They have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed with fidelity all their engagements by treaty with the United States. Under the promised "patronage and good neighbourhood" of the United States, a portion of the people of the nation have become civilized Christians and agriculturists, and the bill alleges that, in these respects, they are willing to submit to a comparison with their white brethren around them.
The bill claims for the Cherokee Nation the benefit of the provision in the Constitution that treaties are the supreme law of the land, and all judges are bound thereby; of the declaration in the Constitution that no State shall pass any law. It asserts that the Constitutional provision that Congress shall have power to regulate commerce with the Indian tribes is a power which, from its nature, is exclusive, and consequently forbids all interference by any one of the States. That Congress have, in execution of this power, passed various acts, and, among others, the act of , "to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.
The bill proceeds to state that, in violation of these treaties, of the Constitution of the United States, and of the Act of Congress of , the State of Georgia, at a session of her Legislature held in December in the year , passed an act, which received the assent of the Governor of that State on the twentieth day of that month and year, entitled,. That afterwards, to-wit in the year , the Legislature of the said State of Georgia passed another act, which received the assent of the Governor on the 19th December of that year, entitled,.
The effect of these laws, and their purposes, are stated to be to parcel out the territory of the Cherokees; to extend all the laws of Georgia over the same; to abolish the Cherokee laws, and to deprive the Cherokees of the protection of their laws;. All these laws are averred to be null and void because repugnant to treaties in full force, to the Constitution of the United States, and to the Act of Congress of The bill then proceeds to State the interference of President Washington for the protection of the Cherokees, and the resolutions of the Senate in consequence of his reference of the subject of intrusions on their territory.
That, in , the State of Georgia, in ceding to the United States a large body of lands within her alleged chartered limits and imposing a condition that the Indian title should be peaceably extinguished, admitted the subsisting Indian title. That cessions of territory have always been voluntarily made by the Indians in their national character, and that cessions have been made of as much land as could be spared, until the cession of ,. The bill then refers to the various applications of Georgia to the United States to extinguish the Indian title by force, and her denial of the obligations of the treaties with the Cherokees, although, under these treaties, large additions to her disposable lands had been made, and states that Presidents Monroe and Adams, in succession, understanding the articles of cession and agreement between the State of Georgia and the United States in the year as binding the United States to extinguish the Indian title so soon only as it could be done peaceably and on reasonable terms, refused themselves to apply force to these complainants.
The State of Georgia, not having succeeded in these applications to the Government of the United States, have resorted to legislation, intending to force, by those means, the Indians from their territory. Unwilling to resist by force of arms these pretensions and efforts, the bill states that application for protection, and for the execution of the guarantee of the treaties, has been made by the Cherokees to the present President of the United States, and they have received for answer "that the President of the United States has no power to protect them against the laws of Georgia.
The bill proceeds to refer to the act of Congress of entitled "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 Mississippi. The complainants have not chosen to remove, and this, it is alleged, it is sufficient for the complainants to say; but they proceed to state that they are fully satisfied with the country they possess; the climate is salubrious; it is convenient for commerce and intercourse; it contains schools in which they can obtain teachers from the neighbouring States, and places for the worship of God, where Christianity is taught by missionaries and pastors easily supplied from the United States.
The country, too,. Little is known of the country west of the Mississippi, and, if accepted, the bill asserts it will be the grave not only of their civilization and Christianity, but of the nation itself. The place to which they removed under this last treaty is said to be exposed to incursions of hostile Indians, and that they are. They have therefore, decidedly rejected the offer of exchange. The bill then proceeds to state various acts under the authority of the laws of Georgia in defiance of the treaties referred to, and of the Constitution of the United States, as expressed in the act of , and that the State of Georgia has declared its determination to continue to enforce these laws so long as the complainants shall continue to occupy their territory.
But while these laws are enforced in a manner the most harassing and vexatious to your complainants, the design seems to have been deliberately formed to carry no one of these cases to final decision in the State courts, with the view, as the complainants believe and therefore allege, to prevent any one of the Cherokee defendants from carrying those cases to the Supreme Court of the United States by writ of error for review under the twenty-fifth section of the act of Congress of the United States, passed in the year , and entitled "An act to establish the judicial courts of the United States.
Numerous instances of proceedings are set forth at large in the bill. The complainants expected protection from these unconstitutional acts of Georgia by the troops of the United States, but notice has been given by the commanding officer of those troops to John Ross, the principal chief of the Cherokee Nation, that "these troops, so far from protecting the Cherokees, would cooperate with the civil officers of Georgia in enforcing their laws upon them.
