These weekly responses are should be 1000 words each and provide a summary to the weekly readings. The response should include three parts: (1) a summary of the readings, (2) a connection to other course topics, and (3) a personal response to the reading.

Documents of United States Indian Policy (Third Edition)
Francis Paul Prucha

Published by University of Nebraska Press

Prucha, Paul.
Documents of United States Indian Policy (Third Edition).
Lincoln: University of Nebraska Press, 2000.
Project MUSE., https://muse.jhu.edu/.

For additional information about this book

Access provided at 25 Aug 2019 22:39 GMT from University of California @ Berkeley

https://muse.jhu.edu/book/11623

https://muse.jhu.edu

https://muse.jhu.edu/book/11623

70

for the execution of the duties. And where
any of the tribes are, in the opinion of the
Secretary of War, competent to direct the
employment of their blacksmiths, mechanics,
teachers, farmers, or other persons engaged
for them, the direction of such persons may
be given to the proper authority of the tribe.

Sec. 10. [Compensation, travel allow-
ances, etc.]

Sec. 11. And be it further enacted, That
the payment of all annuities or other sums
stipulated by treaty to be made to any Indian
tribe, shall be made to the chiefs of such
tribe, or to such person as said tribe shall
appoint; or if any tribe shall appropriate their
annuities to the purpose of education, or to
any other specific use, then to such person or
persons as such tribe shall designated.

Sec. 12. And be it further enacted, That
it shall be lawful for the President of the
United States, at the request of any Indian
tribe to which any annuity shall be payable in
money, to cause the same to be paid in goods,
purchased as provided in the next section of
this act.

Sec. 13. And be it further enacted, That all
merchandise required by any Indian treaty
for the Indians, payable after making of such
treaty, shall be purchased under the direction
of the Secretary of War, upon proposals to be
received, to be based on notices previously
to be given; and all merchandise required
at the making of any Indian treaty shall be
purchased under the order of the commis-
sioners, by such person as they shall appoint,
or by such person as shall be designated by
the President for that purpose. And all other
purchases on account of the Indians, and all
payments to them of money or goods, shall
be made by such person as the President
shall designate for that purpose. And the su-
perintendent, agent, or sub-agent, together
with such military officer as the President
may direct, shall be present, and certify to
the delivery of all goods and money required
to be paid or delivered to the Indians. And
the duties required by any section of this

act, of military officers, shall be performed
without any other compensation than their
actual travelling expenses. . . .

Sec. 14. And be it further enacted, That no
person employed in the Indian department
shall have any interest or concern in any
trade with the Indians, except for, and on
account of, the United States; and any person
offending herein, shall forfeit the sum of
five thousand dollars, and upon satisfactory
information of such offence being laid before
the President of the United States, it shall
become his duty to remove such person from
the office or situation he may hold.

Sec. 15. And be it further enacted, That
the President shall be, and he is hereby, au-
thorized to cause any of the friendly Indi-
ans west of the Mississippi river, and north
of the boundary of the Western territory,
and the region upon Lake Superior and the
head of the Mississippi, to be furnished with
useful domestic animals and implements of
husbandry, and with goods, as he shall think
proper: Provided, That the whole amount of
such presents shall not exceed the sum of five
thousand dollars.

Sec. 16. And be it further enacted, That the
President be, and he is hereby, authorized to
cause such rations as he shall judge proper,
andascanbesparedfromthearmyprovisions
without injury to the service, to be issued,
under such regulations as he shall think fit to
establish, to Indians who may visit the mili-
tary posts or agencies of the United States on
the frontiers, or in their respective nations,
and a special account of these issues shall be
kept and rendered.

Sec. 17. And be it further enacted, That
the President of the United States shall be,
and he is hereby, authorized to prescribe such
rules and regulations as he may think fit, for
carrying into effect the various provisions of
this act, and of any other act relating to Indian
affairs, and for the settlement of the accounts
of the Indian department. . . .

[U.S. Statutes at Large, 4:735–38.]

