This is the 3rd case dealing with native americans in the newly formed USA.
Here is the Lexisnexis rundown:
In this case, the Cherokee nation sought an injunction to prevent the state from enforcing its laws in the Cherokee nation's territory. The Cherokee nation argued that it was a distinct state, as a political society, separated from the others, capable of managing its own affairs and governing itself.
It also argued that it was not a state of the union and insisted that individually they were aliens, not owing any allegiance to the United States. An aggregate of aliens composing a state must, it alleged, be a foreign state. Each individual being foreign, the whole must have been foreign. The Court denied the Cherokee nation's motion for an injunction. The Court held that the Constitution, which empowered Congress to regulate commerce, specifically treated the Cherokee nation as distinct from a foreign nation.
The Court found that an Indian tribe or nation within the United States was not a foreign state within the meaning of the Constitution. Thus, the Court concluded that because the Constitution did not comprehend Indian tribes in the general term "foreign nations," the Cherokee nation was not foreign to the United States.
Next time, I will discuss what this case means. It's a biggie, in setting the foundation for Indian law in the future...
Tuesday, June 12, 2007
Worcester v. Georgia - Recap.
So to recap, here are the basic points from Worcester v. Georgia... as taken from my class notes.
Worcester v. GA – this case was about white persons residing within the limits of the Cherokee nation without a "license" and without having taken an oath to support or defend Georgia from hostile indians, as Georgia was ordering all non-indians to do.
Worcester v. GA – this case was about white persons residing within the limits of the Cherokee nation without a "license" and without having taken an oath to support or defend Georgia from hostile indians, as Georgia was ordering all non-indians to do.
- Before this, there was no history of England interfering with internal affairs or the government of indians, farther than to keep out the agents of foreign powers. Britain considered them as nations capable of maintaining relations of peace and war, of governing themselves, under her protection, and she made treaties with them, the obligations of which she acknowledged. This was the settled state when US came in and took over for England.
- The Constitution confers on Congress the powers of war and peace, of making treaties, and of regulating commerce with foreign nations, and among the several states, AND WITH THE INDIAN TRIBES. These powers comprehend all that is required for the regulation of our intercourse with the Indians… they’re not limited by any restrictions on their free actions.
- The Acts of GA (making these laws are )repugnant to the Constitution, laws and treaties of the US. They interfere with relations established between the US and the Cherokee, regulation is exclusive to the government of the nation, not to be undertaken by the states.
- The Concurring Supreme Court opinion said that "the exercise of the power of self-gov’t by NDNs is undoubtedly contemplated to be temporary. If it becomes inconsistent with political welfare of the states, weaker power must give." meaning they kind of thought that indians would eventually die off or integrate, but they upheld the power of the nations as long as it was there.
- 2 of the Supreme Court justices, Johnson/Baldwin, interpret the treaty as far as possible to construe sovereignty, as NDNs would see it. But they were not in the majority.
- This case locks in and legally endorses the supreme power of the federal government over indians - not exactly the best thing, but it did get the states off their backs.
- This was the famous case where President Jackson said “Marshall has made his decision, now let him enforce it.”
- McLean’s opinion in this case was read by lower courts as leaving open the possibility of judicial review every so often to determine whether a particular tribe had lost the power of self-government. But it hasn't been really used that way so far.
- Essentially, the Court said - if federal power/protection over tribes are terminated, its for congress, not courts, to say so.
- Modern courts have continued to rely on Worcester, but trend has been away from the idea of inherent NDN sovereignty as a bar to state JUR and toward reliance on federal preemption.
- Court sees the "sovereignty doctrine" today as a backdrop against which the applicable treaties and fed statutes must be read. Worcester is an enduring and most frequently cited case.
Thursday, June 7, 2007
On to the SECOND case in the Marshall trilogy
Now we are hitting up the second case in the Marshall Trilogy. The "Marshall trilogy" is the general name for the first three cases in Indian law. John Marshall was the Supreme Court Justice who really carved out some indian rights and set the stage for Indian law.
Worcester v. Georgia (31 U.S. 515) - in this case, Marshall basically said that the indians were a sovereign nation, and Georgia had no right to try to usurp the federal power to rule over the indian nations - the indians dealt with the FEDS, not the STATES. This is the famous case where President Andrew Jackson (asshat) said "Marshall has made his decision, now let him enforce it" - basically saying the US would not stand by their own laws.