These proceedings, it is alleged, are wholly inconsistent with equity and good conscience; tend to the manifest wrong of the complainants; and violate the faith of the treaties to which Georgia and the United States are parties, and of the Constitution of the United States. These wrongs are of a character wholly irremediable by the common law, and these complainants are wholly without remedy of any kind except by the interposition of this honourable Court. The bill avers that this Court has, by the Constitution and laws of the United States, original jurisdiction of controversies between a State and a foreign state, without any restriction as to the nature of the controversy; that, by the Constitution, treaties are the supreme law of the land.
That, as a foreign state, the complainants claim the exercise of the powers of the Court of protect them in their rights, and that the laws of Georgia, which interfere with their rights and property, shall be declared void, and their execution be perpetually enjoined. The bill States that John Ross is "the principal chief and executive head of the Cherokee Nation," and that, in a full and regular council of that nation, he has been duly authorised to institute this and all other suits which may become necessary for the assertion of the rights of the entire nation. The bill then proceeds in the usual form to ask and answer to the allegations contained in it, and.
On the day appointed for the hearing, the counsel for the complainants filed a supplemental bill, sworn to by Richard Taylor, John Ridge, and W. Coodey of the Cherokee Nation of Indians, before a justice of the peace of the county of Washington in the district of Columbia. The supplemental bill states that, since their bill, now submitted, was drawn, the following acts, demonstrative of the determination of the State of Georgia to enforce her assumed authority over the complainants and their territory, property, and jurisdiction have taken place.
The individual, called in that bill Corn Tassel and mentioned as having been arrested in the Cherokee territory under process issued under the laws of Georgia, has been actually hung in defiance of a writ of error allowed by the Chief Justice of this Court to the final sentence of the Court of Georgia in his case. That writ of error, having been received by the Governor of the State, was, as the complainants are informed and believe, immediately communicated by him to the Legislature of the.
State, then in session, who promptly resolved, in substance, that the Supreme Court of the United States had no jurisdiction over the subject, and advised the immediate execution of the prisoner under the sentence of the State Court, which accordingly took place. The complainants beg leave farther to state that the Legislature of the State of Georgia, at the same session, passed the following laws, which have received the sanction of the Governor of the State.
Under this law, it is stated that the lands within the boundary of the Cherokee territory are to be surveyed, and to be distributed by lottery among the people of Georgia. At the same session, the Legislature of Georgia passed another act, entitled "An act to declare void all contracts hereafter made with the Cherokee Indians, so far as the Indians are concerned," which act received the assent of the Governor of the State on the 23d of December, The Legislature of Georgia, at its same session, passed another law, entitled "An act to provide for the temporary disposal of the improvements and possessions purchased from certain Cherokee Indians and residents," which act received the assent of the Governor of the State the 22d December The supplemental bill further states the proceedings of the Governor of Georgia, under these laws, and that he has stationed an armed force of the citizens of Georgia at the gold mines within the territory of the complainants, who are engaged in enforcing the laws of Georgia.
Additional acts of violence and injustice are said to have been done under the authority of the laws of Georgia, and by her officers and agents, within the Cherokee territory. The complainants allege that the several legislative acts, herein set forth and referred to, are in direct violation of the treaties enumerated in their bill, to which this is a supplement, as well as in direct violation of the Constitution of the United States, and the act of Congress passed under its authority in the year , entitled, "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.
They pray that this supplement may be taken and received as a part of their bill; that the several laws of Georgia herein set forth may be declared by the decree of this Court to be null and void, on the ground of the repugnancy to the Constitution, laws, and treaties set forth above, and in the bill to which this is a supplement; and that these complainants may have the same relief by injunction and a decree of peace, or otherwise, according to equity and good conscience, against these laws as against those which are the subject of their bill as first drawn.
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 Cherokees 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 the citizens thereof, and foreign states, citizens, or subjects.
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 recognize 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.
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The acts of our Government plainly recognize 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. In the 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. The Indian Territory is admitted to compose a part of the United States. In all our maps, geographical treatises, 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.
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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 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 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 connexion with them, would.
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 neighbours 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 appellation 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. Intending to give the whole power 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.
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. 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.
We find nothing in the context, and nothing in the subject of the article, which leads to it. The Court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or Nation within the United States is not a foreign state in the sense of the Constitution, and cannot maintain an action in the Courts of the United States. 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 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 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 propriety of such an interposition by the Court may be well questioned. It savours 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.