50. PresidentJacksononIndianRemoval
December7,1835

President Andrew Jackson held firm in favor of Indian removal. In his annual
message to Congress in December 1835 he renewed his arguments for the removal
policy.

71

. . . . The plan of removing the aborigi-
nal people who yet remain within the settled
portions of the United States to the country
west of the Mississippi River approaches its
consummation. It was adopted on the most
mature consideration of the condition of this
race, and ought to be persisted in till the
object is accomplished, and prosecuted with
as much vigor as a just regard to their cir-
cumstances will permit, and as fast as their
consent can be obtained. All preceding exper-
iments for the improvement of the Indians
have failed. It seems now to be an established
fact that they can not live in contact with
a civilized community and prosper. Ages of
fruitless endeavors have at length brought
us to a knowledge of this principle of inter-
communication with them. The past we can
not recall, but the future we can provide for.
Independently of the treaty stipulations into
which we have entered with the various tribes
for the usufructuary rights they have ceded to
us, no one can doubt the moral duty of the
Government of the United States to protect
and if possible to preserve and perpetuate
the scattered remnants of this race which are
left within our borders. In the discharge of
this duty an extensive region in the West has
been assigned for their permanent residence.
It has been divided into districts and allotted
among them. Many have already removed
and others are preparing to go, and with the
exception of two small bands living in Ohio
and Indiana, not exceeding 1,500 persons,
and of the Cherokees, all the tribes on the
east side of the Mississippi, and extending
from Lake Michigan to Florida, have entered
into engagements which will lead to their
transplantation.

The plan for their removal and reestab-
lishment is founded upon the knowledge we
have gained of their character and habits,
and has been dictated by a spirit of enlarged
liberality. A territory exceeding in extent that
relinquished has been granted to each tribe.
Of its climate, fertility, and capacity to sup-
port an Indian population the representa-
tions are highly favorable. To these districts
the Indians are removed at the expense of the
United States, and with certain supplies of
clothing, arms, ammunition, and other in-
dispensable articles; they are also furnished
gratuitously with provisions for the period of
a year after their arrival at their new homes.

In that time, from the nature of the country
and of the products raised by them, they can
subsist themselves by agricultural labor, if
they choose to resort to that mode of life;
if they do not they are upon the skirts of
the great prairies, where countless herds of
buffalo roam, and a short time suffices to
adapt their own habits to the changes which
a change of the animals destined for their
food may require. Ample arrangements have
also been made for the support of schools; in
some instances council houses and churches
are to be erected, dwellings constructed for
the chiefs, and mills for common use. Funds
have been set apart for the maintenance of
the poor; the most necessary mechanical arts
have been introduced, and blacksmiths, gun-
smiths, wheelwrights, millwrights, etc., are
supported among them. Steel and iron, and
sometimes salt, are purchased for them, and
plows and other farming utensils, domestic
animals, looms, spinning wheels, cards, etc.,
are presented to them. And besides these
beneficial arrangements, annuities are in all
cases paid, amounting in some instances to
morethan$30foreachindividualofthetribe,
and in all cases sufficiently great, if justly
divided and prudently expended, to enable
them, in addition to their own exertions, to
live comfortably. And as a stimulus for exer-
tion, it is now provided by law that “in all
cases of the appointment of interpreters or
other persons employed for the benefit of the
Indians a preference shall be given to persons
of Indian descent, if such can be found who
are properly qualified for the discharge of
the duties.”

Such are the arrangements for the physi-
cal comfort and for the moral improvement
of the Indians. The necessary measures for
their political advancement and for their sep-
aration from our citizens have not been ne-
glected. The pledge of the United States has
been given by Congress that the country des-
tined for the residence of this people shall be
forever “secured and guaranteed to them.”
A country west of Missouri and Arkansas
has been assigned to them, into which the
white settlements are not to be pushed. No
political communities can be formed in that
extensive region, except those which are es-
tablished by the Indians themselves or by the
United States for them and with their con-
currence. A barrier has thus been raised for

72

their protection against the encroachment of
ourcitizens,andguardingtheIndiansasfaras
possible from those evils which have brought
them to their present condition. Summary
authority has been given by law to destroy all
ardent spirits found in their country, without
waiting the doubtful result and slow process
of a legal seizure. I consider the absolute
and unconditional interdiction of this article
among these people as the first and great step
in their melioration. Halfway measures will
answer no purpose. These can not success-
fully contend against the cupidity of the seller
and the overpowering appetite of the buyer.
And the destructive effects of the traffic are
marked in every page of the history of our
Indian intercourse.

