Qass. 
 Book. 
 
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 /^ f^ H/'V 
 
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 C{/jl.A.ixi^ 
 
 OFINZON 
 
 ON THE RIGHT OF THE 
 
 STATE OF GEORGIA 
 
 TO EXTEND HER LAWS 
 
 THE CHEROKEE NATION. 
 
 BY WILLIAM WIRT, ESQ. 
 
 Reprinted from a copy forwarded from the press of the Cherokee 
 Phoenix, Echota. 
 
 33altimoft: 
 
 PUBLISHED BY F. LUCAS, JR. 
 1830. 
 

 .e 5 Vi 
 
 
OPINION, &c. 
 
 The Cherokee Nation of Indians have submitted, for my 
 opinion, the following 
 
 CASE, 
 
 Long before the arrival of the Europeans on this continent, 
 and from time immemorial, they have been a sovereign na- 
 tion, rightfully under the sole and exclusive government of 
 their own laws, usages and customs, within their own do- 
 minions, of which dominions, except so far as altered by 
 treaty, they have ever been and still are the absolute lords 
 and masters, acknowledging no earthly superior. The ar- 
 rival of the Europeans on this continent, produced no change 
 in their political condition. They were never conquered. 
 They have had various wars with the white people, which 
 have been followed by treaties of peace, of which, the white 
 people were always as desirous as themselves. They have 
 also made various cessions of their lands to the white peo- 
 ple, by voluntary treaty. But they have always been re- 
 spected, and treated with, by the British Government, by 
 the State Governments, by that of the United States, under 
 their articles of confederation, and lastly, by that of the pre- 
 sent United States, under their federal constitution, as a 
 sovereign people^ to be governed exchmvely, by their own 
 laws, usages and customs, and owing no allegiance, either to 
 the State Governments, or to the Government of the United 
 States ; nor amenable to their laws, except so far as they 
 have engaged, by their own voluntary treaties, to respect 
 those of the United States, made to give cjj'ect to tliese treaties. 
 If the United States declare war against a foreign country, 
 the Cherokees are not bound to take a part in that war, un- 
 less they chose to do so of tiieir own accord. If a civil war 
 take place among the States, tlie Cherokees arc not involv^- 
 ed in that war, nor responsible for its consequences. Tiicy 
 
have nothing to do, cither with the State Governments or 
 the Federal Government ; had no voice in the formation of 
 their respective constitutions; are not represented in their 
 councils; are not called upon to contribute to the expense of 
 those governments, which are to them, foreign governments; 
 and have never, heretofore, been required, or expected to 
 obey the laws of these Governments, nor in any manner to in- 
 termeddle with tliem, or to be affected by them. 
 
 By various cessions of their lands, made from time to 
 time, by treaties, and for valuable consideration, their once 
 extensive domain has been much reduced, but is still sulfi- 
 ciently large for all their purposes. This domain lies within 
 what are called the chartered limits of four of tlie states of 
 the Union, the states of Georgia, North Carolina, Tennes- 
 see and Alabama. Within this domain they are still sove- 
 reign, and governed ecclusively by their own laws; having 
 never been considered or treated as citizens of these slates, or 
 of the United States; having none of the rights of such citi- 
 zens; but on the contrary, in all their treaties with tlie Uni- 
 ted States, being continually spoken of as conlra-distin- 
 guislied from the citizens of the United States. They have 
 had wars with the United States, which have been termina- 
 ted by treaties of peace ; they have never been regarded as 
 traitors in such wars, which they must have been, if they 
 were citizens of the United States; but on the contrary, the 
 treaties of peace, which have followed such wars, have 
 borne all the characters, and have contained all the stipula- 
 tions which are usual in such treaties, when made between 
 two sovereign nations who have been engaged in war. 
 
 Their first treaty with the United States, was at that 
 made at Hopewell in 1785. The preamble to this treaty, 
 as it stands in the English language, in which it was reduced 
 to writing, states that the Commissioners of the United 
 States "gn'Cjjcocc to all the Cberokces, and receive them 
 into the favour and protection of the United States on the fol- 
 lowing conditions." The Cherokecs have understood that 
 a certain description of men, whose trade it is to deal in 
 icords, and who, therefore, think more of ?f orf/s than things, 
 have caught at the expression "^'-ii'c pcacc'^'' as an admission, 
 on the part of the Cherokecs, that they were a conquered 
 2)cople, and were suing lor j)eace, at the feet of their con- 
 querors, on such terms as they should be pleased to dictate; 
 but these word-mongers can know very little of the history 
 