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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. In pursuance of my practice in giving an opinion on all Constitutional questions, I must present my views on this. With the morality of the case I have no concern; I am called upon to consider it as a legal question. The object of this bill is to claim the interposition of this Court as the means of preventing the State of Georgia, or the public functionaries of the State of Georgia, from asserting certain rights and powers over the country and people of the Cherokee Nation.
It is not enough, in order to come before this Court for relief, that a case of injury, or of cause to apprehend injury, should be made out. Besides having a cause of action, the complainant must bring himself within that description of parties, who alone are permitted, under the Constitution, to bring an original suit to this Court. It is essential to such suit that a State of this union should be a party; so says the second member of the second section of the third article of the Constitution; the other party must, under the control of the Eleventh Amendment, be another State of the union, or a foreign state.
In this case, the averment is that the complainant is a foreign state. Until these questions are disposed of, we have no right to look into the nature of the controversy any farther than is necessary to determine them. The first of the questions necessarily resolves itself into two: 1. Are the Cherokees a State? Are they a foreign state? I cannot but think that there are strong reasons for doubting the applicability of the epithet "state" to a people so low in the grade of organized society as our Indian tribes most generally are.
I would not here be understood as speaking of the Cherokees under their present form of government, which certainly must be classed among the most approved forms of civil government. Whether it can be yet said to have received the consistency which entitles that people to admission into the family of nations is, I conceive, yet to be determined by the executive of these States.
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Until then, I must think that we cannot recognize it as an existing State,. There are great difficulties hanging over the question, whether they can be considered as States under the Judiciary Article of the Constitution. They never have been recognized as holding sovereignty over the territory they occupy. It is in vain now to inquire into the sufficiency of the principle that discovery gave the right of dominion over the country discovered.
When the populous and civilized nations beyond the Cape of Good Hope were visited, the right of discovery was made the ground of an exclusive right to their trade, and confined to that limit. When the eastern coast of this continent, and especially the part we inhabit, was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government, the right was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverer.
It cannot be questioned that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. From that source we derive our rights, and there is not an instance of a cession of land from an Indian nation in which the right of sovereignty is mentioned as a part of the matter ceded.
It may be suggested that they were uniformly cessions of land without inhabitants, and therefore words competent to make a cession of sovereignty were unnecessary. This, however, is not a full answer, since soil, as well as people, is the object of sovereign action, and may be ceded with or without the sovereignty, or may be ceded with the express stipulation that the inhabitants shall remove.
In all the cessions to us from the civilized states of the old world, and of our transfers among ourselves, although of the same property, under the same circumstances, and even when occupied by these very Indians, the express cession of sovereignty is to be found. In the very treaty of Hopewell, the language or evidence of which is appealed to as the leading proof of the existence of this supposed State, we find the commissioners of the United States expressing themselves in these terms.
This is certainly the language of sovereigns and conquerors, and not the address of equals to equals. And again, when designating the country they are to be confined to, comprising the very territory which is the subject of this bill, they say, "Art. The boundary allotted to the Cherokees for their hunting grounds" shall be as therein described.
Certainly this is the language of concession on our part, not theirs, and when the full bearing and effect of those words, "for their hunting grounds" is considered, it is difficult to think that they were then regarded as a State, or even intended to be so regarded. It is clear that it was intended to give them no other rights over the territory than what were needed by a race of hunters, and it is not easy to see how their advancement beyond that State of society could ever have been promoted, or, perhaps, permitted, consistently with the unquestioned rights of the States, or United States, over the territory within their limits.
The preemptive right, and exclusive right of conquest in case of war, was never questioned to exist in the States which circumscribed the whole or any part of the Indian grounds or territory. To have taken it from them by direct means would have been a palpable violation of their rights. But every advance from the hunter state to a more fixed state of society must have a tendency to impair that preemptive right, and ultimately to destroy it altogether, both by increasing the Indian population and by attaching them firmly to the soil.
The hunter state bore within itself the promise of vacating the territory because, when game ceased, the hunter would go elsewhere to seek it. But a more fixed state of society would amount to a permanent destruction of the hope, and, of consequence, of the beneficial character, of the preemptive right.
But it is said, that we have extended to them the means and inducement to become agricultural and civilized. It is true: and the immediate object of that policy was so obvious as probably to have intercepted the view of ulterior consequences. Independently of the general influence of humanity, these people were restless, warlike, and signally cruel in their irruptions during the revolution. The policy, therefore, of enticing them to the arts of peace, and to those improvements which war might lay desolate, was obvious, and it was wise. But the project of ultimately organizing them into States, within the limits of those States which had not ceded or should not cede to the United States the jurisdiction over the Indian territory within their bounds, could not possibly have entered into the contemplation of our government.
