[The Cherokee Nation vs. The State of Georgia.] state, within the boundary from time to time arranged between them and the United States, accordingly as that boundary was changed by successive cessions of their land to the United States, and that within the boundary as finally adjusted by the treaty of 1819 they are still sovereign and independent, with the exclusive right of governing themselves by their own laws, usages and customs, and without any right of interference with such their self government, on the part of any one of the states composing the confederacy of the United States. These complainants pray leave to call the attention of this honourable court to a more particular inspection of these treaties, for the purpose of verifying the truth of the general principles thus deduced from them. The fact that the Cherokees are not citizens of the United States, nor of any one of those states, is admitted by the fact of treating with them as a separate and sovereign nation; and the provisions of those treaties are such as to place this tacit admission beyond the reach of controversy. Thus the treaty of Hopewell was a treaty of peace, made to put an end to a long and bloody war, which had existed between the parties to the treaty; and the first and second articles stipulate an exchange of prisoners, precisely in the style of two equal sovereigns, treating under such circumstances; for example, by the first article of the treaty of Hopewell, "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 liberty." The second article presents a corresponding stipulation by the United States; thus exhibiting all the Cherokees in striking contradistinction to the citizens of the United States and the subjects of their allies, and this feature of contradistinction, these complainants will here remark, runs through every provision of this, and of every subsequent treaty, so as to exclude the possibility of the supposition that the Cherokees were regarded as citizens of the United States, or any one of those states, or as owing, in any manner, allegiance to their laws. On the contrary, both the language of the treaties and their substantive provisions, have neither sense nor meaning, except upon the admission that the Cherokees were a separate, sovereign nation, with full capacity to treat as such, and to bind [The Cherokee Nation vs. The State of Georgia.] both themselves and the United States by the terms of these treaties. Again, the eighth article of the same treaty of Hopewell contains this stipulation: "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 when 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; the parties thus admitting themselves to be on an entire equality, in regard to that decisive test of sovereignty, the right of declaring war. Again, the sixth article of the same treaty contains a stipulation on the part of the Cherokees for the delivering up of any Indian or other person residing among them, or who shall take refuge in their nation; who shall have committed robbery or murder, or other capital crime on any citizen of the United States; a provision wholly idle if such refugees might be reached within the Indian nation of the Cherokees, by the laws of the United States or of any one of these states. By the fourth article of the same treaty, the boundary between the Cherokees and the citizens of the United States is designated; and the same article proceeds to stipulate, that if any citizen of the United States shall attempt to settle on any of the lands within that boundary, he shall forfeit the protection of the United States, and the Indians may punish him or not, as they please. Without detaining your honours with a farther specification of the provisions of that treaty, by a detailed reference to each and every article, as admitting their exclusive sovereignty, and their authority to give the law within their own territorial limits, these complainants refer again to the provisions at large, both of that and of all the other treaties above enumerated. These complainants show further to your honours, that the second of the treaties above enumerated, that of Holston, was made by and with the previous advice and consent of the senate of the United States; in support of which, they refer to the message of the president Washington to that body, in August 1790, and their answer thereto, as extracted from the journals of the senate of the United States; a copy of which was annexed and made part of the bill. This treaty of Holston, entered into by the United [The Cherokee Nation vs. The State of Georgia.] States, after the adoption of the present constitution of the United States, and under the double solemnity of a previous consultation with the senate, and their subsequent ratification of the treaty, contains the recognition of every feature of the separate sovereignty of the Cherokee nation, which is to be found in the treaty of Hopewell, and other additional ones of a character equally decisive; to all which these complainants pray the special reference of your honours. The eleventh article, particularly, contains a distinct admission, that the territory of the Cherokee nation is not within the jurisdiction of either of the states or territorial districts of the United States. And by the seventh article, "the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded." These complainants show farther unto your honours, that the United States of America, from their earliest intercourse with the Cherokee nation, have evinced an anxious desire to lead them to a greater degree of civilization, and to induce them to become herdsmen and cultivators, instead of remaining in their original hunter state. Of this fact the fourteenth article of the said treaty of Holston furnishes evidence, which will be found to