of that time and that transaction, or must suppose themselves 
 addressing others equally ignorant uj)oa this subject, wlien 
 they venture to draw such an inference from those words. 
 To those who know the truth of the case, this inference is 
 mere smoke. Every white man, decently acquainted with 
 the history of his own country, knows that the United States 
 came out of the war of the revolution in a state of extreme 
 exhaustion, and were the first to sue for peace from the In- 
 dians, who had been engaged in that war, on the British 
 side. The United States asked peace of the Cherokees, and 
 after having refused it for some time, the Cherokees at length 
 acceded to it, and it was established by this treaty. As to 
 the words employed in the preamble, it is idle to attempt 
 to draw an inference of fact from them, so directly op- 
 posed to the well known historical truth of the case. In 
 making this treaty, the Cherokees, according to their habit, 
 looked to the substance of the thing, not to the form. The 
 expression in the preamble, on which this quibble is raised, 
 against the known fact, is in a language not then understood 
 by the Cherokees. The treaty was arranged by interpreters : 
 and the tlimg understood was, that there ivas to be peace by 
 mutual consent, and this was the only thing understood. The • 
 Cherokees well knew that tliey were inferior to their white 
 brethren in the arts of peace as well as the science of war. 
 Aware of this, they were willing to prolit by tbeir protec- 
 tion. Before the revolution, they had declared themselves 
 under the protection of the British, and the King of England 
 was called their "Great Father," And the United States 
 > having now become an independent nation, tbay were willing 
 to place themselves, in like manner, under the protection of 
 the United States. %\.\\. 'proleciion is one thing, and subjection 
 another. The first they were willing to receive; if the last 
 had been demanded, as a condition of the treaty, the hatchet 
 would not have been buried at Hopewell, in 17 bo. But the 
 question whether they were a conquered people or not, who 
 were thenceforth to lose their separate national existence, to 
 renounce the rights of self-government, to become citizens of 
 the United States, and to be governed in common with their 
 other citizens, by the laws of the Unhed States or of the 
 individual States, is not to be answered by a rcfeicnce to 
 these few words only, thus Ibislcd into tlie preamble in a 
 language unknown to the Cherokees. This question is to be 
 answered by an appeal to the stipulations of the treaiy, 
 
themselves. This is substance not form. And to these the 
 Cherokces fearlessly appeal in proof of the fact that they 
 were treated with, and acknowledged as a separate, sovereign 
 nation., who were to have the exclusive possession of their 
 own territory, designated in that treaty by metes and bounds, 
 free from any interruption by the citizens of the United States, 
 from whom the treaty clearly distinguishes them ; and 
 they are regarded, by that very treaty, as clothed with that 
 pre-eminent badge of sovereignty, the right of making war ; 
 even of making war upon the United States. 
 
 The first and second articles in the treaty are in these 
 words: "The head men and warriors of all the Clierokees^ 
 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." 
 
 2d. "The commissioners of the United States in Congress 
 assembled, shall restore all the prisoners taken from the In- 
 dians, during the late war, to the head men and warriors of 
 the Cherokees, as early as is practicable." 
 , Does this mutual exchange of prisoners import a conquer- 
 ed people, who had lost their national sovereignty by right 
 of conquest.'' On the contrary, it is the stipulation of equal 
 sovereigns who had been engaged in lawful war, and finds a 
 place in all treaties of peace among the sovereigns of Eu- 
 rope. 
 
 Again, the 8th article is in these words : " It is understood 
 that the punishment of the innocent under the idea of retalia- 
 tion, is unjust, and shall not be practised on either side, ex- 
 cept 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, bij a declaration of hostilities." Is it possible 
 to reconcile this right of declann"- regular war against the 
 United States with the idea that the Cherokees were a con- 
 quered people, who had surrendered their national sove- 
 reignty, and had agreed to become amalgamated Avith the ci- 
 tizens of the United Stales? What right could citizens of the 
 United States have to levy war against the United States.'' 
 Such an act would be treason, not regular war. 
 
 Tlie 4th arti(;hi b(!gins tlius: " The bmnulary line allotted 
 to the Cherokees i'ov their hunting grounds, bdircen the said 
 Indians and the citizens of the United Slates, within the limits 
 
of the United States of America, is and shall be the follow- 
 ing:" in this striking manner distinguishing between the In- 
 dians and the citizens of the United States^ and separating 
 them by a marked boundary. 
 
 The 4th article having designated the boundar}'-, the 5th 
 provides "thatif awi/ citizen of the United States shall attempt 
 to settle on any of the lands within that boundary, he shall for- 
 feit the protection of the United States, and the Indians may 
 punish him or not, as they please." Thus again recognizing 
 the distinction between the Indians and citizens of the Uni- 
 ted Skites; and recognizing., at the same time, the sovereign right 
 of the Indians to give the laic and to inflict punishment xoithin 
 their own boundaries. The 6th article provides for the de- 
 livering up, by the Indians, of any Indian or other person 
 residing among them, or loho shall take refuge in their nation, 
 who shall have committed robbery or murder or other capi- 
 tal crime on any citizen of the United States. The 7th arti- 
 cle contains a correspondent provision for the punishment of 
 any citizen of the United States or person under their pro- 
 tection, who shall have committed the same sort of crimes 
 on the Indians. The 10th article gives liberty to all traders, 
 citizens of the United States to go to any of the tribes, or towns 
 of the Cherokees, to trade with them, and stipulates that they 
 shall be protected in their persons and property, and kindly 
 treated. The 1 1th stipulates that the said Indians shall give 
 notice to the citizens of the United States of any hostile de- 
 sign of the neighbouring tribes against them. 
 
 Thus, the distinction between the Indians and the citizens of 
 the United States pervades the whole treaty. The Cherokees 
 are, in every partof this national compact, treated as a separate 
 and sovereign nation, clothed with the right of self-government 
 within their own territory, and the high and solemn right of 
 making peace and war with the United States, with an ex- 
 press stipulation that the citizens of the United States who 
 intrude upon them, shall be entirely at their mercy. 
 