Nothing but express authority from the States could have justified such a policy, pursued with such a view. To pursue this subject a little more categorically. As to the first question, it is clear that, as a State ,they are known to nobody on earth but ourselves, if to us; how then can they be said to be recognized as a member of the community of nations?
Would any nation on earth treat with them as such? Suppose, when they occupied the banks of the Mississippi or the sea coast of Florida, part of which in fact the Seminoles now occupy, they had declared war and issued letters of marque and reprisal against us or Great Britain -- would their commissions be respected? If known as a State, it is by us and us alone, and what are the proofs?
The treaty of Hopewell does not even give them a name other than that of the Indians; not even nation or state, but regards them as what they were, a band of hunters, occupying as hunting grounds, just what territory we chose to allot them. And almost every attribute of sovereignty is renounced by them in that very treaty. They acknowledge themselves to be under the sole and exclusive protection of the United States.
They receive the territory allotted to them as a boon from a master or conqueror; the right of punishing intruders into that territory is conceded, not asserted as a right; and the sole and exclusive right of regulating their trade and managing all their affairs in such manner as the government of the United States shall think proper, amounting in terms to a relinquishment of all.
It is true that the twelfth article gives power to the Indians to send a deputy to Congress, but such deputy, though dignified by the name, was nothing and could be nothing but an agent such as any other company might be represented by. It cannot be supposed that he was to be recognized as a minister, or to sit in the Congress as a delegate. There is nothing express and nothing implied that would clothe him with the attributes of either of these characters. As to a seat among the delegates, it could not be granted to him. There is one consequence that would necessarily flow from the recognition of this people as a state which, of itself, must operate greatly against its admission.
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Where is the rule to stop? Must every petty kraal of Indians, designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognized as a State? We should indeed force into the family of nations, a very numerous and very heterogeneous progeny. The Catawbas, having indeed a few more acres than the republic of San Marino, but consisting only of eighty or an hundred polls, would then be admitted to the same dignity.
They still claim independence, and actually execute their own penal laws, such as they are, even to the punishment of death, and have recently done so. We have many ancient treaties with them, and no nation has been more distinctly recognized, as far as such recognition can operate to communicate the character of a State. Certainly not by the treaty of Hopewell, for every provision of that treaty operates to strip it of its sovereign attributes, and nothing subsequent adds anything to that treaty, except using the word Nation instead of Indians.
And as to that article in the treaty of Holston, and repeated in the treaty of Tellico, which guaranties to them their territory, since both those treaties refer to and confirm the treaty of Hopewell, on what principle can it be contended that the guarantee can go farther than to secure to them that right over the territory, which is conceded by the Hopewell treaty, which interest is only that of hunting grounds. The general policy of the. United States, which always looked to these Indian lands as a certain future acquisition, not less than the express words of the treaty of Hopewell, must so decide the question.
If they were not regarded as one of the family of nations at the time of that treaty, even though at that time first subdued and stripped of the attributes of a State, it is clear that, to be regarded now as a State, they must have resumed their rank among nations at some subsequent period. But at what subsequent period? Certainly by no decisive act until they organized themselves recently into a government, and I have before remarked that, until expressly recognized by the executive under that form of government, we cannot recognize any change in their form of existence.
Others have a right to be consulted on the admission of new States into the national family. When this country was first appropriated or conquered by the crown of Great Britain, they certainly were not known as members of the community of nations, and if they had been, Great Britain from that time blotted them from among the race of sovereigns. From that time, Great Britain considered them as her subjects whenever she chose to claim their allegiance, and their country as hers, both in soil and sovereignty.
All the forbearance exercised towards them was considered as voluntary, and as their trade was more valuable to her than their territory, for that reason, and not from any supposed want of right to extend her laws over them, did she abstain from doing so. The right of sovereignty was expressly assumed by Great Britain over their country at the first taking possession of it, and has never since been recognized as in them otherwise than as dependent upon the will of a superior.
The right of legislation is in terms conceded to Congress by the treaty of Hopewell, whenever they choose to exercise it. And the right of soil is held by the feeble tenure of hunting grounds, and acknowledged on all hands subject to a restriction to sell to no one but the United States, and for no use but that of Georgia. They have in Europe sovereign and demi-sovereign States, and States of doubtful sovereignty. But this State, if it be. However, I will enlarge no more upon this point, because I believe, in one view and in one only, if at all, they are or may be deemed a State, though not a sovereign State, at least while they occupy a country within our limits.
