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[The Cherokee Nation vs. The State of Georgia.]

reference to the character of his cestui que

trusts.

4 Cranch,

306, 308. 5 Cranch, 91, 303. 8 Wheat. 642. But in equity he can file his bill by and on behalf of himself and the residue of the Cherokee nation, and duly authorised for that purpose as their head and representative, and be entitled to obtain any process that the merits of the case in the bill should warrant. It appears to me that no difficulty could arise in consequence of his appearing to act for himself and on behalf of the residue of the tribe, under due authorization. The character of a court of equity, and the free and liberal nature of its pleadings would not suffer any technical scruple to be interposed.

Can any individual of the Cherokee nation, personally affected in his rights by the operation and execution of the act of Georgia, sue out such process, or maintain a suit for a personal injury produced in the execution of the act of Geor gia; in the circuit court of the United States for the district of Georgia?

This question has been essentially answered by the answer to the preceding question. The Cherokee Indians are aliens, and can sue in the federal courts the persons acting in execution of the law of Georgia for an injury that is personal. I see no reason why such a suit should not be maintained at law for a trespass or tort, or by bill in equity, in case the cause of action be of an equitable nature; though I cannot suppose that such a cause of action is very likely to occur to an individual Indian in his individual capacity. The injury that an individual would suffer would probably be of a tortious nature. The violation or destruction of the civil or political privileges of the tribe would be an affair of the tribe, and not of a separate individual. The injury that he is to receive, separately considered, would probably be such as affected his personal liberty or property; and I cannot well answer so general a question in respect to an equitable preventive remedy by process of injunction, without having a special case stated.

There must in general be a strong and peculiar case of trespass, going to the destruction of the estate, or where the mischief would be remediless and not susceptible of perfect pecuniary compensation; to entitle a party to the interference of a court of equity by injunction. This is the general doctrine. See the authorities referred to in Jerome vs. Ross, 7 Johnson's

[The Cherokee Nation vs. The State of Georgia.]

Ch. Rep. 315. But I will not say there may not be cases of mere trespass, where chancery will interpose by injunction, though the party can have redress in damages. The special preventive remedy by injunction depends greatly upon the application of sound undefined discretion to the particular circumstances of the case.

Has the supreme court appellate jurisdiction under the twenty-fifth section of the judiciary act of congress, in case of a decision in the highest court of law or equity in Georgia, under the said act, in favour of its validity, or against the constitution, treaties and laws of the United States?

I cannot hesitate to give an affirmative answer to this question. If, in rendering a final judgment or decree in any suit. in the highest court of law or equity of a state, the validity. of a treaty is drawn in question, and the determination is against its validity; or the construction of a treaty is drawn in question, and the decision is against the right, title or privilege set up or claimed under it; or, if the validity of a • statute of the United States, or authority exercised under it, be drawn in question, and the decision be against that validity; or, if the validity of any statute or other state authority be drawn in question, on the ground of its being repugnant to the constitution, treaties, or laws of the United States, and the decision be in favour of its validity; or if the construction of any clause of the constitution of the United States, or of a treaty or statute, be drawn in question, and the decision be against the title, right, or privilege claimed under the same: in all these cases the supreme court of the United States has appellate jurisdiction; and these cases reach and embrace every controversy that can arise between the Cherokees, and the state of Georgia or its officers, under the execution of the act of Georgia.

New York, 23d October 1830.

JAMES KENT.

APPENDIX, No. II.

TREATIES BETWEEN THE UNITED STATES AND THE CHEROKEE NATIONS OF INDIANS.

TREATY OF 28 NOVEMBER 1785.

Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, Andrew Pickens, Joseph Martin, and Lachlan 'M'Intosh, Commissioners Plenipotentiary of the United States of America, of the one part, and the head men and warriors of all the Cherokees, of the other.

The commissioners plenipotentiary of the United States, in congress assembled, give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions:

Art. 1. The head men and warriors of all the Cherokees shall restore all the prisoners, citizens of the United States, or subjects of their allies, to their entire liberty: they shall also restore all the negroes, and all other property taken during the late war from the citizens, to such person, and at such time and place, as the commissioners shall appoint.

Art. 2. The commissioners of the United States, in congress assembled, shall restore all the prisoners taken from the Indians during the late war, to the head men and warriors of the Cherokees, as early as is practicable.

Art. 3. The said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever.

Art. 4. The boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, within the limits of the United States of America, is and shall be the following, viz. Beginning at the mouth of Duck river, on the Tennessee; thence running north-east to the ridge dividing the waters running into Cumberland from those running into the Tennessee; thence eastwardly along the said ridge to a north-east line to be run, which shall strike the river Cumberland forty miles above Nashville; thence along the said line to the river; thence up the said river to the ford where the Kentucky road crosses the river; thence to Campbell's line, near Cumberland Gap; thence to the mouth of Claud's creek on Holston; thence to the Chimney-top mountain; thence to Camp creek, near the mouth of Big Limestone, on Nolichuckey; thence a southerly course, six miles to a mountain; thence south to the North Carolina line; thence to the South Carolina Indian boundary, and along the same south-west over the top of the Oconee mountain till it shall strike Tu

[The Cherokee Nation vs. The State of Georgia.]

galo river; thence a direct line to the top of the Currahee mountain; thence to the head of the south fork of Oconee river.

