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ARGUMENT,

IN THE CASE OF THE CHEROKEE NATION 08. THE STATE

OF GEORGIA, BEFORE THE SUPREME COURT OF THE UNITED STATES, MARCH 5, 1831.

Motion for an injunction to prevent the execution of certain acts of the legis

lature of the state of Georgia, in the territory of the Cherokee nation of In. dians, on behalf of the Cherokee nation; they claiming to proceed in the supreme court of the United States as a foreign state against the State of Georgia; under the provision of the constitution of the United States, which gives to the court jurisdiction in controversies in which a state of the United States and the citizens thereof, and a foreign state, citizens, or subjects thereof, are ties.

Mr. SERGEANT, in support of the motion for the injunction, after recapitulating the principal heads of the bill, said, that in the brief exposition to be presented of the case of the complainants, he should confine himself strictly and entirely to the judicial aspect of the question, avoiding all political considerations, and every topic which did not conduce directly to a legal conclusion. That he would endeavour still further to simplify the matter, by confining himself, as far as possible, to the very party before the court, the Cherokee nation : without wandering into the discussion of questions about Indians in general, their condition and rights, which must necessarily be vague and indefinite. Each case must at last depend, a few general principles being first settled, upon its own particular circumstances.

With this view, and within these limits, he would consider, and endeavour to establish the following propositions.

1. That the parties before the court were such as, under the constitution, to give to this court original jurisdiction of the complaint made by the one against the other.

2. That such a case or controversy, of a judicial nature, was presented by the bill, as to warrant and require the interposition of the authority of the court.

3. That the facts stated by the complainants, exhibited such a case in equity, as to entitle them to the specific remedy by injunction prayed for in the bill.

In the present stage of the inquiry, and for the purpose of this motion, the statement in the bill was to be received as true.

The points before mentioned, therefore, being made out, there could be no doubt of the right of the complainants to an injunction against the state of Georgia, to issue immediately, and to continue until the coming in of an answer sufficient to dissolve it; or until it should be merged in the general injunction upon a decree in the cause. These points he would now proceed to consider.

1. The power relied upon is contained in the second section of the third article of the constitution of the United States, limited afterwards by the eleventh amendment. “ Section 2. The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority, &c. to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens or subjects.” “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have

appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make.”

The first of these clauses specifies by classification, the cases to which the judicial power of the United States shall extend, comprehending such as from the nature of the subject matter, or from the character of the parties, were proper for that jurisdiction. The second distributes the authority given by the first, among the courts of the union, assigning to cases of national jurisdiction their appropriate forum. It is subordinate to, and in execution of the former.

There can be no doubt, that under this article all cases " arising under treaties” are cases cognizable by the judiciary of the United States. They are within the very words of the article. The reason for including them is obvious, and entirely conclusive. Treaties are declared to be “ The supreme law of the land.” Article 6, section 2. They are placed, in this respect, upon the same footing with the constitution of the United States and acts of congress. As acts of national law, it was equally essential that the national power should be adequate to their construction and their execution, by its own exertion, without dependence upon any other authority, and with that uniformity which could only be secured by a supreme judicial tribunal. As acts of national faith, binding upon the honour, and involving the relations and peace of the whole nation, they had even a stronger claim to the cognizance of the national judiciary. That they are entitled to it, in some of the courts of the union, is not to be denied or disputed. The jurisdiction of this court, in its original or its appellate exercise, as certainly extends to them under the constitution.

The original jurisdiction of the supreme court, so far as concerns the present question, depends upon the fact

that a state, that is, a state of this union, is a party. . It matters not who may be the other party. The dignity of a state entitles the case in which it is a party, to the jurisdiction of the highest tribunal. Chisholm's Ex. vs. State of Georgia, 2 Dall. 419. State of Georgia vs. Brailsford, 2 Dall. 402, 415.

The eleventh amendment of the constitution does not operate, in terms, upon the original jurisdiction : but upon the judicial power of the United States, in certain cases. “ The judicial power of the United States shall not be construed to extend to any case in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. Its operation upon the original jurisdiction of the supreme court is only consequential, by excluding altogether from the cognizance of the federal judiciary, certain cases assigned to it by the first clause of the original article, and which in the distribution of the second clause had been made subjects of that original jurisdiction.

This amendment operates by way of limitation or exception. It applies only to the excepted cases, leaving the jurisdiction and the power, in all other cases, exactly as they stood under the original article. What are the cases specified as exceptions ? They are very plainly and distinctly defined, suits against any one of the United States “by citizens of another state, or by citizens or subjects of any foreign state.” With this exception, which is too plainly expressed to admit of doubt or construction, the whole of the third article remains in full force, and the jurisdictions created by it, as to their extent and distribution, are unaltered. The original jurisdiction of this court, therefore, still exists, wherever it existed before, , unless it be in the case of a suit commenced against a state of the union “by citizens of another state, or by citizens

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or subjects of a foreign state.” It is in full force where

foreign state” is one party, and a “state” of this union is the other party, or where two states are parties. Cohens vs. Virginia, 6 Wheat. 264.

It has sometimes been intimated that the Cherokees are neither citizens of any "state," nor "citizens or subjects of any foreign state.” Supposing for a moment that this imperfect view were correct, what would be the legal, or rather the constitutional result of it? The limitation or exception would not apply to them; and (a state being a party) they would have a right to sue in this court, unless, indeed, it were further alleged that they were some how put out of the protection of the law, and incapacitated to sue at all, which, it is believed, has never been suggested. The matter would stand thus: the case arises under a treaty, and is therefore cognizable by the courts of the union. A "state" is a party. The jurisdiction, then, among the courts of the union, belongs to the supreme court, being given to that tribunal by the constitution as originally made, and not taken away by the amendment. Such would be the result of that argument.

That question, it was admitted, did not arise here; and it was adverted to, only for the light thrown by it upon the case that was under discussion. The amendment, it was known from its history, was intended to prevent suits against "states" by individuals. Cohens vs. Virginia, 6 Wheaton, 406, 407. The description was meant to embrace all individuals who might sue. How are they describ ed? By a classification understood to embrace them all; “ citizens of another state” (of the union) “or citizens or subjects of any foreign state : clearly showing that all who were not citizens of a state, must be in the meaning of the constitution, citizens or subjects of a foreign state.

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