30 U.S. 1 (____) 5 Pet. 1

THE CHEROKEE NATION
vs.
THE STATE OF GEORGIA.

Supreme Court of United States.

*14 The case was argued on the part of the complainants by Mr. Sergeant and Mr. Writ. No counsel appeared for the state of Georgia.

*15 Mr Chief Justice MARSHALL delivered the opinion of the Court.

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." A subsequent clause of the same section gives the supreme court original jurisdiction in all *16 cases in which a state shall be a party. The party defendant may then unquestionably be sued in this court. May the plaintiff sue in it? Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution?

The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state from the settlement of our country. The numerous treaties made with them by the United States 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. 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. The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. 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. But he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else.

*17 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." Treaties were made with some tribes by the state of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to that state, taking back a limited grant to themselves, in which they admit their dependence.

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with 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 *18 be considered by all as an invasion of our territory, and an act of hostility.

These considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the union to controversies between a state or the citizens thereof, and foreign states.

In considering this subject, the habits and usages of the Indians, in their intercourse with their white 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.

The counsel for the plaintiffs contend that the words "Indian *19 tribes" were introduced into the article, empowering congress to regulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the language of the ninth article of the confederation. 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." This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly.

It has been also said, that the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument: their meaning is controlled by the context. This is undoubtedly true. In common language the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context. This may not be equally true with respect to proper names. Foreign nations is a general term, the application of which to Indian tribes, when used in the American constitution, is at best extremely questionable. In one article in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contradistinguishing them from each other. We perceive plainly that the constitution in this article does not comprehend Indian tribes in the general term "foreign nations;" not we presume because a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term "foreign state" is introduced, we cannot impute to the convention the intention to desert its former meaning, and to comprehend Indian tribes within it, unless the context force that *20 construction on us. 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 mere question of right might perhaps be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It 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. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.

The motion for an injunction is denied.

Mr Justice JOHNSON.

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.

*21 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.

Two preliminary questions then present themselves.

1. Is the complainant a foreign state in the sense of the constitution?

2. Is the case presented in the bill one of judicial cognizance?

Until these questions are disposed of, we have no right to look into the nations, the controversy any farther than is necessary to determined them. The first of the questions necessarily resolves itself into two.

1. Are the Cherokees a state?

2. Are they a foreign state?

1. 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. Until then I must think that we cannot recognize it as an existing state, *22 under any other character than that which it has maintained hitherto as one of the Indian tribes or nations.

There are great difficulties hanging over the questions, whether they can be considered as states under the judiciary article of the constitution. 1. 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. "The commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favour and protection of the *23 United States on the following conditions." 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. 4. 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 pre-emptive 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 pre-emptive 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 pre-emptive 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 *24 to prepare them for what was probably then contemplated, to wit, to incorporate them in time into our respective governments: a policy which their inveterate habits and deep seated enmity has altogether baffled. 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.

If these Indians are to be called a state: then,

1. By whom are they acknowledged as such?

2. When did they become so?

3. And what are the attributes by which they are identified with other states.

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 *25 power, legislative, executive and judicial to the United States, is yielded in the ninth article.

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.

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.

But secondly, at what time did this people acquire 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 any thing 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 *26 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.

And, thirdly, by what attributes is the Cherokee nation identified with other states?

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 *27 a state, is still a grade below them all: for not to be able to alienate without permission of the remainder-man or lord, places them in a state of feudal dependence.

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.

But in no sense can they be deemed a foreign state, under the judiciary article.

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." State, and foreign state, are used in contradistinction to each other. 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 *28 having neither laws or government, beyond what is required in a savage state. 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 and judicial, exercised under the government of the Indians.

What does this series of allegations exhibit but a state *29 of war, and the fact of invasion? 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. Cha. Ca. and 1 and 2 Vesey, Jun.), a case of a political character not one half so strongly marked as this; the courts of Great Britain refused to take jurisdiction, because it had its origin in treaties entered into between sovereign states: a case in which the appeal is to the sword and to Almighty justice, and not to courts of law or equity. 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 even handed 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 *30 that decree to be carried into effect? 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 vs. 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; which may often be compelled by the highest considerations or public policy to withhold even the exercise of a positive duty.

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.

*31 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 1802, 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.

I vote for rejecting the motion.

Mr. Justice BALDWIN.

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 *32 me at the threshold, and forbids me to examine into the acts complained of.

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. The judge, who stands alone in decided dissent on matters of the infinite magnitude which this case presents, must sink under the continued and unequal struggle; unless he can fix himself by a firm hold on the constitution and laws of the country. He must be presumed to be in the wrong, until he proves himself to be in the right. Not shrinking even from this fearful issue, I proceed to consider the only question which I shall ever examine in relation to the rights of Indians to sue in the federal courts, until convinced of my error in my present convictions.

My view of the plaintiffs being a sovereign independent nation or foreign state, within the meaning of the constitution, applies to all the tribes with whom the United States have held treaties: for if one is a foreign nation or state, all others in like condition must be so in their aggregate capacity; and each of their subjects or citizens, aliens, capable of suing in the circuit courts. This case then is the case of the countless tribes, who occupy tracts of our vast domain; who, in their collective and individual characters, as states or aliens, will rush to the federal courts in endless controversies, growing out of the laws of the states or of congress.

In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the proceedings of the old congress, from the commencement of the revolution up to the adoption of the constitution; so as to ascertain whether the Indians were considered and treated with as tribes of savages, or independent nations, foreign states on an equality with any other foreign state or nation; and whether Indian affairs were viewed as those of foreign nations, and in connection with this view, refer to the acts of the federal government on the same subject.

