Motion for an injunction to prevent the execution of certain acts of the Legislature of the State of Georgia in the territory of the Cherokee Nation, on behalf of the Cherokee Nation, they claiming to proceed in the Supreme Court of the United States as a foreign state against the State of Georgia under the provision of the Constitution of the United States which gives to the Court jurisdiction in controversies in which a State of the United States or the citizens thereof, and a foreign state, citizens, or subjects thereof are parties.
The Cherokee Nation is not a foreign state in the sense in which the terms "foreign state" is used in the Constitution of the United States.
The third article of the Constitution of the United States describes the extent of the judicial power. The second section closes an enumeration of the cases to which it extends with "controversies between a State or the 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 State of Georgia may then certainly be sued in this Court.
The Cherokees are a State. They have been uniformly treated as a State since 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 [p2] 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.
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 Indians are acknowledged to have an unquestionable, and heretofore an unquestioned, right to the lands they occupy until that right shall be extinguished by a voluntary cession to our Government. It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict 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 relations to the United States resemble 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.
The bill filed on behalf of the Cherokees seeks to restrain a State from forcible exercise of legislative power over a neighbouring 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 power 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 possessions, 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 well be questioned. It savours too much of the exercise of political power to be within the proper province of the Judicial Department.
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