Their condition is something like that of the Israelites, when inhabiting the deserts. Though without land that they can call theirs in the sense of property, their right of personal self-government has never been taken from them, and such a form of government may exist though the land occupied be in fact that of another. The right to expel them may exist in that other, but the alternative of departing and retaining the right of self-government may exist in them. And such they certainly do possess; it has never been questioned, nor any attempt made at subjugating them as a people or restraining their personal liberty except as to their land and trade.
It does seem unnecessary on this point to do more than put the question whether the makers of the Constitution could have intended to designate them, when using the epithets "foreign" and "state. We had then just emerged ourselves from a situation having much stronger claims than the Indians for admission into the family of nations, and yet we were not admitted until we had declared ourselves no longer provinces, but States, and shown some earnestness and capacity in asserting our claim to be enfranchised.
Can it then be supposed that, when using those terms, we meant to include any others than those who were admitted into the community of nations, of whom most notoriously the Indians were no part? The argument is that they were States, and if not States of the union, must be foreign states. But I think it very clear that the Constitution neither speaks of them as States or foreign states, but as just what they were, Indian tribes, an anomaly unknown to the books that treat of States, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit, and.
The distinction is clearly made in that section which vests in Congress power to regulate commerce between the United States with foreign nations and the Indian tribes. The language must be applied in one of three senses: either in that of the law of nations, or of the vernacular use, or that of the Constitution. In the first, although it means any State not subject to our laws, yet it must be a State, and not a hunter horde; in the vernacular, it would not be applied to a people within our limits and at our very doors; and in the Constitution, the two epithets are used in direct contradistinction.
The latter words were unnecessary if the first included the Indian tribes. There is no ambiguity, though taken literally; and if there were, facts and circumstances altogether remove it. But, had I been sitting alone in this cause, I should have waived the consideration of personal description altogether, and put my rejection of this motion upon the nature of the claim set up, exclusively.
I cannot entertain a doubt that it is one of a political character altogether, and wholly unfit for the cognizance of a judicial tribunal. There is no possible view of the subject, that I can perceive, in which a Court of justice can take jurisdiction of the questions made in the bill. The substance of its allegations may be thus set out. That the complainants have been from time immemorial lords of the soil they occupy. That the limits by which they hold it have been solemnly designated and secured to them by treaty and by laws of the United States.
That, within those limits, they have rightfully exercised unlimited jurisdiction, passing their own laws and administering justice in their own way. That, in violation of their just rights so secured to them, the State of Georgia has passed laws authorizing and requiring the executive and judicial powers of the State to enter their territory and put down their public functionaries. That, in pursuance of those laws, the functionaries of Georgia have entered their territory with an armed force and put down all powers legislative, executive.
They allege themselves to be a sovereign independent State, and set out that another sovereign State has, by its laws, its functionaries, and its armed force, invaded their State and put down their authority. This is war in fact; though not being declared with the usual solemnities, it may perhaps be called war in disguise. And the contest is distinctly a contest for empire.
It is not a case of meum and tuum in the judicial, but in the political, sense. Not an appeal to laws, but to force. A case in which a sovereign undertakes to assert his right upon his sovereign responsibility; to right himself, and not to appeal to any arbiter but the sword, for the justice of his cause. If the State of Maine were to extend its laws over the province of New Brunswick, and send its magistrates to carry them into effect, it would be a parallel case.
In the Nabob of Arcot's Case, 4 Bro. In the exercise of sovereign right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and subjugation. But there is still another ground in this case which alone would have prevented me from assuming jurisdiction, and that is the utter impossibility of doing justice, at least evenhanded justice, between the parties.
As to restoring the complainant to the exercise of jurisdiction, it will be seen at once that that is no case for the action of a court; and as to quieting him in possession of the soil, what is the case on which the complainant would have this Court to act? Either the Cherokee Nation are a foreign state or they are not. If they are not, then they cannot come here, and if they are, then how can we extend our jurisdiction into their country?
We are told that we can act upon the public functionaries in the State of Georgia, without the limits of the nation. But suppose that Georgia should file a cross-bill, as she certainly may if we can entertain jurisdiction in this case, and should in her bill claim to be put in possession of the whole Indian country, and we should decide in her favour; how is. Say as to soil; as to jurisdiction, it is not even to be considered. From the complainant's own showing, we could not do justice between the parties.