 Some of the officers of the United States claim this treaty as 
 a still subsisting treaty, and insist on all its stipulations in their 
 favour, while another high officer of the UnitediStates on the 
 occasion of a recent punishment intlicted bu the Indians un- 
 der the 5th article, has denied the authority of the treaty, on 
 the ground that it was '■'■made more than forty years ag-o." 
 The Cherokees presume that tfic treaty is cither in force, or 
 not in forcej it cannot be in force as against them, and, at 
 
the same lime, obsolete where it works in their favour. As 
 to its having been made more tlian forty years ago, they have 
 not been favoured with a reference to that work on the law of 
 nations, from ^vhich the very enliglitened officer in question 
 lias derived the principle that a treaty, unlimited in its terms, 
 becomes obsolete, cifler forty years: more especially when, as 
 in this case, the treaty has been recognized by the parties as 
 a subsisting treaty, down to the present time. The language 
 with which the 4th article opens — "tlie boundary allotted to 
 the Chcrokees for their hunting grounds" — has given occa- 
 sion to farther quibbles on words which scarcely deserve no- 
 tice. The word allotted is, again, supposed to imply and ad- 
 mit a conquest of the Cherokees, and that the United States 
 as their sovereigns, were making them a gracious and tempo- 
 rary loan of these lands, for the mere purpose of hunting on 
 them, until the United States should be pleased to resume 
 them. The criticism either means this, or it means nothing 
 of any account or value. But it is a mere hypercriticism on 
 icords which is refuted by every provision of the treaty, by 
 the practical construction under it, by every subsequent trea- 
 ty and its practical construction; and, lastly, by the courts of 
 the United States, themselves, whenever they have been 
 called to consider the character of the Indian title to their 
 lands. How would these phrases, which are deemed so sig- 
 nificant in the English language, have been interpreted to 
 the Cherokees, who, from their ignorance of the language, 
 could have been negotiated with, only, through an interpre- 
 ter.'' What other idea could have been conveyed to them, by 
 any interpreter, than that the boundary about to be described 
 was to be the boundary belioeen them and the citizens oftlie Uni- 
 ted States. As the boundary, itself, the only material thing 
 in question, accorded with their own notions of their rights, 
 was it to have been expected of them to take exceptions to 
 the niceties of expression in a language which they did not 
 understand, in order to guard against the future possibility of 
 quibbles which they as little understood .'' Quibbles, too, in 
 a treaty, whose object and essence is plain and honest good 
 faith, and a tieaty \y\[\vunenUghlcncd hulians, who were in- 
 vited to {)laco tkemselves under (he protection of the Inited 
 States? As totiieir grounds being called hunting grounds, 
 the designation Avas proper: the Cherokees were, tiicn, in 
 the hunter state, and, at that tunc, had no other use for these 
 grounds but for the supjiorl aud chase of their game. They 
 
have since, on the solicitation and under the tuition and as- 
 sistance of the United States, become agriculturists: and their 
 right to use their grounds for agriculture has been acknowl- 
 edged in solemn treaties: yet on this phrase "hunting 
 grounds," "in a treaty made more than forty years ago," an 
 argument is attempted to be raised that their only right to 
 these grounds is for the purpose of hunting on them. 
 
 After this treaty of Hopewell, another war broke out be- 
 tween the United States and the Cherokee Indians, and this 
 was terminated by the treaty of Holston in 1791, The fed- 
 eral constitution of the United States had then been adopt- 
 ed; and this treaty was negotiated by commissioners appoint- 
 ed and instructed by President Washington, by and with the 
 previous advice and concurrence of the Senate of the United 
 States. In the message of consultation which he sent to the 
 Senate on that occasion, he states that the white people had 
 intruded on the Indian lands, as bounded by the treaty of 
 Hopewell; declares his determination to execute the power 
 entrusted to him by the constitution, to carry that treaty into 
 faithful execution, unless a new boundary should be arranged 
 with the Cherokees, embracing the intrusive settlement, and 
 compensating the Cherokees therefor. 
 
 And he puts to the Senate, among others, this question. 
 
 "3. Shall the United States stipulate solemnly to guaranty 
 the new boundary which shall be arranged ?" 
 
 The Senate answer : 
 
 "Resolved, that in case a new, or other boundary, than 
 that stipulated by the treaty of Hopewell, shall be conclu- 
 ded with the Cherokee Indians, that the Senate do advise and 
 consent solemnly to guaranty the same." 
 
 This consultation took place in August, 1790: and, in 
 consequence of it, the treaty of Holston was made on 
 the 2d July, 1791. It is a treaty between the Cherokee 
 JVation on the one side, and the United States on the 
 other, treating as sovereigns. The obnoxious words, "the 
 United States give peace,'''' do not occur here. The first 
 article is: "There shall be perpetual peace and friend- 
 ship between all the citizens of the United States of Jlme- 
 r'lca, and all the individuals composing the Cherokee nation 
 of Indians.^'' Here we have the same distinction again pre- 
 sented, between all the citizens of the United States and all 
 the individuals composing the Cherokee nation of Indians. 
 
