marshall cherokee nation v georgia

8/18/2019 Marshall Cherokee Nation v Georgia

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Cherokee Nation v. State of Georgia

John Marshall

1831

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

fro the e!ecution of certain la"s of that state, "hich as is alleged, go directly to annihilate the

Cherokees as a political society, and to sei#e, for the use of Georgia, the lands of the nation

"hich have been assured to the by the $nited %tates in solen treaties repeatedly ade andstill in force.

&f courts "ere peritted to indulge their sypathies, a case better calculated to e!cite the canscarcely be iagined. ' people once nuerous, po"erful, and truly independent, found by our

ancestors in the (uiet and uncontrolled possession of an aple doain, gradually sinking

beneath our superior policy, our arts, and our ars, have yielded their lands by successive

treaties, each of "hich contains a solen guarantee of the residue, until they retain no ore oftheir forerly e!tensive territory than is deeed necessary to their cofortable subsistence. To

preserve this renant the present application is ade.

)efore "e can look into the erits of the case, a preliinary in(uiry presents itself. *as thisCourt jurisdiction of the cause+

The rd 'rticle of the Constitution describes the e!tent of the judicial po"er. The -nd %ection

closes an enueration of the cases to "hich it is e!tended, "ith controversies between a state or

the citizens thereof, and foreign states, citizens, or subjects. ' subse(uent clause of the saesection gives the %upree Court original jurisdiction in all cases in "hich a state shall be a party.

The party defendant ay then un(uestionably be sued in this Court. May the plaintiff sue in it+ &s

the Cherokee Nation a foreign state in the sense in "hich that ter is used in the Constitution+

The counsel for the plaintiffs have aintained the affirative of this proposition "ith great

earnestness and ability. %o uch of the arguent as "as intended to prove the character of theCherokees as a state, as a distinct political society separated fro others, capable of anaging its

o"n affairs and governing itself, has, in the opinion of a ajority of the judges, been copletely

successful. They have been uniforly treated as a state fro the settleent of our country. Thenuerous treaties ade "ith the by the $nited %tates recogni#e the as a people capable of

aintaining the relations of peace and "ar, of being responsible in their political character for

any violation of their engageents, or for any aggression coitted on the citi#ens of the $nited%tates by any individual of their counity. a"s have been enacted in the spirit of these


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political connection "ith the "ould 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 fraers of our Constitution had notthe &ndian tribes in vie" "hen they opened the courts of the $nion to controversies bet"een a

state or the citi#ens thereof and foreign states.

&n considering this subject, the habits and usages of the &ndians in their intercourse "ith their

"hite neighbors ought not to be entirely disregarded. 't the tie the Constitution "as fraed,the idea of appealing to an 'erican court of justice for an assertion of right or a redress of

"rong had perhaps never entered the ind of an &ndian or of his tribe. Their appeal "as to the

toaha"k, or to the governent. This "as "ell understood by the statesen "ho fraed theConstitution of the $nited %tates, and ight furnish soe reason for oitting to enuerate the

aong the parties "ho ight sue in the courts of the $nion. )e this as it ay, the peculiar

relations bet"een the $nited %tates and the &ndians occupying our territory are such that "e

should feel uch difficulty in considering the as designated by the ter foreign state "ere

there no other part of the Constitution "hich ight shed light on the eaning of these "ords. )ut"e think that in construing the, considerable aid is furnished by that clause in the 4th %ection

of the rd 'rticle, "hich epo"ers Congress to regulate commerce with foreign nations, andamong the several states, and with the Indian tribes.

&n this clause they are as clearly contradistinguished by a nae appropriate to theselves fro

foreign nations as fro the several states coposing the $nion. They are designated by a distinct

appellation1 and as this appellation can be applied to neither of the others, neither can theappellation distinguishing either of the others be in fair construction applied to the. The objects

to "hich the po"er of regulating coerce ight be directed are divided into three distinct

classes: foreign nations, the several states, and &ndian tribes. 5hen foring this article, the

Convention considered the as entirely distinct. 5e cannot assue that the distinction "as lostin fraing a subse(uent article, unless there be soething in its language to authori#e the

assuption.

Foreign nations is a general ter, the application of "hich to &ndian tribes, "hen used in the'erican Constitution, is at best e!treely (uestionable. &n one article in "hich a po"er is

given to be e!ercised in regard to foreign nations generally, and to the &ndian tribes particularly,

they are entioned as separate in ters clearly contradistinguishing the fro each other. 5e perceive plainly that the Constitution in this article does not coprehend &ndian tribes in the

general ter foreign nations1 not, "e presue, because a tribe ay not be a nation but because it

is not foreign to the $nited %tates. 5hen, after"ard, the ter foreign state is introduced, "e

cannot ipute to the Convention the intention to desert its forer eaning and to coprehend&ndian tribes "ithin it, unless the conte!t force that construction on us. 5e find nothing in the

conte!t and nothing in the subject of the article "hich leads to it.

The Court has besto"ed its best attention on this (uestion and, after ature deliberation, theajority is of opinion that an &ndian tribe or nation "ithin the $nited %tates is not a foreign state

in the sense of the Constitution, and cannot aintain an action in the courts of the $nited %tates.


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' serious additional objection e!ists to the jurisdiction of the Court. &s the atter of the bill the

proper subject for judicial in(uiry and decision+ &t seeks to restrain a state fro the forcible

e!ercise of legislative po"er over a neighboring people, asserting their independence1 their rightto "hich the state denies. 6n several of the atters alleged in the bill, for e!aple on the la"s

aking it criinal to e!ercise the usual po"ers of self7governent in their o"n country by the

Cherokee Nation, this Court cannot interpose, at least in the for in "hich those atters are presented.

That part of the bill "hich respects the land occupied by the &ndians, and prays the aid of the

Court to protect their possession, ay be ore doubtful. The ere (uestion of right ight

perhaps be decided by this Court in a proper case "ith proper parties. )ut the Court is asked todo ore than decide on the title. The bill re(uires us to control the legislature of Georgia, and to

restrain the e!ertion of its physical force. The propriety of such an interposition by the Court ay

be "ell (uestioned. &t savors too uch of the e!ercise of political po"er to be "ithin the proper province of the Judicial /epartent )ut the opinion on the point respecting parties akes it

unnecessary to decide this (uestion.

&f it be true that the Cherokee Nation have rights, this is not the tribunal in "hich those rights are

to be asserted. &f it be true that "rongs have been inflicted and that still greater are to beapprehended, this is not the tribunal "hich can redress the past or prevent the future.

The otion for an injunction is denied.

marshall cherokee nation v georgia

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