Some general legislation seems necessary
for the regulation of the relations which will
exist in this new state of things between the

Government and people of the United States
and these transplanted Indian tribes, and for
the establishment among the latter, and with
their own consent, of some principles of in-
tercommunication which their juxtaposition
will call for; that moral may be substituted
for physical force, the authority of a few and
simple laws for the tomahawk, and that an
end may be put to those bloody wars whose
prosecution seems to have made part of their
social system.

After the further details of this arrange-
ment are completed, with a very general su-
pervision over them, they ought to be left
to the progress of events. These, I indulge
the hope, will secure their prosperity and im-
provement, and a large portion of the moral
debt we owe them will then be paid. . . .

[James D. Richardson, comp., Messages
and Papers of the Presidents, 3:171–73.]

51. IndianCommissionerCrawfordonIndianPolicy
ExtractfromtheAnnualReportoftheCommissionerofIndianAffairs

November25,1838
Commissioner of Indian Affairs T. Hartley Crawford had strong views on Indian
policy, which he expressed in his annual reports. In 1838 he wrote, among other
things, about manual labor schools, allotment of Indian lands to individual Indians,
and confederation of the Indians in the West.

. . . . The principal lever by which the In-
dians are to be lifted out of the mire of folly
and vice in which they are sunk is educa-
tion. The learning of the already civilized
and cultivated man is not what they want
now. It could not be advantageously ingrafted
on so rude a stock. In the present state of
theirsocialexistence,alltheycouldbetaught,
or would learn, is to read and write, with a
very limited knowledge of figures. There are
exceptions, but in the general the remark is
true, and perhaps more is not desirable or
would be useful. As they advance, a more
liberal culture of their minds may be effected,
if happily they should yield to the influences
that, if not roughly thrust back, will certainly
follow in the wake of properly directed efforts
to improve their understanding. To attempt
too much at once is to insure failure. You
must lay the foundations broadly and deeply,
but gradually, if you would succeed. To teach
a savage man to read, while he continues a

savage in all else, is to throw seed on a rock.
In this particular there has been a general
error. If you would win an Indian from the
waywardness and idleness and vice of his life,
you must improve his morals, as well as his
mind, and that not merely by precept, but
by teaching him how to farm, how to work
in the mechanic arts, and how to labor prof-
itably; so that, by enabling him to find his
comfort in changed pursuits, he will fall into
those habits which are in keeping with the
useful application of such education as may
be given him. Thus too, only, it is conceived,
are men to be christianized; the beginning
is some education, social and moral lives,
the end may be the brightest hope: but this
allusion ought not, perhaps, to have been
made; upon it I certainly will not enlarge;
it is in better hands. Manual-labor schools
are what the Indian condition calls for. The
Missionary Society of the Methodist Episco-
pal Church has laid before the department

Documents of United States Indian Policy (Third Edition)
Francis Paul Prucha

Published by University of Nebraska Press

Prucha, Paul.
Documents of United States Indian Policy (Third Edition).
Lincoln: University of Nebraska Press, 2000.
Project MUSE., https://muse.jhu.edu/.

For additional information about this book

Access provided at 25 Aug 2019 22:39 GMT from University of California @ Berkeley

https://muse.jhu.edu/book/11623

https://muse.jhu.edu

https://muse.jhu.edu/book/11623

60

45. Worcesterv.Georgia
1832

Samuel A. Worcester, a missionary among the Cherokees, was imprisoned because
he refused to obey a Georgia law forbidding whites to reside in the Cherokee country
withouttakinganoathofallegiancetothestateandobtainingapermit.TheSupreme
Court decided in favor of Worcester, maintaining that the Cherokees were a nation
free from the jurisdiction of the state.

