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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

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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

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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,

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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.]