SOURCE 1 Andrew Jackson's Second Annual Message
It gives me pleasure to announce to Congress that the
benevolent policy of the Government, steadily pursued for nearly thirty years,
in relation to the removal of the Indians beyond the white settlements is
approaching to a happy consummation. Two important tribes have accepted the
provision made for their removal at the last session of Congress, and it is
believed that their example will induce the remaining tribes also to seek the
same obvious advantages.
The consequences of a speedy removal will be important to the
United States, to individual States, and to the Indians themselves. The
pecuniary advantages which it promises to the Government are the least of its
recommendations. It puts an end to all possible danger of collision between the
authorities of the General and State Governments on account of the Indians. It
will place a dense and civilized population in large tracts of country now
occupied by a few savage 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 invasions without remote aid. It
will relieve the whole State of Mississippi and the western part of Alabama of
Indian occupancy, and enable those States to advance rapidly in population,
wealth, and power. It will separate the Indians from immediate contact with
settlements of whites; free them from the power of the States; 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
influence of good counsels, to cast off their savage habits and become an
interesting, civilized, and Christian community.
What good man would prefer a country covered with forests and
ranged by a few thousand savages to our extensive Republic, studded with
cities, towns, and prosperous farms embellished with all the improvements which
art can devise or industry execute, occupied by more than 12,000,000 happy
people, and filled with all the blessings of liberty, civilization and
religion?
The present policy of the Government is but a continuation of
the same progressive change by a milder process. The tribes which occupied the
countries now constituting the Eastern States were annihilated or have melted
away to make room for the whites. The waves of population and civilization are
rolling to the westward, and we now propose to acquire the countries occupied
by the red men of the South and West by a fair exchange, and, at the expense of
the United States, to send them to land where their existence may be prolonged
and perhaps made perpetual. Doubtless it will be painful to leave the graves of
their fathers; but what do they more than our ancestors did or than our
children are now doing? To better their condition in an unknown land our
forefathers left all that was dear in earthly objects. Our children by
thousands yearly leave the land of their birth to seek new homes in distant
regions. Does Humanity weep at these painful separations from everything,
animate and inanimate, with which the young heart has become entwined? Far from
it. It is rather a source of joy that our country affords scope where our young
population may range unconstrained in body or in mind, developing the power and
facilities of man in their highest perfection. These remove hundreds and almost
thousands of miles at their own expense, purchase the lands they occupy, and
support themselves at their new homes from the moment of their arrival. Can it
be cruel in this Government when, by events which it can not control, the
Indian is made discontented in his ancient home to purchase his lands, to give
him a new and extensive territory, to pay the expense of his removal, and
support him a year in his new abode? How many thousands of our own people would
gladly embrace the opportunity of removing to the West on such conditions! If
the offers made to the Indians were extended to them, they would be hailed with
gratitude and joy.
And is it supposed that the wandering savage has a stronger
attachment to his home than the settled, civilized Christian? Is it more
afflicting to him to leave the graves of his fathers than it is to our brothers
and children? Rightly considered, the policy of the General Government toward
the red man is not only liberal, but generous. He is unwilling to submit to the
laws of the States and mingle with their population. To save him from this
alternative, or perhaps utter annihilation, the General Government kindly
offers him a new home, and proposes to pay the whole expense of his removal and
settlement.
A Compilation of the Messages
and Papers of the Presidents 1789-1908, Volume II, by James D. Richardson,
published by Bureau of National Literature and Art ,1908
SOURCE 2 Letter
from Chief John Ross, "To the Senate and House of Representatives"
[Red Clay Council Ground, Cherokee Nation, September 28, 1836]
It is well known that for a number of years past we have been
harassed by a series of vexations, which it is deemed unnecessary to recite in
detail, but the evidence of which our delegation will be prepared to furnish.
With a view to bringing our troubles to a close, a delegation was appointed on
the 23rd of October, 1835, by the General Council of the nation, clothed with
full powers to enter into arrangements with the Government of the United
States, for the final adjustment of all our existing difficulties. The
delegation failing to effect an arrangement with the United States
commissioner, then in the nation, proceeded, agreeably to their instructions in
that case, to Washington City, for the purpose of negotiating a treaty with the
authorities of the United States.
After the departure of the Delegation, a contract was made by
the Rev. John F. Schermerhorn, and certain individual Cherokees, purporting to
be a "treaty, concluded at New Echota, in the State of Georgia, on the
29th day of December, 1835, by General William Carroll and John F.