Art. 5. If any citizen of the United States, or other person, not being an Indian, shall attempt to settle on any of the lands westward or southward of the said boundary, which are hereby allotted to the Indians for their hunting grounds, or having already settled and will not remove from the same within six months after the ratification of this treaty, such person shall forfeit the protection of the United States, and the Indians may punish him or not as they please: provided nevertheless, that this article shall not extend to the people settled between the fork of French Broad and Holston rivers, whose particular situation shall be transmitted to the United States, in congress assembled, for their decision thereon, which the Indians agree to abide by.

Art. 6. If any Indian or Indians, or person residing among them, or who shall take refuge in their nation, shall commit a robbery or murder, or other capital crime, on any citizen of the United States, or person under their protection, the nation or the tribe to which such offender or offenders may belong, shall be bound to deliver him or them up to be punished according to the ordinances of the United States: provided that the punishment shall not be greater than if the robbery, or murder, or other capital crime, had been committed by a citizen on a citizen.

Art. 7. If any citizen of the United States, or person under their protection, shall commit a robbery or murder, or other capital crime, on any Indian, such offender or offenders shall be punished in the same manner as if the murder or robbery, or other capital crime, had been committed on a citizen of the United States; and the punishment shall be in presence of some of the Cherokees, if any shall attend at the time and place, and that they may have an opportunity so to do, due notice of the time of such intended punishment shall be sent to some one of the tribes.

Art. 8. It is understood that the punishment of the innocent, under the idea of retaliation, is unjust, and shall not be practised on either side, except where there is a manifest violation of this treaty; and then it shall be preceded first by a demand of justice; and if refused, then by a declaration of hostilities.

Art. 9. For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper.

Art. 10. Until the pleasure of congress be known, respecting the ninth article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees to trade with them, and they shall be protected in their persons and property, and kindly treated.

Art. 11. The said Indians shall give notice to the citizens of the United States of any designs which they may know or suspect to be formed in any neighbouring tribe, or by any person whomsoever, against the peace, trade, or interest of the United States.

Art. 12. That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to congress.

Art. 13. The hatchet shall be for ever buried, and the peace given by the United States, and friendship re-established between the said states on the one part, and all the Cherokees on the other, shall be universal; and the contracting

[The Cherokee Nation vs. The State of Georgia.]

parties shall use their utmost endeavours to maintain the peace given as aforesaid, and friendship re-established.

In witness of all and every thing herein determined, between the United States of America and all the Cherokees, we, their underwritten commissioners, by virtue of our full powers, have signed this definitive treaty, and have caused our seals to be hereunto affixed.

Done at Hopewell, on the Keowee, this twenty-eighth day of November, in the year of our Lord one thousand seven hundred and eighty-five..

Signed and sealed by the commissioners of the United States, and thirty-seven chiefs and warriors of the Cherokee nation.

TREATY OF 2 JULY 1791.

A treaty of peace and friendship, made and concluded between the president of the United States of America, on the part and behalf of the said states, and the undersigned chiefs and warriors of the Cherokee nation of Indians› on the part and behalf of the said nation.

The parties being desirous of establishing a permanent peace and friendship between the United States and the said Cherokee nation, and the citizens and members thereof, and to remove the causes of war by ascertaining their limits and making other necessary, just, and friendly arrangements: the president of the United States, by William Blount, governor of the territory of the United States of America south of the river Ohio, and superintendent of Indian affairs for the southern district, who is vested with full powers for these purposes, by and with the advice and consent of the senate of the United States: and the Cherokee nation, by the undersigned chiefs and warriors representing the said nation, have agreed to the following articles, namely:

Art. 1. There shall be perpetual peace and friendship between all the citizens of the United States of America, and all the individuals composing the whole Cherokee nation of Indians.

Art. 2. The undersigned chiefs and warriors, for themselves and all parts of the Cherokee nation, do acknowledge themselves and the said Cherokee nation to be under the protection of the United States of America, and of no other sovereign whatsoever; and they also stipulate that the said Cherokee nation will not hold any treaty with any foreign power, individual state, or with individuals of any

state.

Art. 3. The Cherokee nation shall deliver to the governor of the territory of the United States of America south of the river Ohio, on or before the first day of April next, at this place, all persons who are now prisoners, captured by them from any part of the United States: and the United States shall, on or before the same day, at the same place, restore to the Cherokees all the prisoners now in captivity, which the citizens of the United States have captured from them.

Art. 4. The boundary between the citizens of the United States and the Cherokee nation, is and shall be as follows: beginning at the top of the Currahee mountain, where the Creek line passes it; thence a direct line to Tugelo river; thence north-east to the Occunna mountain, and over the same along the South Carolina Indian boundary, to the North Carolina boundary; thence north to a point from which a line is to be extended to the river Clinch, that shall pass the

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