254
CHAPTER l0
A Democratic Revolution,1820-1844
which they haveimproved by their industry. But it seemsto
me visionary to supposethat in this stateof things claims
can be allowedon tracts of country on which they haveneither dwelt nor made improvements,merely becausethey
have seenthem from the mountain or passedthem in the
chase.Submittingto the lawsof the States,and receiving,like
other citizens,protection in their personsand property,they
will erelong becomemergedin the massof our population.
(b) Elias Boudinot, Excerpted from the
CherokeePhoenix, Iune 17, 1829
From the documentswhich we this day lay beforeour readers,thereis not a doubt of the kind of policy,which the present administration of the General Government intends to
pursue relative to the Indians. President]ackson has, as a
neighboring editor remarks,"recognizedthe doctrine contended for by Georgiain its full extent."It is to be regretted
that we werenot undeceivedlong ago,while we werehunters
and in our savagestate.It appearsnow from the communication of the Secretaryof War to the CherokeeDelegation,
that the illustrious Washington, fefferson, Madison and
Monroe were only tantalizing us, when they encouragedus
in the pursuit of agriculture and Government,and when
they afforded us the protection of the United States,by
which we havebeen preservedto this presenttime as a nation. Why were we not told long ago,that we could not be
permitted to establisha governmentwithin the limits of any
state?Then we could haveborne disappointmentmuch easier than now. The pretext ofGeorgia to extendherjurisdiction over the Cherokeeshas alwaysexisted.The Cherokees
havealwayshad a governmentof their own. Nothing, however,wassaid when we were governedby savagelaws,when
the abominablelaw of retaliationcarrieddeathin our midst,
when it was a lawful act to shed the blood of a person
chargedwith witchcraft, when a brother could kill a hrother
with impunity, or an innocent man suffer for an offending
relative.At that time it might havebeena matter of charity t;
haveextendedoverus the mantle of Christianlaws& regulations. But how happensit now, after being fosteredby the
U. States,and advisedby greatand good men to establisha
governmentof regularlaw; when the aid and protection of
the GeneralGovernmenthavebeenpledgedto us;when we,
as dutiful "children" of the President,have followed his instructions and advice,and have establishedfor ourselvesa
governmentof regularlaw; when everythinglooks so promising around us, that a storm is raisedby the extensionof
tyrannical and unchristianlaws,which threatensto blast all
our rising hopesand expectations?
Thereis, aswould naturally be supposed,a greatrejoicing in Georgia.It is a time of "important news"-"gratifring
intelligence"-"The Cherokee lands are to be obtained
speedily''It is evenreportedthat the Cherokeeshavecometo
the conclusionto sell,and move offto the westof the Mississippi-not so fast.We areyet at our homes,at our peaceful
firesides. . . attendingto our farms and usefuloccupations.
Wehad coniluded to giveour readersfully ourihoughts
on the subject,which we, in the aboveremarks,havemerely
introduced,but upon reflection& rememberingour promise,that we will be moderate,we havesuppressed
ourselves,
and havewithheld what we had intendedshould occupyour
editorialcolumn.We do not wish,by any means,unnecessarily to excitethe minds of the Cherokees.
To our home readers
we submit the subjectwithout any specialcomment.They
will judge for themselves.
To our distant readers,who may
wish to know how we feel under presentcircumstances,
we
recommendthe memorial,the leadingarticlein our present
number.We believeit justly containsthe viewsof the nation.
Questions
1. fackson contendedthat the federal government)sIndian policy to date (1g29) had
been counterproductive to its statedgoals.What information did Jacksonprovide to
support his position? Washis reasoningsound?
2.
What did Elias Boudinot argue,and how did his position concerning federal Indian
poliry compare with ]acksont?
3.
Do you think |ackson truly believedthat he was helping the Indians?or was
]acksont rhetoric merely a cynical cover for yet another white seizureof Indian
lands?Explain.