 By the 2d article the Cherokees acknowledge themselves 
 2 
 
10 
 
 to be under the protection of the United States of Jimerica, 
 and of no other sovereign whosoever ; and stipulate that they 
 '■'"will not hold any treaty with any foreign power ^ individual 
 State, or with individuals of any Stale.'''' 
 
 They, thus placed themselves e.vclusivcly under the pro- 
 tection of the United States, and not ol' any one state, and 
 their political capacity to treat with foreign powers is admitted, 
 by the stipulation rccpdred of them, that they ivill not exercise 
 this right. Is not this an additional admission on the part 
 of the United States, of the sovereignty of the Cherokee Na- 
 tion ? 
 
 The third article again stipulates a mutual exchange 
 of prisoners, in tlie style constantly in use among equal so- 
 vereigns, who are concluding a war by a treaty of peace. 
 
 "Article 4th. The boundary between the citizens of the 
 United States and the CVierofcce JVation is and shall be as 
 follows" — the article then proceeds to designate the bounda- 
 ry — provides for the marking of it — and "in order to extin- 
 guish forever all claims of the Cherokee JVation or any part 
 thereof," to the lands lying out of this boundary, the com- 
 pensation is fixed, and the lands are ceded by the Cherokees. 
 
 The 5th article stipulates that the citizens and inhabitants 
 of the United Stales shall have a free and unmolested use of 
 a road through the Cherokee Territory. The Cherokee 
 Territory is thus acknowledged to have been so exclusively 
 theirs, that the citizens of the United States would have no 
 right even of passage through it, unless the Cherokees had 
 conceded this right by treaty. 
 
 The 7th article contains the guaranty \\liich President 
 Washington had proposed to the Senate, and which the Senate 
 had advised. The article is in these words : 
 
 "Article 7th. The United States solemnly guaranty to the 
 Cherokee JVation, all their lands, not hereby ccded.''^ 
 
 "Article 8th. Jf any citizen of the United Slates, or other 
 person, not bein<^ an Indian, shall settle on any of the Che- 
 rokees'' lands, such person shall Ibrl'eit tlie protection of the 
 United States, and tliC Cherokees may punish him or not as 
 they please.''^ 
 
 "Article 9lh. JVocilizen or inhabitant of the United States 
 shall attempt to iiunt or destroy the game 07i the lands of the 
 Cherokees; nor shall a7iy citizen or inhabitant go into the 
 Cherokee country, without a passport first obtained from the 
 Governor of some one of the United States or territorial 
 
11 
 
 districts, or such other person as the President of the Uni- 
 ted States may, from time to time, authorize to grant the 
 same." 
 
 By the 10th article, the Cherokees bind themselves to de- 
 liver up any of their own people, or others, fugitives from 
 justice, who shall have committed crimes against citizens of 
 the United States^ and have taken refuge hi the JYation. Why 
 was this necessary, if their Teritory belonged to the jurisdic- 
 tion of Georgia ? 
 
 By the 11th article, it is provided that "if any citizen or 
 inhabitant of the United States, or of either of the territorial 
 districts of the United States shall go info any town or settle- 
 ment or territory belonging to the Cherokees, and shall there 
 commit any crime upon, or trespass against the person or 
 property of any peaceable and friendly Indian, which, if 
 committed icitlwi the jurisdiction of any state, ovxcithin the ju- 
 risdiction of either of the said districts, against a citizen or 
 White inhabitant thereof, ivould be jnuiished by the laws of 
 such state or district, such offenders shall be subject to the 
 same punishment, and shall be proceeded against in the same 
 manner, as if the offence had bee7i committed within the juris- 
 diction of the state or district to lohich he or they may belong: 
 against a citizen or white inhabitant thereof" Here is a 
 distinct and decisive admission by the United States, that "the 
 towns, settlements and territory belonging to the Cherokees," 
 are not uiihin the jurisdiction of any state or territory of the 
 United States, nor subject to the latcs of tliose states or territo- 
 ries; and that but for this consent on the part of the Clierokees 
 by treaty, that citizens of the United States committing crimes 
 within their jurisdiction might be punished by the laws of their 
 oivn states or territories, those citizens xoould have been regular- 
 ly punishable for such crimes only by the jurisdiction of tlie 
 Cherokees, against wliich tJtey had offended. 
 
 The 12th article of the treaty stipulates tliat, in case of 
 violence on tlie persons or property of the individuals of 
 either party, neither retaliation or reprisal shall be committed 
 by the other, until satisfaction shall have been demanded of 
 the party of which the aggressor is, and shall have been re- 
 fused, llere is the right of war by the Cherokees against 
 the United States again admitted. 
 
 The 1 3th article, again stipulates, that the Cherokees shall 
 give notice to the citizens of the United Stales of any hostile 
 designs which may liavc been formed against them. 
 