. . . . Mr. Chief Justice Marshall deliv-
ered the opinion of the Court.

This cause, in every point of view in which
it can be placed, is of the deepest interest.

The defendant is a state, a member of
the Union, which has exercised the powers
of government over a people who deny its
jurisdiction, and are under the protection of
the United States.

The plaintiff is a citizen of the state of
Vermont, condemned to hard labour for four
years in the penitentiary of Georgia; under
colour of an act which he alleges to be
repugnant to the Constitution, laws, and
treaties of the United States.

The legislative power of a state, the con-
trollingpoweroftheConstitutionandlawsof
the United States, the rights, if they have any,
the political existence of a once numerous
and powerful people, the personal liberty of
a citizen, are all involved in the subject now
to be considered. . . .

The Indian nations had always been
considered as distinct, independent political
communities, retaining their original natu-
ral rights, as the undisputed possessors of
the soil, from time immemorial, with the
single exception of that imposed by irre-
sistible power, which excluded them from
intercourse with any other European poten-
tate than the first discoverer of the coast of
the particular region claimed; and this was a
restriction which those European potentates
imposed on themselves, as well as on the
Indians. The very term “nation,” so generally
applied to them, means “a people distinct
from others.” The Constitution, by declar-
ing treaties already made, as well as those
to be made, to be the supreme law of the
land, has adopted and sanctioned the pre-
vious treaties with the Indian nations, and
consequently admits their rank among those
powers who are capable of making treaties.
The words “treaty” and “nation” are words

of our own language, selected in our diplo-
matic and legislative proceedings, by our-
selves, having each a definite and well un-
derstood meaning. We have applied them to
Indians, as we have applied them to the other
nations of the earth. They are applied to all
in the same sense.

Georgia, herself, has furnished conclusive
evidence that her former opinions on this
subject concurred with those entertained by
her sister states, and by the government of the
United States. Various acts of her legislature
have been cited in the argument, including
the contract of cession made in the year
1802, all tending to prove her acquiescence
in the universal conviction that the Indian
nations possessed a full right to the lands
they occupied, until that right should be ex-
tinguished by the United States, with their
consent: that their territory was separated
from that of any state within whose char-
tered limits they might reside, by a bound-
ary line, established by treaties: that, within
their boundary, they possessed rights with
which no state could interfere; and that
the whole power of regulating the inter-
course with them was vested in the United
States. A review of these acts, on the part
of Georgia, would occupy too much time,
and is the less necessary, because they have
been accurately detailed in the argument
at the bar. Her new series of laws, mani-
festing her abandonment of these opinions,
appears to have commenced in December,
1828.

In opposition to this original right, pos-
sessed by the undisputed occupants of every
country; to this recognition of that right,
which is evidenced by our history, in every
change through which we have passed; is
placed the charters granted by the monarch
of a distant and distinct region, parcelling
out a territory in possession of others whom
he could not remove and did not attempt to

61

remove, and the cession made of his claims
by the treaty of peace.

The actual state of things at the time, and
all history since, explain these charters; and
the King of Great Britain, at the treaty of
peace, could cede only what belonged to his
crown. These newly asserted titles can derive
no aid from the articles so often repeated in
Indian treaties; extending to them, first, the
protection of Great Britain, and afterwards
that of the United States. These articles are
associated with others, recognising their ti-
tle to self-government. The very fact of re-
peated treaties with them recognises it; and
the settled doctrine of the law of nations is,
that a weaker power does not surrender its
independence—its right to self-government,
by associating with a stronger, and taking its
protection. A weak state, in order to provide
for its safety, may place itself under the pro-
tection of one more powerful, without strip-
ping itself of the right of government, and
ceasing to be a state. Examples of this kind
are not wanting in Europe. “Tributary and
feudatory states,” says Vattel, “do not thereby
cease to be sovereign and independent states,
so long as self-government and sovereign and
independent authority are left in the adminis-
tration of the state.” At the present day, more
than one state may be considered as holding
its right of self-government under the guar-
antee and protection of one or more allies.