Nor must I be considered as admitting that this Court could, even upon the other alternative, exercise a jurisdiction over the person respecting lands under the jurisdiction of a foreign nation. I know of no such instance. In Penn v. Lord Baltimore, the persons were in England and the land within the king's dominions though in America. There is still another view in which this cause of action may be considered in regard to its political nature. The United States finding themselves involved in conflicting treaties, or at least in two treaties respecting the same property, under which two parties assert conflicting claims; one of the parties, putting itself upon its sovereign right, passes laws which in effect declare the laws and treaties under which the other party claims, null and void.
It proceeds to carry into effect those laws by means of physical force, and the other party appeals to the executive department for protection. Being disappointed there, the party appeals to this Court, indirectly to compel the executive to pursue a course of policy which his sense of duty or ideas of the law may indicate should not be pursued.
That is to declare war against a State, or to use the public force to repel the force and resist the laws of a State, when his judgment tells him the evils to grow out of such a course may be incalculable.
What these people may have a right to claim of the executive power is one thing; whether we are to be the instruments to compel another branch of the government to make good the stipulations of treaties is a very different question. Courts of justice are properly excluded from all considerations of policy, and therefore are very unfit instruments to control the action of that branch of government. There is then a great deal of good sense in the rule laid down in the Nabob of Arcot's Case, to-wit, that, as between sovereigns, breaches of treaty were not breaches of contract cognizable in a Court of justice, independent of the general principle that, for their political acts, States were not amenable to tribunals of justice.
There is yet another view of this subject which forbids our taking jurisdiction. There is a law of the United States which purports to make every trespass set out in the bill to be an offence cognizable in the Courts of the United States. I mean the Act of , which makes it penal to violate the Indian territory. The infraction of this law is, in effect, the burden of complaint.
What then in fact is this bill but a bill to obtain an injunction against the commission of crimes? If their territory has been trespassed upon against the provisions of that act, no law of Georgia could repeal that act or justify the violation of its provisions. And the remedy lies in another Court and form of action, or another branch of jurisprudence. I cannot take leave of the case without one remark upon the leading argument on which the exercise of jurisdiction here over cases occurring in the Indian country has been claimed for the complainant.
Which was that the United States in fact exercised jurisdiction over it by means of this and other acts, to punish offences committed there. But this argument cannot bear the test of principle. For the jurisdiction of a country may be exercised over her citizens wherever they are, in right of their allegiance, as it has been in the instance of punishing offences committed against the Indians. And, also, both under the Constitution and the treaty of Hopewell, the power of Congress extends to regulating their trade, necessarily within their limits.
But this cannot sanction the exercise of jurisdiction beyond the policy of the acts themselves, which are altogether penal in their provisions. As jurisdiction is the first question which must arise in every cause, I have confined my examination of this entirely to that point, and that branch of it which relates to the capacity of the plaintiffs to ask the interposition of this Court.
I concur in the opinion of the Court in dismissing the bill, but not for the reasons assigned. In my opinion there is no plaintiff in this suit, and this opinion precludes any examination into the merits of the bill or the weight of any minor objections. My judgment stops. As the reasons for the judgment of the Court seem to me more important than the judgment itself in its effects on the peace of the country and the condition of the complainants, and as I stand alone on one question of vital concern to both, I must give my reasons in full. The opinion of this Court is of high authority in itself, and the judge who delivers it has a support as strong in moral influence over public opinion as any human tribunal can impart.
On the other hand, I had known and admired Tanus' father, before he lost all his vast fortune and the great estates that had once almost rivalled those of Pharaoh himself. He had been of dark complexion, with Egyptian eyes the colour of polished obsidian, a man with more physical strength than beauty, but with a generous and noble heart — some might say too generous and too trusting, for he had died destitute, with his heart broken by those he had thought his friends, alone in the darkness, cut off from the sunshine of Pharaoh's favour.
Thus it seemed that Tanus had inherited the best from both his parents, except only worldly wealth. In nature and in power he was as his father; in beauty as his mother. So why should I resent my mistress loving him? I loved him also, and, poor neutered thing that I am, I knew that I could never have her for myself, not even if the gods had raised my status above that of slave. Yet such is the perversity of human nature that I hungered for what I could never have and dreamed of the impossible.
Lostris sat on her cushion on the prow with her slave girls sprawled at her feet, two little black girls from Cush, lithe as panthers, entirely naked except for the golden collars around their necks. Lostris herself wore only a skirt of bleached linen, crisp and white as an egret's wing. The skin of her upper body, caressed by the sun, was the colour of oiled cedar wood from the mountains beyond Byblos.