be followed up in all the subsequent treaties before referred to, in all the messages of the president of the United States to congress touching the Indian tribes, and in all the correspondence of the executive department of the United States with the agents, from time to time, established under the authority of treaties with those nations. With the Cherokee nation those humane and generous efforts were so far successful, that many of them had already commenced agricultural pursuits, when in the year 1808 they sent a double deputation to the city of Washington; that, from the upper towns, to declare to the president of the United States their anxious desire to engage in the pursuits of agricultural and civilized life, in the country they then occupied, and to make known to him the impracticability of inducing the nation at large to do this, and to request the establishment of a division line between the upper and lower towns; and the deputies. from the lower towns to make known their desire to continue the hunter life, and also the scarcity of game where they then B [The Cherokee Nation vs. The State of Georgia.] lived, and under these circumstances, their wish to remove across the Mississippi river, on some vacant lands of the United States. To both these deputations, the president gave a favourable answer: declaring that those who chose to remain for the purpose of engaging in the pursuits of agricultural and civilized life, in the country they then occupied, might be assured of the patronage, aid, and good neighbourhood of the United States; and providing the means, also, of gratifying those who wished to remove to the west of the Mississippi, to continue the hunter state. In consequence of this arrangement, a part of the Cherokee nation did remove to the west of the Mississippi, while the far larger portion of them did remain to engage in the pursuits of agriculture and civilized life in the country they then occupied. On the 8th of July 1817, the before mentioned treaty at the Cherokee agency was made; the preamble of which recites the promises just stated as having been made by the president of the United States in 1808, 1809, and declares that that treaty is made for the purpose of carrying into full effect the before recited promises with good faith; and in full reliance on this good faith, a large cession of their lands was thereby made by the Cherokee nation. For the same purpose, and in final and complete execution of that purpose, the before mentioned treaty of the 27th of February 1819 was made at the city of Washington; reciting in the preamble thereto, that a greater part of the Cherokee nation had expressed an earnest desire to remain on this side of the Mississippi, and were desirous to commence those measures which they deem necessary to the civilization and preservation of their nation; to give effect to which object, without delay, that treaty was declared to be made, and another large cession of their lands was, thereby, made by them to the United States. By reference to the several treaties before enumerated, it will be seen by your honours, that among other proofs of the earnestness of the United States to promote civilization among your complainants, a fund is provided for the establishment of schools. And your complainants show farther unto your honours, that, in full reliance on the sincerity and good faith of the United States, and grateful for the humanity so often and so zealously expressed in their behalf, the Cherokee nation [The Cherokee Nation vs. The State of Georgia.] have made great progress in civilization and in agriculture. They have established a constitution and form of government; the leading features of which they have borrowed from that of the United States; dividing their government into three separate departments, legislative, executive and judicial. In conformity with this constitution, these departments have all been organized: they have formed a code of laws, civil and criminal, adapted to their situation; have erected courts to expound and apply those laws, and organized an executive to carry them into effect. They have established schools for the education of their children, and churches in which the Christian religion is taught; they have abandoned the hunter state and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States. They have understood that some of their white brethren, citizens of the United States, have sometimes indulged in speculative objections to their title to their lands; on the ground that they are mere savages, roving over the surface of the earth in quest of game, having never appropriated the soil to themselves by incorporating their own labour with it, and turning it to the purpose for which the God of nature intended it-of supporting the greatest practical amount of human life. Even if this hypothesis of fact were true, how such an objection could stand with those solemn treaties by which their boundaries have been designated, and their lands within those boundaries guarantied to them by the United States, they find themselves utterly unable to comprehend. Nor have they yet been informed how their white brethren have ascertained that this earth was designed only for the purpose of agriculture, and that no title could be acquired to any portion of it in any other manner than by actually digging into its bowels; nor how digging into one part of it can give a title to hundreds and thousands of miles, at a distance from the part thus dug. They are still more confounded in attempting to reconcile this theory of a title derivable only from cultivation, with the alleged title by discovery arising simply from sailing along the coast, at several miles distance from the shore, without even touching the land: and finally, they are equally perplexed |