10-8 Decisionin Cherokee
Nation v. Georgia(lS3l)
JohnMarshall
After the War of 1812,rapid population growth and the transportation revolution combined to increasepressureon federal and state authorities to make lands held by Indians
eastof the Mississippi River availableto whites. The stateof Georgia,which had cededits
Nationv. Georgia(lg3l)
l0-8 Decisionin Cherokee
255
westernterritorialclaimsin 1802in return for a promise
of federalassistance
in securing
its possession
of all land within its current borders,*", p;;il;".ry]d"-"n,
aboutas_
sertingits dominion overthe cherokeesand creeks.
A""|r;6;iai
perceivedto be
it
slq;vpaceof federalaction,,Georgia
encroachedon creekll"a, i" i826, elicitinga
]ne
warning from Presiden-t
Iohn eui.r.y Adu-, and nearryp...ip-i*i.rg an armed confrontationwith federalf?r::r Tlr" crgekssarvagej
the situarionby reructantlyagreeingto
their removalwest;most clerokees,however,i'efused
to move.g'.ir,.*a by treatiesdat_
ing backto the 1790s,in which the united states.ecognized
the cherokeenation and its
laws,they drafteda constitutionin rg27that
their
,*r"grrry and exclusive
froclairied
jurisdictionoverspecificalydemarcatea
d;;il;dded
bypromptly
""."Jtr"rl""ar.
declaringcherokeelawsto be null and void
ano announcingits intentionto seizeall remainingIndianlands.Turningto the.federaljudici
ary for*rl.r, trt. Cilrokeessoughtan
injunctionin the Supremecourt whicl wguiaplevelt
Georgiafrom carryingout its de_
tiqT:Th: caseput theMarshallcourt in a bindiMarshall
trrougtt th. Cnerokees
wereon
solidlegalground,but judicial interventionin 1831
seemedfutile in the faceof a hostile
state,a hostilepublic,and a hostilepresident,Andrew
*r,o ,ro, only endorsed
Georgia'sassertionof statesovereigntybut had^arso Iackson,
recentlyfrrn"ainro*gh congress
the Indian RemovalAct of 1g30.T[e s,rpr.-. court
needeito ,tut.
--- -its opinion on the
meritsof the casewithout provokingu.o.rfli.t with
the president.
Source:Excerpt from Cherokee
Nation y. TheStateof
This bill is brought by the CherokeeNation, praying
an injunction to restrainthe Stateof Georgia
from the execution
of certainlawsof that State,which asit is alleged,
go directly
to annihilatethe Cherokeesasa political so.ieiy,
und to s"iz.,
for the use of Georgia,the lanis of the nati#
which have
beenassuredto them by the United Statesin
solemntreaties
repeatedlymadeand still in force.
If the courts were permitted to indulge their
sympa_
thies,a casebetter calculatedto excitett.rri."r,
scarcelybe
imagined. A people once numerous, powerful,
and truly
indepe-ndent,found by our ancestorsin the quiet
and uncontrolledpossession
of an ampledomain,g.aiually sinking
b:i:.,|.our superior policy, our arts anJour
arms,have
yieldedtheir landsby successive
treaties,eachof which con_
tains a solemnguaranteeof the residue,until
they retain no
more of their-formeriy extensiveterritory
than is deemed
necessaryto their comfortablesubsistence.
To preservethis
remnant the presentapplicationis made.
Beforewe canlook into the merits of the case,a prelim_
inary inquiry presentsitself. Has this court judisdiction
of
the cause?
The third articleofthe Constitutiondescribesthe
extent
of the judicial power.The secondsectioncloses
an enumeration of the casesto which it is extended,
with..controversies,,
"betweenthe Stateor the citizensthereof,
and forergnstates,
citizens,or subjects."A subsequentclause
of the samesection gives-the SupremeCourl original jurisdiction
in all
casesin which a stateshall be a party. The
party defendant
may then unquestionablybe sued in this .ou.t.