Her breasts were the size and shape of ripe figs just ready for plucking, and tipped with rose garnets. She had set aside her formal wig, and wore her natural hair in a sidelock that fell in a thick dark rope over one breast. The slant of her eyes was enhanced by the silvergreen of powdered malachite cunningly touched to the upper lids. The colour of her eyes was green also, but the darker, clearer green of the Nile when its waters have shrunk and deposited their burden of precious silts.
Between her breasts, suspended on a gold chain, she wore a figurine of Hapi, the goddess of the Nile, fashioned in gold and precious lapis lazuli. Of course it was a superb piece, for I had made it with my own hands for her. Suddenly Tanus lifted his right hand with the fist clenched.
As a single man the rowers checked their stroke and held the blades of their paddles aloft, glinting in the sunlight and dripping water. Then Tanus thrust the steering oar hard over, and the men on the port bank stabbed their backstroke deeply, creating a series of tiny whirlpools in the surface of the green water. The starboard side pulled strongly ahead. The boat spun so sharply that the deck canted over at an alarming angle. Then both banks pulled together and she shot forward. Lostris broke off the song and shaded her eyes to gaze ahead. The other boats of Tanus' squadron were cast like a net across the southern reaches of the lagoon, blocking the main entrance to the great river, cutting off any escape in that direction.
Naturally, Tanus had chosen for himself the northern station, for he knew that this was where the sport would be most furious. I wished it was not so.
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Not that I am a coward, but I have always the safety of my mistress to consider. When her father learned, as he surely would, of her presence in the thick of the hunt, it would go badly enough for me, but if he learned also that I was responsible for allowing her to be in the company of Tanus for a full day, not even my privileged position would protect me from his wrath. His instructions to me regarding this young man were unequivocal. The others were simmering with excitement.
Tanus checked the rowers with a peremptory hand-signal, and the boat glided to a halt and lay rocking gently upon the green waters that were so still that when I glanced overboard and saw my own reflection look back at me, I was struck, as always, by how well my beauty had carried over the years.
To me it seemed that my face was more lovely than the cerulean blue lotus blooms that framed it. I had little time to admire it, however, for the crew were all abustle. One of Tanus' staff officers ran up his personal standard to the masthead. It was the image of a blue crocodile, with its great coxcombed tail held erect and its jaws open. Only an officer of the rank of Best of Ten Thousand was entitled to his own standard.
Tanus had achieved such rank, together with the command of the Blue Crocodile division of Pharaoh's own elite guard, before his twentieth birthday.
Now the standard at the masthead was the signal for the hunt to begin. On the horizon of the lagoon the rest of the squadron were tiny with distance, but their paddles began to beat rhythmically, rising and falling like the wings of wild geese in flight, glistening in the sunlight. From their sterns the multiple wavelets of their wakes were drawn out across the placid waters and lay for a long while on the surface; as though moulded from solid clay.
Tanus lowered the gong over the stern. It was a long bronze tube. He allowed the end of it to sink below the surface. When struck with a hammer of the same metal the shrill, reverberating tones would be transmitted through the water, filling our quarry with consternation. Unhappily for my equanimity, I knew that this could readily turn to a murderous rage.
Tanus laughed at me. Even in his own excitation he had sensed my qualms. For a rude soldier he had unusual perception. It will take your mind off the safety of your own beautiful hide for a while. I was hurt by his levity, but relieved by the invitation, for the sterntower is high above the water. I moved to do his bidding without undignified haste, and, as I passed him, I paused to exhort him sternly, 'Have a care for the safety of my mistress. Do you hear me, boy? Do not encourage her to recklessness, for she is every bit as wild as you are.
He grinned at me now as he had in those days, as cocky and impudent as ever. There is nothing I would relish more, believe me. From there I watched him take up his bow. Already that bow was famous throughout the army, indeed throughout the length of the great river from the cataracts to the sea. I had designed it for him when he had grown dissatisfied with the puny weapons that, up until that time, were all that were available to him.
I had suggested that we should try to fashion a bow with some new material other than those feeble woods that grow in our narrow riverine valley; perhaps with exotic timbers such as the heartwood of the olive from the land of the Hittites or of the ebony from Cush; or with even stranger materials such as the horn of the rhinoceros or the ivory tusk of, the elephant.
No sooner had we made the attempt than we came upon a myriad of problems, the first of which was the brittleness of these exotic materials. In their natural state none of them would bend without cracking, and only the largest and therefore the most expensive elephant tusk would allow us to carve a complete bowstock from it. I solved both these problems by splitting the ivory of a smaller tusk into slivers and gluing these together in sufficient girth and bulk to form a full bow.