Schermerhorn, commissioners on the part of the United States, and the chiefs,
headmen, and people of the Cherokee tribes of Indians." A spurious
Delegation, in violation of a special injunction of the general council of the
nation, proceeded to Washington City with this pretended treaty, and by false
and fraudulent representations supplanted in the favor of the Government the
legal and accredited Delegation of the Cherokee people, and obtained for this
instrument, after making important alterations in its provisions, the
recognition of the United States Government. And now it is presented to us as a
treaty, ratified by the Senate, and approved by the President [Andrew Jackson],
and our acquiescence in its requirements demanded, under the sanction of the
displeasure of the United States, and the threat of summary compulsion, in case
of refusal. It comes to us, not through our legitimate authorities, the known
and usual medium of communication between the Government of the United States
and our nation, but through the agency of a complication of powers, civil and
military.
By the stipulations of this instrument, we are despoiled of
our private possessions, the indefeasible property of individuals. We are
stripped of every attribute of freedom and eligibility for legal self-defence.
Our property may be plundered before our eyes; violence may be committed on our
persons; even our lives may be taken away, and there is none to regard our
complaints. We are denationalized; we are disfranchised. We are deprived of
membership in the human family! We have neither land nor home, nor resting
place that can be called our own. And this is effected by the provisions of a
compact which assumes the venerated, the sacred appellation of treaty.
We are overwhelmed! Our hearts are sickened, our utterance is
paralized, when we reflect on the condition in which we are placed, by the
audacious practices of unprincipled men, who have managed their stratagems with
so much dexterity as to impose on the Government of the United States, in the
face of our earnest, solemn, and reiterated protestations.
The instrument in question is not the act of our Nation; we
are not parties to its covenants; it has not received the sanction of our
people. The makers of it sustain no office nor appointment in our Nation, under
the designation of Chiefs, Head men, or any other title, by which they hold, or
could acquire, authority to assume the reins of Government, and to make bargain
and sale of our rights, our possessions, and our common country. And we are
constrained solemnly to declare, that we cannot but contemplate the enforcement
of the stipulations of this instrument on us, against our consent, as an act of
injustice and oppression, which, we are well persuaded, can never knowingly be
countenanced by the Government and people of the United States; nor can we
believe it to be the design of these honorable and highminded individuals, who
stand at the head of the Govt., to bind a whole Nation, by the acts of a few
unauthorized individuals. And, therefore, we, the parties to be affected by the
result, appeal with confidence to the justice, the magnanimity, the compassion,
of your honorable bodies, against the enforcement, on us, of the provisions of
a compact, in the formation of which we have had no agency.
The Papers of Chief John Ross, vol
1, 1807-1839, Norman OK
Gary E. Moulton, ed.
University of Oklahoma Press, 1985
SOURCE
3 The Indian Removal Act of
1830
Author: U.S. Government
Year Published: 1830
|
CHAP.
CXLVIII.--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.
SEC.
2. 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 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.
SEC.
3. 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.
SEC.
4. 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.
SEC.
5. 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.
SEC.
6. 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.
SEC.
7. 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.
|
SOURCE
4 The U.S. government submitted a
new treaty to the Cherokee National Council in 1835. President Jackson sent a
letter outlining the treaty terms and urging its approval:
My
Friends: I have long viewed your condition with great interest. For many years
I have been acquainted with your people, and under all variety of circumstances
in peace and war. You are now placed in the midst of a white population. Your
peculiar customs, which regulated your intercourse with one another, have been
abrogated by the great political community among which you live; and you are
now subject to the same laws which govern the other citizens of Georgia and
Alabama.
I have no motive, my friends, to deceive you. I
am sincerely desirous to promote your welfare. Listen to me, therefore, while I
tell you that you cannot remain where you now are. Circumstances that cannot be
controlled, and which are beyond the reach of human laws, render it impossible
that you can flourish in the midst of a civilized community. You have but one
remedy within your reach. And that is, to remove to the West and join your
countrymen, who are already established there. And the sooner you do this the
sooner you will commence your career of improvement and prosperity. Allegheny Democrat (March 16,
1835); quoted in Ehle, Trail of Tears, 275-278
In 1838-39, U.S. troops, prompted by the state of Georgia,
expelled the Cherokee
Indians from their ancestral homeland in the Southeast and removed them
to the Indian Territory in what is now Oklahoma. The removal of the Cherokees
was a product of the demand for arable land during the rampant growth of cotton agriculture in the
Southeast, the discovery of gold on Cherokee
land, and the racial prejudice that many white southerners harbored toward
American Indians.
SOURCE 5 Worcester v. Georgia, 1832
MARSHALL,
C. J. This cause, in every point of view in which it can be placed, is of the
deepest interest.
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
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. . . .
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. . . .
Judgement
reversed.
