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The Cherokees, in this case, approach the court, not individually, but in their aggregate capacity, as Cherokee nation of Indians, a foreign state.” The proposition asserted on their behalf is, that they are “a foreign state," with all the rights and attributes predicated of them in their bill of complaint.
In what manner is this inquiry to be judicially pursued ? What lights are to be followed? What constitutes the judicial evidence of the existence of a foreign state, as such? Fortunately, we are furnished with an answer to these questions by settled and authorative decisions, of this, the highest tribunal in the land. As to new states arising in the revolutions of the world, it is the exclusive right of governments to acknowledge them; and until such recognition by our own government, or by the government of the empire to which such new state previously belonged, courts of justice are bound to consider the ancient state of things as remaining unchanged. Rose vs. Himeley, 4 Cranch, 292. Gelston vs. Hoyt, 3 Wheat. 324. United States vs. Palmer, 3 Wheat. 634. Divina Pastora, 4 Wheat. 63, and note to 65.
In matters of judgment, the ancient state, whatever it was, continues, until it is changed by a competent authority : and of that ancient state, of the changes, if any, it has undergone, the time of those changes, or its continuance to the present time, the acts of our government are authentic and decisive evidence.
Of these acts, establishing judicially the existence and character of other states and nations, the most unequivocal and conclusive must be a treaty. It is the act of the nation ; in its nature, deliberate and solemn; in its obligation, most sacred; and, besides its efficacy as a national compact binding the national faith and honour, it is made obligatory upon individuals, upon authorities and upon tribunals, by the constitutional declaration that it is the supreme law of the land.”
This principle being settled, as it must certainly be conceded to be, how does it apply to the present inquiry?
From the beginning of the existence of the United States as a nation to the present time, there have been no less than fourteen public treaties made with the Cherokee nation of Indians; one under the articles of confederation, and thirteen under the constitution; all of them with the solemnities that belong to public national compacts made between independent states or nations.
The first of these treaties was made as long ago as the year 1785; and the last as recently as the year 1819.
These treaties are at the present moment in full force ; and on the face of them they bear, that on
the they are made by the United States, on the other, by the Cherokee nation.
In inquiring, judicially, into the fact, the first remark that presents itself is, that the aggregate existence of the Cherokees, with capacity to enter into binding national compacts, is ipso facto admitted. How can this be, if they are not a nation or state? They act by public agents, few in number, representing the aggregate or community, and binding all the individuals of which that community is composed, in the same manner as the public agents of the United States, on the other side, contract for the whole people of the United States. How could this be, if there were not such a community or state ?
But it is not by the inference only irresistible as it is) that the fact is established. It is asserted in terms in every treaty, from the first to the last. The treaty of the 28th November 1785 expressly styles them a “nation." Sect. 6. In the succeeding treaties, the same description is applied in almost every line, as any one who will be at the trouble to examine them will perceive. See particularly the preamble of the treaty of Holston, Art. 1, and the treaty of Washington in 1819.
The subjects, too, of these treaties are unequivocally of national character and concernment: war; peace; exchange of prisoners; national limits; mutual rights, which nations only could claim or enjoy ; and mutual duties, which nations only could fulfil.
The obligations are national; the sanctions are national; the breach is national; and the impress of national character, as belonging to the Cherokee Indians, is thus deeply and inseparably fixed upon the treaties in every variety of way, and with them transferred to our statute book as a part of the “supreme law of the land.” Whatever others may say, so long as these treaties remain in force, the Cherokee Indians are, by our laws, a state or nation.
It was not now a question, what the United States might heretofore have done, or what they may do hereafter. That belonged properly to another head of inquiry. The present purpose was only to inquire judicially into the fact as now existing, according to the established principle already stated.
Following the rule of interpretation, or rather, of evidence thus established, were not the Cherokee Indians a “foreign state," within the meaning of the constitution? It would be sufficient to answer, that they certainly are not a state of this union. What then can they be but a foreign state? The constitution knows of but two descriptions of states, domestic and foreign. Those which are not included in the former class must necessarily fall into the latter. Nothing can be clearer than this; following either the language or the meaning of the constitution. There is no third description in that instrument; and there is no case of a state, which was not intended to be within the scope of its judicial authority, whenever circumstances might make it a duty to ourselves or to others to interpose its exercise. It is true that the Cherokee nation have no part or right in the constitution of the United States, because they are a
foreign state, and that constitution is the compact only of the states and citizens of this union. But there is a power given by the constitution which they may invoke when they have a demand of justice; a power conferred upon the authorities of the union, and in its nature conclusive. What reason can be given why it should not equally extend to them as to all other states.
The constitution itself created no new state of things. It operated upon a state then existing, and of very long standing. From the first settlement of the country by Europeans, the Cherokees existed as an independent nation. They never became incorporated with the European settlers, nor subjected by them. It is only by one of these modes, or by utter extinction, that they could cease to exist as a nation. Such as they were at the first, such they have continued to be, and such they now are. If any change has ever taken place in their condition, and especially one so material as to destroy their independent national character, it is for those who assert it to show when, and how, this great change was effected. The history of the case is in this respect the law of the case. In what part of their history is it to be found? The European claim of discovery never asserted their subjection or extinguishment as its consequence. It asserted nothing in respect to them. It only fixed the limits of the pretensions of different European states or sovereigns between themselves; cach maintaining an exclusive right to what he had discovered, and within his discovery to deal with the natives according to his own will, without interference by the others. The conduct of one was no rule or law to his neighbour, except as it evidenced the common consent to abstain from interference. Each was the absolute master of his own conduct, and made the law for himself within his own limits. If he had strength enough to do so, he made the law for the native inhabitants
according to his own will and pleasure, with more deference to the suggestions of his own passions and appetites than to the dictates of justice or of mercy. In some portions of the discovered hemisphere they were hunted with blood hounds and exterminated. Whole races of men have long since disappeared from the face of the earth which they occupied. In others, their soil was forcibly seized by the invaders, and the native inhabitants became the slaves of their conquerors. Where these things happened, nations, of course, ceased to exist. Such was, then, the stern policy of the discoverer. But that is not our
He would not enter now into a discussion of the abstract question of right as it stood between the European discoverers and the native inhabitants, nor attempt to set up here, on behalf of the latter, rights which (however they might have stood upon original grounds) were now to be no otherwise considered in a judicial tribunal, than as they had been settled by a long course of time and practice, and by judicial decisions, including a decision of this court, to which he should hereafter refer. He was satisfied to take the matter as he found it; to disturb nothing that was past or settled, but to inquire simply into the fact, as it was when the constitution was made, and as it still is.
With this view he proceeded to state, that the claim of Great Britain never asserted the incorporation or subjection of the native inhabitants within her discovery, nor the extinguishment of their national existence and character. It was always a limited claim, and left to them all beyond its limits. See Johnson vs. M'Intosh, 8 Wheat. 543. With the exception of this limited claim, and what has since been yielded by treaty, the Cherokee nation of Indians is the same nation now, that it was when the soil of their country was first pressed by the foot of an European. They occupy this moment a portion of the very territory