12 
 
 Art. 14th. " That the Cherokee nation may be led to a 
 greater degree of civilization, and to become herdsmen and 
 cultivators instead of remaining in a state of hunters, the Uni- 
 ted States will, from time to time, furnish gratuitously, the 
 said nation with useful implements of husbandry, and fur- 
 ther to assist the said JVation in so desirable a pursuit, and at 
 the same time to establish a certain mode of communication, 
 the United States will send such, and so many persons to re- 
 side in said JVation, as they may judge proper, not exceeding 
 foyr in number, who shall qualify themselves to act as inter- 
 preters. These persons shall have lands assigned tliem by the 
 Cherokees for cultivation for themselves, and their success- 
 ors in office; but they shall be precluded exercising any kind 
 of traffic." 
 
 In tliis manner the United States have continued to treat 
 with the Cherokee Nation, as a sovereign Nation, down to 
 the present time. 
 
 In the year 1 808, the Cherokee Nation expressed to the 
 United States their inclination to divide themselves into two 
 Nations. Part of them, about one tliird, were disposed to 
 continue the hunter state, and, with this view, to remove to 
 the west, where game was more abundant, on lands to be 
 assigned to them by the United States in exchange for their 
 proportion of the lands east of the Mississippi; the other 
 part were disposed to remain "io engage in the pursuits of 
 agriculture and civilized life in the country tliey then oc- 
 cupied'''' — where, "they proposed to begin the establiihment 
 affixed laics, and a regular government?'' Their wishes 
 were communicated to the President of the United States, 
 who favoured the scheme. Under his permission, and sanc- 
 tion, part of them removed, in the year 1809, to the Arkan- 
 sas, and the separation was carried into complete effect by 
 the treaties of 1817, 1819; it heing perfectly understood, 
 agreed, and encouraged by the United States, that those 
 who should remain, would '■'■engage in the pursuits of ag- 
 riculture and civilized life,'''' under the protection of '■fixed 
 laws and a regular government,^'' to be establisluid by tliem- 
 selves. 
 
 These admissions of their separate sovereignty as a nation, 
 of their exclusive right to govern themselves within their own 
 territory, and the inviolahility of that territory, thus distinct- 
 ly made hy all their treaties with the United States, have 
 been no less distinctly made in practice, and this distinction 
 
13 
 
 has been made throughout all past time. Neither the King 
 of England, nor his colonial Governors, nor the several 
 States, nor the United States have ever pretended a right to 
 extend their laws over the Cherokee people within their own 
 territory, until the 19th December, 1829. On that day, the 
 state of Georgia passed a law entitled "an act to add the 
 territory lying within the chartered limits of Georgia., noio 
 in the occupancy of the Cherokee Indians., to the counties of 
 Carroll., Dekalb., Grvinnett, Hall and Habersham^ and toex- 
 tend the laios of this state over the sayne, and lo amnd all 
 laws and ordinances made by the Cherokee A''ation of In- 
 dians^ and to provide for the compensation of officers serv- 
 ing legal process in said territory., and to regulate the tes- 
 timony of Indians, and to repeal the 9th section of the act 
 of 1820 on this subject." 
 
 The first five sections of the act are employed in distribut- 
 ing the Cherokee territory among the five Counties named 
 in the title. 
 
 The 6th section extends all the la^vs of Georgia, both 
 civil and criminal, over t]}e portions of the Cherokee territo- 
 ry so annexed to those Counties. 
 
 The 7th abolishes the Cherokee laws, and declares that 
 in all cases of indictment or civil suits, it shall not be lawful 
 for the defendant to justify under any of those laws, and 
 forbids the Courts of the state to permit those laws to be 
 given in evidence. 
 
 The 8th makes it unlawful for the Cherokees to attempt 
 to prevent the individuals of their own nation from enrolling 
 for emigration: and the 9th subjects them to indictment and 
 punishment before the state Courts for the offence described 
 in the former section. 
 
 The 10th makes it unlawful in the Cherokee Nation to 
 prevent the individuals of that nation i'w\n selling or ceding 
 their lands to the United States for the use of the state of 
 Georgia; (there being no such thing as individual i\{\e to 
 lands in the Cherokee Nation; but the whole of those lands, 
 accO!ding to their laws, belonging to the entire nation, as a 
 nation.) 
 
 The 1 1 th annexes the punishment of imprisonment for 
 four years to the foregoing oti'ence. 
 
 The 12th and 13th make it murder in the Executive, Min- 
 isterial, or Judicial officers of the Cherokee Nation to inflict 
 sentence of death, though in conformity with their own laws; 
 
14 
 
 declaring all those officers so concerned in carrying their 
 own laws into effect, principals; and subjects them, all, to in- 
 dictment and death, by hanging. 
 
 The 14th extends the jurisdiction of the Georgia magistrates 
 into the Cherokee Territory, and authorizes the officers who 
 shall carry ibe process for service to call out the militia of 
 the state to overcome resistance. 
 
 And the 15th section declares "that no Indian or descen- 
 dant of any Indian, residing within the Creek or Cherokee 
 Nations of Indians, shall be deemed a competent witness in 
 any Court of this state, to which a white j)erson may be a 
 party, except such white person resides within the said Na- 
 tion." 
 
 On this case I am asked the following 
 
 QUESTION: 
 
 Has the state of Georgia a right to extend her laws over 
 the Cherokees, within the Cherokee Territory.-* 
 
 OPINION. 
 