The Cherokee nation, then, is a distinct
community, occupying its own territory, with
boundariesaccuratelydescribed,inwhichthe
laws of Georgia can have no force, and which
the citizens of Georgia have no right to enter,
but with the assent of the Cherokees them-
selves, or in conformity with treaties, and
with the acts of Congress. The whole inter-
course between the United States and this na-
tion, is, by our Constitution and laws, vested
in the government of the United States.

The act of the state of Georgia, under
which the plaintiff in error was prosecuted,
is consequently void, and the judgment a
nullity. Can this Court revise and reverse it?

If the objection to the system of legis-
lation, lately adopted by the legislature of
Georgia, in relation to the Cherokee nation,
was confined to its extra-territorial opera-
tion, the objection, though complete, so far as
respected mere right, would give this Court
no power over the subject. But it goes much

further. If the review which has been taken be
correct, and we think it is, the acts of Georgia
are repugnant to the Constitution, laws, and
treaties of the United States.

They interfere forcibly with the rela-
tions established between the United States
and the Cherokee nation, the regulation of
which, according to the settled principles of
our Constitution, are committed exclusively
to the government of the Union.

They are in direct hostility with treaties,
repeated in a succession of years, which mark
outtheboundarythatseparatestheCherokee
country from Georgia; guaranty to them all
the land within their boundary; solemnly
pledge the faith of the United States to
restrain their citizens from trespassing on it;
and recognise the pre-existing power of the
nation to govern itself.

They are in equal hostility with the acts of
Congress for regulating this intercourse, and
giving effect to the treaties.

The forcible seizure and abduction of the
plaintiff in error, who was residing in the
nation with its permission, and by authority
of the President of the United States, is also a
violation of the acts which authorize the chief
magistrate to exercise this authority.

Will these powerful considerations avail
the plaintiff in error? We think they will. He
was seized, and forcibly carried away, while
under guardianship of treaties guarantying
the country in which he resided, and tak-
ing it under the protection of the United
States. He was seized while performing, un-
der the sanction of the chief magistrate of the
Union, those duties which the humane policy
adopted by Congress had recommended. He
was apprehended, tried, and condemned, un-
der colour of a law which has been shown to
be repugnant to the Constitution, laws, and
treaties of the United States. Had a judg-
ment, liable to the same objections, been
rendered for property, none would question
the jurisdiction of this Court. It cannot be
less clear when the judgment affects personal
liberty, and inflicts disgraceful punishment, if
punishment could disgrace when inflicted on
innocence. The plaintiff in error is not less
interested in the operation of this unconsti-
tutional law than if it affected his property.
He is not less entitled to the protection of
the Constitution, laws, and treaties of his
country. . . .

62

It is the opinion of this Court that the
judgment of the Superior Court for the
county of Gwinnett, in the state of Georgia,
condemning Samuel A. Worcester to hard
labour in the penitentiary of the state of
Georgia, for four years, was pronounced by

that Court under colour of a law which is
void, as being repugnant to the Constitu-
tion, treaties, and laws of the United States,
and ought, therefore, to be reversed and an-
nulled. . . .

[6 Peters, 534–36, 558–63.]

46. AuthorizationofaCommissionerofIndianAffairs
July9,1832

In1832Congressat lastprovided foranofficial specifically chargedwith thedirection
and management of Indian affairs. The commissioner succeeded the head of the
Indian Office that had been established by the secretary of war in 1824. The same
act absolutely prohibited the introduction of ardent spirits into the Indian country.

An Act to provide for the appointment of a
commissioner of Indian Affairs, and for other
purposes.

Be it enacted . . . , That the President shall
appoint, by and with the advice and consent
of the Senate, a commissioner of Indian
affairs, who shall, under the direction of
the Secretary of War, and agreeably to such
regulations as the President may, from time
to time, prescribe, have the direction and
management of all Indian affairs, and of all
matters arising out of Indian relations, and
shall receive a salary of three thousand dollars
per annum.