Uuy th"
Plaintiff sue in it? Is the CherokeeNation a foreign statein
the sensein which that term is usedin the
Constiiution?
.Thecounselfor the plaintiffs havemaintainedthe afifir_
rnatlveofthis proposition with greatearnestness
and ability.
Georgia(1g31).
So much of the argumentaswasintendedto prove
the characterofthe Cherokeesasa State,asa distinct
iolitical society
separatedfrom others,capableof managingits own
affairs
and governingitself,has,in the opinion of a'majority
of the
been completely successful.They h# been uniludges,
formly treatedasa Statefrom the settlementof our
countrv.
The numeroustreatiesmadewith them by the United
States
recognizethem as a peoplecapableof maintaining
the rela_
tions of peaceand wa6 of being responsiblein theii
political
characterfor any violation of theiiengagements,
of fo, ^ny
aggressioncommitted on the citizensof the United Statesby
any individual of their community.Lawshavebeen
enacted
in the spirit of thesetreaties.The acts of our government
plainly recognizethe CherokeeNation as a StJte,
and the
courts arebound by thoseacts.
A question of much more difficulty remains.Do the
Cherokeesconstitute a foreign state in the sense the
of
Constitution?
The counselhaveshownconclusivelythat they arenot a
Stateof the Union, and haveinsistedthat individuallv thev
are aliens,not owing allegianceto the United Stutes.arr ug_
gregateof alienscomposinga Statemust, they say
be a for_
eign state.Eachindividual being foreign,the whoie
must be
foreign.
This argument is imposing, but we must examine it
more closelybeforewe yield to it. The condition of the Indi_
ansin relation to the United Statesis perhapsunlike
that of
any other two peoplein existence.
In the general,nationsnot
owing_^a
common allegianceare foreign to eachother. The
term "foreign nation', is, with strict pioperty, applicable
by
either to the other. But the relation of tfr"'trraiurrs
to the
United Statesis markedby peculiarand cardinaldistinctions
which existnowhereelse.. . .
2s6
CHAPTER 10 A Democratic Revolution, 1820-1844
Though the Indians are acknowledgedto have an unquestionable,and, heretofore, unquestioned right to the
lands they occupyuntil that right shall be extinguishedby a
voluntary cessionto our government,yet it may well be
doubted whether those tribes which residewithin the acknowledgedboundariesof the United Statescan,with strict
accuracy,be denominatedforeign nations.They may,more
correctly,perhaps,be denominateddomesticdependentnations. They occupya territory to which we asserta title independent of their will, which must take effect in point of
possessionwhen their right of possession
ceases.
Meanwhile
they are in a stateof pupilage.Their relation to the United
Statesresemblesthat of a ward to his guardian.
They look to our governmentfor protection;rely upon
its kindness and its power; appealto it for relief to their
wants; and addressthe Presidentas their great father.They
and their country are consideredby foreign nations,aswell
as by ourselves,as being so completely under the sovereignity and dominion of the United States,that any attempt
to acquiretheir lands,or to form a political connectionwith
them, would be consideredby all asan invasionof our territory and an act ofhostility.
Theseconsiderationsgo far to support the opinion that
the framersof our Constitutionhad not the Indian tribes in
view when they openedthe courtsofthe Union to controversiesbetweena Stateof the citizensthereof,and foreignstates.
In consideringthis subject,the habitsand usagesof the
Indiansin their intercoursewith their white neighborsought
not to be entirely disregarded.