*33 In 1781 (1 Laws U.S. 586, &c.) a department for foreign affairs was established, to which was entrusted all correspondence and communication with the ministers or other officers of foreign powers, to be carried on through that office also with the governors and presidents of the several states, and to receive the applications of all foreigners, letters of sovereign powers, plans of treaties, conventions, &c. and other acts of congress relative to the department of foreign affairs; and all communications as well to as from the United States in congress assembled were to be made through the secretary, and all papers on the subject of foreign affairs to be addressed to him. The same department was established under the present constitution in 1789, and with the same exclusive control over all the foreign concerns of this government with foreign states or princes. 2 Laws U.S. 6, 7. In July 1775, congress established a department of Indian affairs, to be conducted under the superintendence of commissioners. 1 Laws U.S. 597. By the ordinance of August 1786, for the regulation of Indian affairs, they were placed under the control of the war department, 1 Laws U.S. 614, continued there by the act of August 1789 (2 Laws U.S. 32, 33), under whose direction they have ever since remained. It is clear then, that neither the old or new government did ever consider Indian affairs, the regulation of our intercourse or treaties with them, as forming any part of our foreign affairs or concerns with foreign nations, states, or princes.

I will next inquire how the Indians were considered; whether as independent nations or tribes, with whom our intercourse must be regulated by the law of circumstances. In this examination it will be found that different words have been applied to them in treaties and resolutions of congress; nations, tribes, hordes, savages, chiefs, sachems and warriors of the Cherokees for instance, or the Cherokee nation. I shall not stop to inquire into the effect which a name or title can give to a resolve of congress, a treaty or convention with the Indians, but into the substance of the thing done, and the subject matter acted on: believing it requires no reasoning to prove that the omission of the words prince, state, sovereignty or nation, cannot divest a contracting party of these national *34 attributes, which are inherent in sovereign power pre and self existing, or confer them by their use, where all the substantial requisites of sovereignty are wanting.

The proceedings of the old congress will be found in 1, Laws U.S. 597, commencing 1st. June 1775, and ending 1st September 1788, of which some extracts will be given. 30th June 1775, "Resolved, that the committee for Indian affairs do prepare proper talks to the several tribes of Indians. As the Indians depend on the colonists for arms, ammunition and clothing, which are become necessary for their subsistence." "That the commissioners have power to treat with the Indians;" "to take to their assistance gentlemen of influence among the Indians." "To preserve the confidence and friendship of the Indians, and prevent their suffering for want of the necessaries of life, £40,000 sterling of Indian goods be imported." "No person shall be permitted to trade with the Indians without a licence;" "traders shall sell their goods at reasonable prices; allow them to the Indians for their skins, and take no advantage of their distress and intemperance;" "the trade to be only at posts designated by the commissioners." Specimens of the kind of intercourse between the congress and deputations of Indians may be seen in pages 602 and 603. They need no incorporation into a judicial opinion.

In 1782, a committee of congress report, that all the lands belonging to the six nations of Indians have been in due form put under the crown as appendant to the government of New York, so far as respects jurisdiction only; that that colony has borne the burthen of protecting and supporting the six nations of Indians and their tributaries for one hundred years, as the dependents and allies of that government; that the crown of England has always considered and treated the country of the six nations as one appendant to the government of New York; that they have been so recognized and admitted by their public acts by Massachusetts, Connecticut, Pennsylvania, Maryland and Virginia: that by accepting this cession, the jurisdiction of the whole western territory, belonging to the six nations and their tributaries, will be vested in the United States, greatly to the advantage of the union [p. 606]. The cession alluded to is the *35 one from New York, March 1st, 1781, of the soil and jurisdiction of all the land in their charter west of the present boundary of Pennsylvania (1 Laws U.S. 471), which was executed in congress and accepted.

This makes it necessary to break in on the historical trace of our Indian affairs, and follow up this subject to the adoption of the constitution. The cession from Virginia in 1784 was of soil and jurisdiction. So from Massachusetts in 1785, from Connecticut in 1800, from South Carolina in 1787, from Georgia in 1802. North Carolina made a partial cession of land, but a full one of her sovereignty and jurisdiction of all without her present limits in 1789. 2 Laws United States 85.

Some states made reservations of lands to a small amount, but, by the terms of the cession, new states were to be formed within the ceded boundaries, to be admitted into the union on an equal footing with the original states; of course, not shorn of their powers of sovereignty and jurisdiction within the boundaries assigned by congress to the new states. In this spirit congress passed the celebrated ordinance of July 1787, by which they assumed the government of the north western territory, paying no regard to Indian jurisdiction, sovereignty, or their political rights, except providing for their protection; authorizing the adoption of laws "which, for the prevention of crimes and injuries, shall have force in all parts of the district; and for the execution of process civil and criminal, the governor has power to make proper division thereof." 1 Laws United States, 477. By the fourth article the said territory, and the states which may be formed therein, shall for ever remain a part of this confederacy of the United States; subject to the articles of confederation, alterations constitutionally made, the acts and ordinances of congress.

This shows the clear meaning and understanding of all the ceding states, and of congress, in accepting the cession of their western lands up to the time of the adoption of the constitution. The application of these acts to the provisions of the constitution will be considered hereafter. A few more references to the proceedings of the old congress in relation to the Indian nations will close this view of the case.

*36 In 1782, a committee, to whom was referred a letter from the secretary at war, reported "that they have