 The answer to this question depends on the political rela- 
 tion which the Cherokees hold to the State of Georgia. If 
 they are cilizens of that State, residing icilhin tlie jurisdiction^ 
 they are unquestionably sut)jcct to her laws; if not, it is just 
 as clear that the state of Georgia has no authority to extend 
 her laws over them. How is the question of the political 
 condition of these people to be settled.? I know of no other 
 mode of doing it than by an appeal to their history. Look- 
 ing to this history, we find that they composed a part of the 
 aboriginal inhabitants of this country, and, in their origin, 
 they were, unquestionably, a sovereig7i people, oiviyig alle- 
 giance to no other earthly potentate, lias this condition been 
 altered by any thing thai has since occurcd.'' A\'e arc not 
 informed, by history, of any such alteration. 
 
 The Europeans held that the title of the hidia^is to their 
 lands underwent a change by force of discovery: that is to 
 say, that the particular ))ower of Europe \vhich made the 
 first discovery accjuiied the right to puicliase these lands of 
 the Indians, in piel'crenee to and in exclusion of all other dis- 
 coverers. VmY \\\\'^ change of tlie Indian title to their kmds 
 was not considered l)y the powers of luirope as altering the 
 polilical condition of these people. With regard to their 
 
15 
 
 lands^ they were admitted" says chief Justice Marshall, in 
 the case of Johnson and Mcintosh, '■Ho be right/id occupants 
 of the soil, u'itlt a legal as well as just claim to retain tite pos- 
 session of it, and to use it according to their own discretion;''^ 
 and with regard to {hclv political condition, (j rent Britain, 
 the prior discoverer of tliis part of the continent, continually 
 treated \v\ih these people, as a sot'crcio-n ])co^/e, and acknowl- 
 edged in practice, as well as theory, their exclusive right to 
 govern themselves by their own laws, usages and customs, 
 upon the territory of which they held the present right of 
 possession, and which they and their heirs forever were en- 
 titled to hold, exclusively, until they chose to surrender it by 
 treaty. The same right which had been held by Great Britain, 
 and no other, passed to the United States by tiie revolution; 
 and the same rights and no others have been unilbrmly assert- 
 ed by the United States. The various treaties which have 
 been set forth and referred to in the case stated, and to which 
 the State of Georgia as one of the United States was a par- 
 ty, contains the most unequivocal admissions, that these people 
 are not citizens of tlie United States, and therefore cannot be 
 citizens of any one of the States; that the territoiy within 
 which they dwell, belongs to them as a separate people; that, 
 within this territory, they are the sovereign and only lawgiv- 
 ers. And these treaties exhibit them as clothed with attri- 
 butes of sovereignty utterly irreconcilable with the idea of 
 their being citizens of the United States, or of any one of the 
 states : Such for example, as the right of declaring War 
 against the United States, on a demand and refusal of a redress 
 of injuries. 
 
 The State of Georgia, it has been said, has a right to 
 legislate over all people within her territory. But the Chero- 
 kee Indians are not people within her territory. The territory 
 which they occupy is not, at present, a part of the territory 
 of Georgia. Her title is tiiat only of the ultimate domain 
 after it shall have been relinquished by the Indians. At pre- 
 sent, it is the territory of the Indians. " They are the rightful 
 occupants of the soil, with a legal as loell as just claim to 
 retain the possessio)i, and to use it according to their discretion.^'' 
 And although their right is lightly spoken of, because it is 
 a mere right of occupancy, yet it is to be remembered, that 
 it is an exclusive right of occupancy; a right lohich sta/uls so- 
 lemnly guaranteed to them by the U n'lted States; a right which 
 belongs to them and tlieir Iieirs forever; a right xvhichthey may 
 
 ! 
 
16 
 
 alienate, or not, at their pleasure, subject to no other restric- 
 tion than thisjtiiatthey can alienate only to the United States 
 of America. 
 
 The Territory which the Cherokees occupy is not, at 
 present, therefore, the territory of Georgia, considered as pro- 
 perty. But the material question with reference to the enqui- 
 ry before us, is, whether this territory be within the juris- 
 diction of Georgia. If it be not, it is clearly not subject to 
 her laws. And this question is directly answered by the 
 whole scope and tenor of the treaties which have been cited 
 and quoted in the case prefixed to this opinion. The 11th 
 article of the treaty of Ilolston, contains an express and de- 
 cisive admission, of the principle implied in all these trea- 
 ties, throughout all tiieir provisions: to wit, that the territory 
 of the Clierokees is not within the jurisdiction of the States, 
 nor subject to their knvs. This treaty is recognized as in full 
 force by all the subsequent treaties. Georgia, as one of the 
 United States, is a party to it, and is estopped to deny what 
 she has thus solemnly admitted. 
 