Sec. 2. And be it further enacted, That the
Secretary of War shall arrange or appoint to
the said office the number of clerks necessary
therefor, so as not to increase the number
now employed; and such sum as is necessary
to pay the salary of said commissioner for
the year one thousand eight hundred and
thirty-two, shall be, and the same hereby

is, appropriated out of any money in the
treasury.

Sec. 3. And be it further enacted, That
all accounts and vouchers for claims and
disbursements connected with Indian affairs,
shall be transmitted to the said commissioner
for administrative examination, and by him
passed to the proper accounting officer of
the Treasury Department for settlement; and
all letters and packages to and from the said
commissioner, touching the business of his
office, shall be free of postage.

Sec. 4. And be it further enacted, That no
ardent spirits shall be hereafter introduced,
under any pretence, into the Indian country.

Sec. 5. And be it further enacted, That the
Secretary of War shall, under the direction
of the President, cause to be discontinued
the services of such agents, sub-agents, in-
terpreters, and mechanics, as may, from time
to time, become unnecessary, in consequence
of the emigration of the Indians, or other
causes.

[U.S. Statutes at Large, 4:564.]

47. IndianCommissionerHerringontheIndianRace
ExtractfromtheAnnualReportoftheCommissionerofIndianAffairs.

November22,1832
The first man to hold the office of commissioner of Indian affairs authorized by
Congress in 1832 was Elbert Herring. In his first report to the secretary of war he
urged that the Indians be brought within the social system of the whites, especially in
regard to private ownership of property.

. . . Some of the Indian tribes have pro-
ceeded to hostile acts, in the course of the
year past, against each other, and conflicts

have ensued, in which blood has been spilt
in defiance of the obligation imposed by
the guarantee of the United States, for the

Documents of United States Indian Policy (Third Edition)
Francis Paul Prucha

Published by University of Nebraska Press

Prucha, Paul.
Documents of United States Indian Policy (Third Edition).
Lincoln: University of Nebraska Press, 2000.
Project MUSE., https://muse.jhu.edu/.

For additional information about this book

Access provided at 25 Aug 2019 22:38 GMT from University of California @ Berkeley

https://muse.jhu.edu/book/11623

https://muse.jhu.edu

https://muse.jhu.edu/book/11623

57

the consent of the President of the U.S. but
should any prefer it, or omit to take a reser-
vation for the quantity he may be entitled
to, the U.S. will on his removing pay fifty
cents an acre, after reaching their new homes,
provided that before the first of January next
they shall adduce to the Agent, or some other
authorized person to be appointed, proof of
his claim and the quantity of it. Sixth; like-
wise children of the Choctaw Nation resid-
ing in the Nation, who have neither father
nor mother a list of which, with satisfactory
proof of Parentage and orphanage being filed
with Agent in six months to be forwarded to
the War Department, shall be entitled to a
quarter section of Land, to be located under
the direction of the President, and with his
consent the same may be sold and the pro-
ceeds applied to some beneficial purpose for
the benefit of said orphans.

Article XX. The U.S. agree and stipulate
as follows, that for the benefit and advantage
of the Choctaw people, and to improve their
condition, there shall be educated under the
direction of the President and at the expense
of the U.S. forty Choctaw youths for twenty
years. This number shall be kept at school,
and as they finish their education others, to
supply their places shall be received for the
period stated. The U.S. agree also to erect
a Council House for the Nation at some
convenient central point, after their people
shall be settled; and a House for each Chief,
also a Church for each of the three Districts,
to be used also as school houses, until the
Nation may conclude to build others; and for
these purposes ten thousand dollars shall be
appropriated; also fifty thousand dollars (viz.)
twenty-five hundred dollars annually shall be

given for the support of three teachers of
schools for twenty years. Likewise there shall
befurnishedtotheNation,threeBlacksmiths
one for each district for sixteen years, and
a qualified Mill Wright for five years; Also
thereshallbefurnishedthefollowingarticles,
twenty-one hundred blankets, to each war-
rior who emigrates a rifle, moulds, wipers and
ammunition. One thousand axes, ploughs,
hoes, wheels and cards each; and four hun-
dred looms. There shall also be furnished,
one ton of iron and two hundred weight of
steel annually to each District for sixteen
years.