I am trimming this case down, but here is the text of the decision... next time I will discuss what Marshall was getting at...
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 Cherokee Nation)
The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United States.
(the law that Worcester (a missionary) was accused of breaking was going into the Indian lands, without a license, which the State of Georgia said anyone had to have.)
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, are all involved in the subject now to be considered.
The ... important inquiry is, does it exhibit a case cognizable by this tribunal?
The indictment charges the plaintiff in error, and others, being white persons, with the offence of "residing within the limits of the Cherokee nation without a license," and "without having taken the oath to support and defend the constitution and laws of the state of Georgia."
The defendant in the state court ... filed the following plea:
"And the said Samuel A. Worcester, ... says, that on the 15th day of July in the year 1831, he was... a resident in the Cherokee nation; and that the said supposed crime or crimes, ... were committed, if committed at all, [within the] Cherokee nation, out of the jurisdiction of this court, [Worcester says he is citizen of... Vermont, and that he entered the ...Cherokee nation in the capacity of a duly authorised missionary under the authority of the president of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating ... scriptures into their language, with the permission and approval of the Cherokee nation, ... this defendant further says, that this prosecution the state of Georgia ought not to have or maintain, because, several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit, at Hopewell, at Holston, at Philadelphia, etc. and, by which treaties, the US acknowledges the Cherokee nation to be a sovereign nation, authorised to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several states.
(because of this, Worcester said, laws drafted by Georgia which seek to control the Cherokee nation - such as laws to decide who could enter into trade with the Cherokee, or who could enter their land, or laws that forced US citizens to take a pledge to Georgia before letting them enter Cherokee land, were unconstitutional, since the treaties said that only the Feds had the right to make laws governing the treaties.)
[Worcester argues that] the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the congress of the United States; and because the said laws are repugnant to the statute of the United States, ... and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment.
(Worcester was being prosecuted in Georgia for breaking Georgia's laws regarding who could go onto Cherokee land, in spite of the fact that Georgia did not have the legal right to make such laws. He was arguing here that Georgia should not have the right to prosecute him in their courts. The court basically laughed at him and threw him in jail for 4 years.)
{Worcester says Georgia's] act is, also, unconstitutional; because it interferes with, and attempts to regulate and control, the intercourse with the Cherokee nation, which belongs, exclusively, to congress and, because, also, it is repugnant to the statute of the United States, entitled "an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers."
The indictment and plea in this case draw in question, we think, the validity of the treaties made by the United States with the Cherokee Indians; ...They also draw into question the validity of a statute of the state of Georgia, "on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity."
... the acts of the legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighbouring counties of the state, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence.
It enacts that "all white persons, residing within the limits of the Cherokee nation...without a license or permit from his excellency the governor, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and... shall be punished by confinement to the penitentiary, at hard labour, for a term not less than four years."
...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, ... is an examination of the rightfulness of this claim.
(and here we start with the history. This explains the mindset of the colonists back then....)
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 comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion 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 country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise 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 fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, ...a rightful property in the soil, ...or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?
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 descend. 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 pretensions.
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 (remember this from Johnson v. McIntosh? )governments, which title might be consummated by possession."
This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making 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 european discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before 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.
(this is basically "indian title" - meaning the indians had the right to occupy their lands, but that they could not sell them or treaty with foreign nations... it meant that the federal government had the right to sell their lands or control them, and that they were subordinate to the feds, basically that they were domestic dependent nations.)
The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive 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. So far 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 exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.
(so Britain started out this way with the Indians, and then when America became a separate country, they kept up with it.... it was done in the first place, so why stop now? is essentially what the court is saying.)
Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching 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 occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble 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 America, 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.
(so what gave the King the right to decide who got land outside of his kingdom? whose bright idea was this?)
The power of making war is conferred by these charters 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 enterprise 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 power 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.
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 invaded, and of an enemy who has given just cause of war.
The charter to Georgia recites: "and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war by the neighbouring savages, was laid waste by fire and sword, and great numbers of the English inhabitants miserably massacred; and our loving subjects, who now inhabit there, by reason of the smallness of their numbers, [are vulnerable]
The power of war (that the federal government gives to the states) is given only for defence, not for conquest.