 The fact that the territory occupied by the Cherokees 
 lies within the chartered limits of Georgia, establishes 
 notliing with regard to the question under consideration. 
 That charter granted the tide of the monarch who gave it, 
 and nothing more; and neither himself nor his grantees con- 
 sidered it as conferring any right to take from the Indians, 
 their lands, by force, much less to abolish their laws, usa- 
 ges and customs, and to extend the British laws, compulsive- 
 ly, over them. The impressions of the British monarch, or 
 rather the several British monarchs, in succession, since the 
 discovery by Cabot, including the particular monarch who 
 gave the charter of Georgia, George II., with regard to 
 their relation to these people and their lands, has been alrea- 
 dy stated. They considered the Indians as the present 
 owners of the land, and that these lands could be rightfully 
 accjuired in no other way than by voluntary surrender by 
 treaty, made by the whole nation in full Council. They 
 treated with tiiem as sovereigns possessed of the exclusive 
 right of self govcr?imcnt. They styled them their Indian 
 allies and Friotd.s-, and never, in any age, was an attempt 
 made, or a right insinuated, by any British monarch, to abol- 
 ish their own laws, and to substitute, by compulsion, those 
 of Great Britain. So much for the understanding of the 
 monarch who gave the charter of Georgia, aud of all his 
 
17 
 
 predecessors and his successors, witli regard to the rights and 
 authorities of the British Crown, over the Indians and their 
 lands. 
 
 Now let us look to the understanding of the original gran- 
 tees of that charter, on this same subject. Governor Ogle- 
 thorpe led the first colony into Georgia under that charter. 
 He arrived at the present site of Savannah in 1733. And 
 how did he proceed? Did he consider his charter as con- 
 ferring a right to expel the Indians from their possessions by 
 force, or to abolish their own laws among themselves, and 
 enforce the British laws upon them? Far from it. " A treaty 
 was held with the Creek Indicms to ic/wm the lands were ad- 
 mitted to belongs and the cession of a considerable tract xcas ob- 
 tained from them?'' 1st. Vol. Marshall's life of Washing- 
 ton, ch. IX. Thus the very first step under this charter, by 
 the original grantees^ was an admission that those lands be- 
 longed to the Indians^ and were to be gained only by ces- 
 sion; and was a practical admission of the sovereignty of the 
 Indians, by the act of treating with them as sovereigns : and, 
 of necessity, was an admission of their exclusive right of 
 self-government, for they could not be sovereign, without 
 such right. Will it be said that these admissions were 
 wrung from the infant colony, by their want of physical 
 strength to assert their rights against the vis major of the In- 
 dians? But the same admissions continued to be made after 
 the colony had acquired maturity and power to assert all 
 their rights. The British Colonial Government, under this 
 charter, had some respect for their own character, and for 
 the opinion of the world. So anxious were they to avoid eve- 
 ry appearance of taking an unfair advantage of the ignorance 
 of their Indian allies and I'riends, that, in a treaty of cession, 
 made shortly before the American revolution, they take 
 care to declare on the face of the treaty, that it was made in 
 consequence of the solicitation of the Indians themselves, 
 who ivished to raise money for the payment of their debts. 
 Such was the practical construction of the British monarch 
 who gave this charter, and of the grantees under it, prior to 
 the American "rerolution, and the same, as has been shewn, 
 has been the practical construction by the United States 
 (Georgia included) since the revolution. 
 
 The charter, it is presumed, has not experienced a new 
 vegetation, and put forth new rights, within the last few 
 years. The position of Georgia, herself, is that she took all 
 3 
 
18 
 
 the rights of British colonists, under that charter, with regard 
 to these people: granted, and it lias been shewn by the con- 
 cession of the British colonists themselves, that they had no 
 right to dispossess the Indians, by force, or to interfere with 
 their right of self-government. 
 
 Although this territory, then, does lie within the chartered 
 limits of Georgia, I am of the opinion that the people of 
 Georgia have no right to disturb the Indian possession of 
 these lands, nor to interfere with their government. The Uni- 
 ted States stand pledged by the solemn guaranty of a subsist- 
 ing treaty, twice sanctioned by the Senate of the United States, 
 to protect the possession of the Indians. 
 
 By the same treaty, it is stipulated that no citizen of the 
 United States shall even cross the Indian boundary, without 
 a passport first obtained/row the governor of some one of the 
 States or territorial districts, or swc/i other person as the Pre- 
 sident shall appoint. Is a writ from a court, or a warrant 
 from a magistrate of Georgia such a passport from the Go- 
 vernor as the treaty contemplates ? Or is the service of such 
 process upon the Indians, within their own territory, under 
 the authority of the State of Georgia, such a visit, under a 
 passport, as the parties to this treaty manifestly contemplat- 
 ed ? Shall the inviolability of the Indian territory have been 
 consecrated by the treaty against even a peaceable visit, 
 without a passport : and can it be believed to have been with- 
 in the contemplation of the parties, that the State of Georgia 
 should be at liberty to dismember the whole territory, at her 
 pleasure, to amalgamate it with her Counties, and to spread 
 her officers over it, in every direction, for the apprehension 
 and punishment of these Indians, for obedience to their own 
 laws? This can scarcely be believed by any man, who is not 
 blinded by prejudice or passion, to have been the intention 
 of the parties to this treaty. And, if so, it must be manifest 
 that every officer in the State of Georgia, who crosses the 
 Indian boundary in execution of her law, violates that gua- 
 ranty which the faith and honour of the United States stand 
 pledged to make good. 
 
