sworn to before a justice of the peace of Richmond county, state of Georgia. 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.