The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity -- objects to be accomplished by conciliatory conduct and good example; not by extermination.
[The Indians signed treaties with the federal government] in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.
(so basically, the Crown, and then the US, left the internal affairs of the Indians alone - and if THEY did so, then Georgia certainlyhad no right to interfere!)
The early journals of congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions."
The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which might excite hostility was avoided.
During the war of the revolution, the Cherokees took part with the British. After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the was continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to impress on the Cherokees the same respect for congress which was before felt for the king of Great Britain. This may account for the language of the treaty of Hopewell.There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.
When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: did the Cherokees come to the seat of the American government to solicit peace; or, did the American commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York. The word "give," then, has no real importance attached to it.
The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power. (not even Georgia!)
The general law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular potentate whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves -- an engagement to punish aggressions on them. It involved, practically, no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character.
They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected.
Now in the Cherokee's treaty with the US, (see below to read it) it says, "for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper." (again, this means the FEDS, NOT GEORGIA!)
To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them.
This treaty's essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States.
The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of Holston was negotiated in July 1791. The existing constitution of the United States had been then adopted, and the government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of his sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee nation.
This relation between the Cherokee and the US was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.
This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.
To the general pledge of protection have been added several specific pledges, deemed valuable by the Indians.Some of these restrain the citizens of the United States from encroachments on the Cherokee country, and provide for the punishment of intruders.
The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union. Is this the rightful exercise of power, or is it usurpation?
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.
(woot!)
Now for the decision: The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.
Can this court revise, and reverse it?
... 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; guaranty 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 in error, who was residing in the nation with its permission, ...is also a violation.
Will these powerful considerations avail the plaintiff in error? We think they will.
It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Georgia, condemning Samuel A. Worcester to hard labour, in the penitentiary of the state of Georgia, for four years, was pronounced by that court under colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled.
Dissents not discussed here.
So how much of this made sense to everyone? Questions? Comments? Anyone? Next time I will go into what all of this meant.
Worcester v. Georgia (31 U.S. 515) - in this case, Marshall basically said that the indians were a sovereign nation, and Georgia had no right to try to usurp the federal power to rule over the indian nations - the indians dealt with the FEDS, not the STATES. This is the famous case where President Andrew Jackson (asshat) said "Marshall has made his decision, now let him enforce it" - basically saying the US would not stand by their own laws.
I am trimming this case down, but here is the text of the decision... next time I will discuss what Marshall was getting at...
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 Cherokee Nation)
The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United States.
(the law that Worcester (a missionary) was accused of breaking was going into the Indian lands, without a license, which the State of Georgia said anyone had to have.)
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, are all involved in the subject now to be considered.
The ... important inquiry is, does it exhibit a case cognizable by this tribunal?
The indictment charges the plaintiff in error, and others, being white persons, with the offence of "residing within the limits of the Cherokee nation without a license," and "without having taken the oath to support and defend the constitution and laws of the state of Georgia."
The defendant in the state court ... filed the following plea:
"And the said Samuel A. Worcester, ... says, that on the 15th day of July in the year 1831, he was... a resident in the Cherokee nation; and that the said supposed crime or crimes, ... were committed, if committed at all, [within the] Cherokee nation, out of the jurisdiction of this court, [Worcester says he is citizen of... Vermont, and that he entered the ...Cherokee nation in the capacity of a duly authorised missionary under the authority of the president of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating ... scriptures into their language, with the permission and approval of the Cherokee nation, ... this defendant further says, that this prosecution the state of Georgia ought not to have or maintain, because, several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit, at Hopewell, at Holston, at Philadelphia, etc. and, by which treaties, the US acknowledges the Cherokee nation to be a sovereign nation, authorised to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several states.
(because of this, Worcester said, laws drafted by Georgia which seek to control the Cherokee nation - such as laws to decide who could enter into trade with the Cherokee, or who could enter their land, or laws that forced US citizens to take a pledge to Georgia before letting them enter Cherokee land, were unconstitutional, since the treaties said that only the Feds had the right to make laws governing the treaties.)
[Worcester argues that] the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the congress of the United States; and because the said laws are repugnant to the statute of the United States, ... and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment.