Article XXI. A few Choctaw Warriors
yet survive who marched and fought in the
army with General Wayne, the whole num-
ber stated not to exceed twenty.

These it is agreed shall hereafter, while
they live, receive twenty-five dollars a year;
a list of them to be early as practicable, and
within six months, made out, and presented
to the Agent, to be forwarded to the War
Department.

Article XXII. The Chiefs of the Choc-
taws have suggested that their people are in a
state of rapid advancement in education and
refinement, and have expressed a solicitude
that they might have the privilege of a Del-
egate on the floor of the House of Repre-
sentatives extended to them. The Commis-
sioners do not feel that they can under a
treaty stipulation accede to the request, but
at their desire, present it in the Treaty, that
Congress may consider of, and decide the
application. . . .

[Charles J. Kappler, ed., Indian Affairs:
Laws and Treaties, 2:310–15.]

44. CherokeeNationv.Georgia
1831

When Georgia extended her laws over the Cherokee lands, the Indians brought suit
against the state.TheSupremeCourtrefused toaccept jurisdictionbecause itdeclared
that the Cherokee Nation was not a “foreign nation” in the sense intended by the
Constitution. John Marshall, who delivered the opinion, described the Indian tribes
as “domestic dependent nations.”

. . . . Mr. Chief Justice Marshall deliv-
ered 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

58

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
themcanscarcelybeimagined.Apeopleonce
numerous, powerful, and truly independent,
found by our ancestors in the quiet and un-
controlled possession of an ample domain,
gradually sinking beneath our superior pol-
icy, 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 de-
scribes the extent of the judicial power. The
second section closes an enumeration of the
casestowhichitisextended,with“controver-
sies” “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 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 main-
tained the affirmative of this proposition with
great earnestness and ability. So much of the
argument as was intended to prove the char-
acter of the Cherokees as a state, as a distinct
political society, separated from others, capa-
ble 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 numer-
ous treaties made with them by the United
States recognise 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 recognise the Cherokee
nation as a state, and the Courts are bound
by those acts.

A question of much more difficulty re-
mains. 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 the
relation of the Indians to the United States is
marked by peculiar and cardinal distinctions
which exist no where else.

The Indian territory is admitted to com-
pose a part of the United States. In all our
maps, geographical treaties, histories, and
laws, it is so considered. In all our intercourse
with foreign nations, in our commercial reg-
ulations, in any attempt at intercourse be-
tween Indians and foreign nations, they are
considered as within the jurisdictional lim-
its 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 exclu-
sive 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 them-
selves, in which they admit their dependence.

Though the Indians are acknowledged
to have an unquestionable, and, heretofore,

59

unquestioned right to the lands they occupy,
until that right shall be extinguished by a vol-
untary 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 do-
mesticdependentnations.Theyoccupyater-
ritory 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 pupil-
age. Their relation to the United States re-
sembles that of a ward of his guardian.

They look to our government for protec-
tion; rely upon its kindness and its power;
appeal to it for relief to their wants; and ad-
dress 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 do-
minion of the United States, that any attempt
to acquire their lands, or to form a political
connexion with them, would 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 consti-
tution 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 constitu-
tion of the United States, and might fur-
nish 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 fur-
nished 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 contradis-
tinguished by a name appropriate to them-
selves, from foreign nations, as from the sev-
eral 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 dis-
tinguishing 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 lan-
guage to authorize the assumption. . . .

Had the Indian tribes been foreign na-
tions, in the view of the convention, this ex-
clusive power of regulating intercourse with
them might have been, and most probably
would have been, specifically given in lan-
guage indicating that idea, not in language
contradistinguishing them from foreign na-
tions. Congress might have been empowered
“to regulate commerce with foreign nations,
including the Indian tribes, and among the
several States.” . . .

The Court has bestowed its best attention
on this question, and, after mature delibera-
tion, 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. . . .

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.

Themotionforaninjunctionisdenied. . . .
[5 Peters, 15–20.]