SOURCE 6 Indian
Removal
Extract from Andrew Jackson's Seventh Annual Message to Congress, Dec 7, 1835
The
plan of removing the aboriginal people who yet remain within the settled
portions of the United States to the country west of the Mississippi River
approaches its consummation. It was adopted on the most mature consideration of
the condition of this race, and ought to be persisted in till the object is
accomplished, and prosecuted with as much vigor as a just regard to their
circumstances will permit, and as fast as their consent can be obtained. All
preceding experiments for the improvement of the Indians have failed. It seems
now to be an established fact they they can not live in contact with a
civilized community and prosper. Ages of fruitless endeavors have at length
brought us to a knowledge of this principle of intercommunication with them.
The past we can not recall, but the future we can provide for. Independently of
the treaty stipulations into which we have entered with the various tribes for
the usufructuary rights they have ceded to us, no one can doubt the moral duty
of the Government of the United States to protect and if possible to preserve
and perpetuate the scattered remnants of this race which are left within our
borders. In the discharge of this duty an extensive region in the West has been
assigned for their permanent residence. It has been divided into districts and
allotted among them. Many have already removed and others are preparing to go,
and with the exception of two small bands living in Ohio and Indiana, not
exceeding 1,500 persons, and of the Cherokees, all the tribes on the east side
of the Mississippi, and extending from Lake Michigan to Florida, have entered
into engagements which will lead to their transplantation.
The
plan for their removal and reestablishment is founded upon the knowledge we
have gained of their character and habits, and has been dictated by a spirit of
enlarged liberality. A territory exceeding in extent that relinquished has been
granted to each tribe. Of its climate, fertility, and capacity to support an
Indian population the representations are highly favorable. To these districts
the Indians are removed at the expense of the United States, and with certain
supplies of clothing, arms, ammunition, and other indispensable articles; they
are also furnished gratuitously with provisions for the period of a year after
their arrival at their new homes. In that time, from the nature of the country
and of the products raised by them, they can subsist themselves by agricultural
labor, if they choose to resort to that mode of life; if they do not they are
upon the skirts of the great prairies, where countless herds of buffalo roam,
and a short time suffices to adapt their own habits to the changes which a
change of the animals destined for their food may require. Ample arrangements
have also been made for the support of schools; in some instances council
houses and churches are to be erected, dwellings constructed for the chiefs,
and mills for common use. Funds have been set apart for the maintenance of the poor;
the most necessary mechanical arts have been introduced, and blacksmiths,
gunsmiths, wheelwrights, millwrights, etc., are supported among them. Steel and
iron, and sometimes salt, are purchased for them, and plows and other farming
utensils, domestic animals, looms, spinning wheels, cards, etc., are presented
to them. And besides these beneficial arrangements, annuities are in all cases
paid, amounting in some instances to more than $30 for each individual of the
tribe, and in all cases sufficiently great, if justly divided and prudently
expended, to enable them, in addition to their own exertions, to live
comfortably. And as a stimulus for exertion, it is now provided by law that
"in all cases of the appointment of interpreters or other persons employed
for the benefit of the Indians a preference shall be given to persons of Indian
descent, if such can be found who are properly qualified for the discharge of
the duties."
Such are the arrangements for the physical
comfort and for the moral improvement of the Indians. The necessary measures
for their political advancement and for their separation from our citizens have
not been neglected. The pledge of the United States has been given by Congress
that the country destined for the residence of this people shall be forever
"secured and guaranteed to them." A country west of Missouri and
Arkansas has been assigned to them, into which the white settlements are not to
be pushed. No political communities can be formed in that extensive region,
except those which are established by the Indians themselves or by the Untied
States for them and with their concurrence. A barrier has thus been raised for
their protection against the encroachment of our citizens, and guarding the
Indians as far as possible from those evils which have brought them to their
present condition. Summary authority has been given by law to destroy all
ardent spirits found in their country, without waiting the doubtful result and
slow process of a legal seizure. I consider the absolute and unconditional
interdiction of this article among these people as the first and great step in
their melioration. Halfway measures will answer no purpose. These can not
successfully contend against the cupidity of the seller and the overpowering
appetite of the buyer. And the destructive effects of the traffic are marked in
every page of the history of our Indian intercourse. . . .
SOURCE 7 CHEROKEE
NATION v. GEORGIA, 1831
MARSHALL,
C. J. 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. They acknowledge themselves, in their treaties, to be under the
protection of the United States; they admit, that the United States shall have
the sole and exclusive right of regulating the trade with them, and managing
all their affairs as they think proper; and the Cherokees in particular were
allowed by the treaty of Hopewell, which preceded the constitution, "to
send a deputy of their choice, whenever they think fit, to congress."