(Worcester was being prosecuted in Georgia for breaking Georgia's laws regarding who could go onto Cherokee land, in spite of the fact that Georgia did not have the legal right to make such laws. He was arguing here that Georgia should not have the right to prosecute him in their courts. The court basically laughed at him and threw him in jail for 4 years.)
{Worcester says Georgia's] act is, also, unconstitutional; because it interferes with, and attempts to regulate and control, the intercourse with the Cherokee nation, which belongs, exclusively, to congress and, because, also, it is repugnant to the statute of the United States, entitled "an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers."
The indictment and plea in this case draw in question, we think, the validity of the treaties made by the United States with the Cherokee Indians; ...They also draw into question the validity of a statute of the state of Georgia, "on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity."
... the acts of the legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighbouring counties of the state, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence.
It enacts that "all white persons, residing within the limits of the Cherokee nation...without a license or permit from his excellency the governor, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and... shall be punished by confinement to the penitentiary, at hard labour, for a term not less than four years."
...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, ... is an examination of the rightfulness of this claim.
(and here we start with the history. This explains the mindset of the colonists back then....)
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 comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion 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 country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise 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 fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, ...a rightful property in the soil, ...or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?
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 descend. 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 pretensions.
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 (remember this from Johnson v. McIntosh? )governments, which title might be consummated by possession."
This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making 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 european discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before 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.
(this is basically "indian title" - meaning the indians had the right to occupy their lands, but that they could not sell them or treaty with foreign nations... it meant that the federal government had the right to sell their lands or control them, and that they were subordinate to the feds, basically that they were domestic dependent nations.)
The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive 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. So far 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 exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.
(so Britain started out this way with the Indians, and then when America became a separate country, they kept up with it.... it was done in the first place, so why stop now? is essentially what the court is saying.)
Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching 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 occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble 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 America, 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.
(so what gave the King the right to decide who got land outside of his kingdom? whose bright idea was this?)
The power of making war is conferred by these charters 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 enterprise 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 power 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.
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 invaded, and of an enemy who has given just cause of war.
The charter to Georgia recites: "and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war by the neighbouring savages, was laid waste by fire and sword, and great numbers of the English inhabitants miserably massacred; and our loving subjects, who now inhabit there, by reason of the smallness of their numbers, [are vulnerable]
The power of war (that the federal government gives to the states) is given only for defence, not for conquest.
The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity -- objects to be accomplished by conciliatory conduct and good example; not by extermination.
[The Indians signed treaties with the federal government] in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.
(so basically, the Crown, and then the US, left the internal affairs of the Indians alone - and if THEY did so, then Georgia certainlyhad no right to interfere!)
The early journals of congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions."
The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which might excite hostility was avoided.
During the war of the revolution, the Cherokees took part with the British. After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the was continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to impress on the Cherokees the same respect for congress which was before felt for the king of Great Britain. This may account for the language of the treaty of Hopewell.There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.
When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: did the Cherokees come to the seat of the American government to solicit peace; or, did the American commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York. The word "give," then, has no real importance attached to it.
The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power. (not even Georgia!)
The general law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular potentate whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves -- an engagement to punish aggressions on them. It involved, practically, no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without involving a surrender of their national character.
They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected.
Now in the Cherokee's treaty with the US, (see below to read it) it says, "for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper." (again, this means the FEDS, NOT GEORGIA!)
To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them.
This treaty's essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States.
The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of Holston was negotiated in July 1791. The existing constitution of the United States had been then adopted, and the government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of his sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee nation.
This relation between the Cherokee and the US was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.
This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.
To the general pledge of protection have been added several specific pledges, deemed valuable by the Indians.Some of these restrain the citizens of the United States from encroachments on the Cherokee country, and provide for the punishment of intruders.
The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union. Is this the rightful exercise of power, or is it usurpation?
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.
(woot!)
Now for the decision: The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.
Can this court revise, and reverse it?
... 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; guaranty 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 in error, who was residing in the nation with its permission, ...is also a violation.
Will these powerful considerations avail the plaintiff in error? We think they will.
It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Georgia, condemning Samuel A. Worcester to hard labour, in the penitentiary of the state of Georgia, for four years, was pronounced by that court under colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled.
Dissents not discussed here.
So how much of this made sense to everyone? Questions? Comments? Anyone? Next time I will go into what all of this meant.
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