At the time the Constitution
wasframed,the ideaof appealingto anAmericancourt of justice for an assertionof right or a.redressof wrong, had perhapsneverenteredthe mind of an Indian or of his tribe.Their
appealwasto the tomahawk,or to the government.This was
well understoodby the statesmenwho framed the Constitution of the United States,and might furnish somereasonfor
omitting to enumeratethem among the partieswho might
suein the courtsof the Union. Be this as it may,the peculiar
relationsbetweenthe United Statesand the Indiansoccupying
our territory are suchthat we should feel much difficulty in
consideringthem as designatedby the term "foreign State,"
were there no other part of the Constitution which might
shedlight on the meaningof thesewords.But we think that in
construingthem, considerableaid is furnishedby that clause
in the eighth section of the third article, which empowers
Congressto "regulatecommercewith foreign nations, and
amongthe severalStates,and with the Indian tribes."
In this clausethey areasclearlycontradistinguishedby a
nameappropriateto themselves
from foreignnationsasfrom
the severalStatescomposingthe Union. They aredesignated
by a distinct appellation;and as this appellationcan be applied to neither ofthe others,neither canthe appellationdistinguishing either of the others be in fair construction
appliedto them. The objectsto which the power of regulating commercemight be directed,are divided into three distinct classes-foreign nations,the severalStates,and Indian
tribes.When forming this article,the conventionconsidered
them asentirely distinct.We cannot assumethat the distinc-
tion waslost in framing a subseq.uent
article,unlesstherefq
somethingin its languageto authorizethe assumption.
The counselfor the plaintiffs contendthat the words,.In_
dian tribes" were introduced into the article empowering
Congressto regulatecommercefor the purposeof removin!
thosedoubtsin which the managementof Indian affairswai
involvedby the languageof the ninth articleof the confeder_
ation. Intending to give the whole power of managingthose
affairsto the governmentabout to be instituted,the conven_
tion conferredit explicitly;and omitted thosequalifications
which embarrassed
the exerciseof it asgrantedin the confed_
eration.This may be admitted without weakeningthe con_
struction which has been intimated. Had the Indian tribes
beenforeign nations,in the view of the convention,this exclusivepowerof regulatingintercoursewith them might have
been,and most probablywould havebeen,specificallygiven
in languageindicating that idea, not in languagecontradistinguishingthem from foreign nations. Congressmight
have been empowered"to regulatecommercewith foreign
nations,including the Indian tribes, and among the several
States."This languagewould havesuggesteditself to statesmen who consideredthe Indian tribesasforeignnations,and
wereyet desirousof mentioningthem particularly.
It hasbeenalsosaid that the samewords havenot necessarilythe samemeaningattachedto them when found in
different parts of the same instrument: their meaning is
controlledby the context.This is undoubtedlytrue. In common languagethe sameword hasvariousmeanings,and the
peculiarsensein which it is usedin any sentenceis to be determined by the context.This may not be equallytrue with
respectto proper names.Foreignnations is a generalterm,
the applicationof which to Indian tribes,when usedin the
American Constitution,is at bestextremelyquestionable.In
one articlein which a poweris givento be exercisedin regard
to foreignnationsgenerally,and to the Indian tribesparticularly, they are mentioned as separatein terms clearly contradistinguishingthem from eachother.We perceiveplainty
that the Constitutionin this articledoesnot comprehendIndian tribesin the generalterm "foreign nations;";ot, we presume,becausea tribe may not be a nation, but becauseit is
not foreign to the United States.When, afterwards,the term
"foreign State"is introduced,we cannot impute to the convention the intention to desertits former meaning,and to
comprehendIndian tribes within it, unlessthe contextforce
that constructionon us.We find nothing in the context,and
nothing in the subjectof the article,which leadSto it.
The court has bestowedits best attention on this question, and,after mature deliberation,the majority is of opinion that an Indian tribe or nation within the United Statesis
not a foreign staff:in the senseof the Constitution,and cannot maintain an action in the courts of the United States.. . .
If it be true that the CherokeeNation haverights,this is
not the tribunal in which thoserights areto be asserted.If it
be true that wrongshavebeeninflicted, and that still greater
areto be apprehended,this is not the tribunal which can redressthe pastor preventthe future.
The motion for an injunction is denied.