Treaties were made with some tribes, by the state of New York, under a then
unsettled construction of the confederation, by which they ceded all their
lands to that state, taking back a limited grant to themselves, in which they
admit their dependence. Though the Indians are acknowledged to have an
unquestionable, and heretofore unquestioned, right to the lands they occupy,
until that right shall be extinguished by a voluntary cession to our
government; yet it may well be doubted, whether those tribes which reside
within the acknowledged boundaries of the United States can, with 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 relation to the United States resembles 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. They and their country are considered by foreign nations,
as well as by ourselves, as being so completely under the sovereignty and
dominion of the United States, that any attempt to acquire their lands, or to
form a political connection with them would be considered by all as an invasion
of our territory and an act of hostility. These considerations go far to
support the opinion, that the framers of our constitution had not the Indian
tribes in view, when they opened the courts of the Union to controversies
between a state or the citizens thereof and foreign states.
In
considering this subject, the habits and usages of the Indians, in their
intercourse with their white neighbors, ought not to be entirely disregarded.
At the time the constitution was framed, the idea of appealing to an American
court of justice for an assertion of right or a redress of wrong, had perhaps
never entered the mind of an Indian or of his tribe. Their appeal was to the
tomahawk, or to the government. This was well understood by the statesmen who
framed the constitution of the United States, and might furnish some reason for
omitting to enumerate them among the parties who might sue in the courts of the
Union. Be this as it may, the peculiar relations between the United States and
the Indians occupying our territory are such, that we should feel much
difficulty in considering them as designated by the term foreign state, were there
no other part of the constitution which might shed light on the meaning of
these words. But we think that in construing them, considerable aid is
furnished by that clause in the eighth section of the third article, which
empowers congress to "regulate commerce with foreign nations, and among
the several states, and with the Indian tribes." In this clause, they are
as clearly contradistinguished, by a name appropriate to themselves, from
foreign nations, as from the several states composing the Union. They are
designated by a distinct appellation; and as this appellation can be applied to
neither of the others, neither can the application distinguishing either of the
others be, in fair construction, applied to them. The objects to which the
power of regulating commerce might be directed, are divided into three distinct
classes-foreign nations, the several states, and Indian tribes. When forming
this article, the convention considered them as entirely distinct. We cannot
assume that the distinction was lost, in framing a subsequent article, unless
there be something in its language to authorize the assumption.
The
counsel for the plaintiffs contend, that the words "Indian tribes"
were introduced into the article, empowering congress to regulate commerce, for
the purpose of removing those doubts in which the management of Indian affairs
was involveed by the language of the ninth article of the confederation.
Intending to give the whole of managing those affairs to the government about
to be instituted, the convention conferred it explicitly; and omitted those
qualifications which embarrassed the exercise of it, as granted in the
confederation. This may be admitted, without weakening the construction which
has been intimated. Had the Indian tribes been foreign nations, in the view of
the convention, this exclusive power of regulating intercourse with them might
have been, and most probably, would have been, specifically given, in language
indicating that idea, not in language contradistinguishing them from foreign
nations. Congress might have been empowered "to regulate commerce with
foreign nations, including the Indian tribes, and among the several
states." This language would have suggested itself to statesmen who
considered the Indian tribes as foreign nations, and were yet desirous of
mentioning them particularly.
It
has been also said, that the same words have not necessarily the same meaning
attached to them, when found in different parts of the same instrument; their
meaning is controlled by the context. This is undoubtedly true. In common
language, the same word has various meanings, and the peculiar sense in which
it is used in any sentence, is to be determined by the context. This may not be
equally true with respect to proper names. "Foreign nations" is a
general term, the application of which to Indian tribes, when used in the
American constitution, is, at best, extremely questionable. In one article, in
which a power is given to be exercised in regard to foreign nations generally,
and to the Indian tribes particularly, they are mentioned as separate, in terms
clearly contradistinguishing them from each other. We perceive plainly, that
the constitution, in this article, does not comprehend Indian tribes in the
general term "foreign nations;" not, we presume, because a tribe may
not be a nation, but because it is not foreign to the United States. When,
afterwards, the term "foreign state" is introduced, we cannot impute
to the convention, the intention to desert its former meaning, and to comprehend
Indian tribes within it, unless the context force that construction on us. We
find nothing in the context, and nothing in the subject of the article, which
leads to it.
A
serious additional objection exists to the jurisdiction of the court. Is the
matter of the bill the proper subject for judicial inquiry and decision? It
seeks to restrain a state from the forcible exercise of legislative power over
a neighboring 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 powers 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 possession, 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 be well questioned; it savors too much of the
exercise of political power, to be within the proper province of the judicial
department. But the opinion on the point respecting parties makes it
unnecessary to decide this question.
If it be true, that the Cherokee nation have
rights, this is not the tribunal in which those rights are to be asserted. If
it be true, that wrongs have been inflicted, and that still greater are to be
apprehended, this is not the tribunal which can redress the past or prevent the
future. The motion for an injunction is denied.