Unfortunately it was too rigid for any man to draw. However, from there it was an easy and natural step to laminate together all four of our chosen materials-olive wood, ebony, horn and ivory. Of course, there were many months of experimentation with combinations of these materials, and with various types of glue to hold them together. We never did succeed in making a glue strong enough. In the end I solved this last problem by binding the entire bowstock with electrum wire to prevent it from flying apart: I had two big men assist Tanus in twisting the wire on to it with all their combined strength, while the glue was still hot.
When it cooled, it set to an almost perfect combination of strength and pliability. Then I cut strands from the gut of a great black-maned lion that Tanus hunted and killed with his bronze-bladed war spear out in the desert. These I tanned and twisted together to form a bowstring. The result was this gleaming arc of such extraordinary power that only one man out of all the hundreds who had made the attempt could draw it to full stretch.
The regulation style of archery as taught by the army instructors was to face the target and draw the hocked arrow to the sternum of the chest, hold that aim for a deliberate pause, then loose on command. However, not even Tanus had the strength to draw this bow and hold his aim steadily. He was forced to develop a completely new style. Standing sideways to the target, addressing it over his left shoulder, he would throw up the bow with his left arm outstretched and, with a convulsive heave, draw back the arrow until the feathered flights touched his lips and the muscles of his arms and chest stood proud with the effort.
In that same instant of full extension, seemingly without aiming, he would loose. At first, his arrows flew at random as wild bees leave the hive, but he practised day after day and month after month. The fingers of his right hand became raw and bleeding from the chafing of the bowstring, but they healed and toughened. The inside of his left forearm was bruised and excoriated where the bowstring slashed past it on the release of the arrow, but I fashioned a leather guard to protect it. And Tanus stood at the butts and practised and practised.
Even I lost confidence in his ability to master the weapon but Tanus never gave up. Slowly, agonizingly slowly, he gained control of it to the point where, finally; he could launch three arrows with such rapidity that they were all in the air at the same instant. At least two of the three would strike the target, a copper disc the size of a man's head set up at a distance of fifty paces from where Tanus stood.
Such was the force of those arrows that they would fly cleanly through the metal which was the thickness of my little finger. Tanus named this mighty weapon Lanata which was, quite coincidentally, the discarded baby-name of my mistress. Now he stood in the bows with the woman at his side, and her namesake in his left hand.
They made a marvellous couple; but too obviously so for my peace of mind. I called sharply, 'Mistress! Come back here immediately! It is unsafe where you are. Every one of the crew of the galley saw it, and the boldest of them guffawed. One of those little black vixens that were her handmaidens must have taught Lostris that gesture, which was more appropriate to the ladies of the riverside taverns than to a high-born daughter of the House of Intef. I considered remonstrating with her, but at once abandoned such an imprudent course, for my mistress is amenable to restraint only in certain of her moods.
Instead, I applied myself to beating the bronze gong with sufficient vigour to disguise my chagrin. The shrill, reverberating tone carried across the glassy waters of the lagoon, and instantly the air was filled with the susurration of wings and a shade was cast over the sun as, from the papyrus beds and the hidden pools and open water, a vast cloud of water-fowl rose into the sky. They were of a hundred varieties: black and white ibis with vulturine heads, sacred to the goddess of the river; flights of honking geese in russet plumage, each with a ruby droplet in the centre of its chest; herons of greenish-blue or midnight black, with bills like swords and ponderous wing-beats; and ducks in such profusion that their numbers challenged the eye and the credibility of the beholder.
Wild-fowling is one of the most ardent pursuits of the Egyptian nobility, but that day we were after different game. At that moment, I saw far ahead a disturbance upon the glassy surface. It was weighty and massive, and my spirits quailed, for I knew what terrible beast had moved there. Tanus also had seen it, but his reaction was altogether different from mine.
He gave tongue like a hunting hound, and his men shouted with him and bent to their paddles. The waters roiled once more and Tanus signalled to his steersman to follow the movement, while I hammered upon the gong to bolster and sustain my courage. We reached the spot where last we had seen movement, and the vessel glided to a standstill while every man upon her decks gazed around eagerly. I alone glanced directly over the stern. The water beneath our hull was shallow and almost as clear as the air above us. I shrieked as loudly and as shrilly as my mistress had and leapt back from the stem-rail, for the monster was directly under us.
The hippopotamus is the familiar of Hapi, the goddess of the Nile. It was only with her special dispensation that we could hunt it. To that end Tanus had prayed and sacrificed at the goddess's temple that morning, with my mistress close by his side.