 It is said, that to permit them to govern themselves on 
 those lands, would be to permit a Government uithin a Gov- 
 ernment, which is represented as a monster in politics, never 
 heard of before. But, the objection is not true in point of 
 fact: it is not a Gover?iment within a Government, in the sense 
 of the political axiom to which the objection alludes. Tiie 
 
19 
 
 absurdity whicli the axiom repels, is that of two distinct and 
 equal sovereignties affecting to operate, at thesame time, up- 
 on the same portion of territory. But that is not the case, 
 here; for the Cherokees do not pretend to any right of go- 
 vernment, beyond tiie limits of the territory whose exclusive 
 possession they hold, under the guaranty of the United States; 
 and as long as the neighbouring States respect that guaranty, 
 they have no government within the Indian limits; for they 
 cannot exercise the powers of government there, without a 
 direct and continued violation of the Indian right of posses- 
 sion. It is only by begging the question, and assuming the 
 right of the neighbouring states to govern the Indians by state 
 laws, within the Indian possessions, that the political sole- 
 cism of a government within a government is produced. In- 
 stead of proving the right of the states to overleap the gua- 
 ranty of tlie treaty, this right is assumed, and having thu* 
 gained foothold within the Indian limits, the exclusive right oi 
 government on the 'part o/ the States is, then, maintained on 
 account of a political solecism created solely by this unwar- 
 ranted assumption. For it is manifest that so long as the In- 
 dians confine their government within their own limits; and 
 the states operate only on the territory exterior to those lim- 
 its, there is no conflict of laws, no political paradox, noimpe- 
 rium in imperio: each moves in its own separate sphere, 
 without the slightest collision with the other. 
 
 If hy di government within a government^ it be meant that 
 the territory all around the Indians is under the government of 
 several of the States, this is no political paradox, and is not at 
 all the meaning of the axiom in question. It is a thing of every 
 days occurrence, for a small state to be surrounded by the 
 territories of another sovereignty. It was the condition of 
 all the small republics in Europe: of Venice, of Silesia, of 
 Lucca, the Hanse Towns,of Switzerland, and is, now,the con- 
 dition of every district, arsenal, dockyard, fort and hospital un- 
 der the exclusive government of the United States, within the 
 bosom of the States. I see not why the government of Con- 
 gress, within the D. of Columbia should not as well be con- 
 sidered a government loithin a government, because surroun- 
 ded by the State authorities of Maryland and Virginia, as 
 that the self-government of the Cherokees, within ther lim- 
 its, should be considered a government within a government 
 because surrounded by the State authorities of Georgia, Al- 
 abama and Tennessee. In both cases, it is matter of com- 
 

 20 
 
 pact : and so long as the compact is respected, there is no 
 collision of authorities, but the political relations of the par- 
 ties are as separate and distinct, and their action as harmo- 
 nious, as if they were j)arted by oceans. 
 
 The mutual annoyance resulting from the neighbourhood 
 of the parties is a consideration of- mere expediency^ and does 
 not touch the question of right: it is to the last alone, that 
 my opinion is confined. But on this objection of expediency 
 it may be observed that, in our own society, the inconveni- 
 ences of bad neighbourhood are often severely felt; yet they 
 are not considered as authorizing the stronger of the two to 
 expel his neighbour, or to strip him of his legal rights, in or- 
 der to get rid of his vicinity. 
 
 If the right of the states to govern the Cherokees within 
 their borders be rested on the position that the ultimate do- 
 minion of the lands, now possessed by the Cherokees, belongs 
 to these states, and that, as soon as these lands shall be evacu- 
 ated by the Indians, the possession will fall to the States, the 
 same is equally true of the District of Columbia; for if thr 
 district shall ever be evacuated by Congress, there is _. 
 doubt that the several portions of it will revert, respectively, 
 to the States of Maryland and Virginia. But this future con- 
 tingent consequence does not at all impair the present anthor- 
 ity of Congress to govern the district, while it remains in their 
 occupancy, nor does it, in the mean time, incommode, in the 
 slightest degree, the action of the State governments around 
 them. 
 
 If this right be rested on the position assumed by the Su- 
 preme Court, in the cases of Fletcher and Peck and M'ln- 
 tosh and Johnson, that the States own the present fee in the 
 lands occupied by the Indians, and may grant those lands, 
 subject to the Indian occupancy; it is to be remembered 
 that, according to the same decision, it is only subject to the In- 
 dian occupancy that the States can grant those lands, and 
 that the grantees of the States, ^/iOi^^A they take the whole ti- 
 tle of the States^ cannot interfere with the Indian possession, 
 until the title shall be extinguished by a voluntary cession on 
 their part. 
 
 By these cases, therefore, the principle is established 
 ti)at these States, themselves, cannot interfere with the pos- 
 session of .the latter without their consent. How, then, can 
 they parcel out the Indian lands among their coterminous 
 counties, and incorporate them with these counties for the 
 
21 
 
 purpose of government? How can they tax the Indian 
 lands in common with their own, and sell them tor nonpayment 
 of taxes? How can they enter and sell them for debts? 
 How can they regulate the conveyance of these lands? and, 
 above all, how can they send their constables, bailiffs, she- 
 riffs, inque.' ts, ^0556 comitatus, and military officers into the 
 Indian lands, for the service of process, and the enforcement 
 of their government, without a continual invasion of the in- 
 dian possession? According to the cases on which the op- 
 posite argument relies, the States have no right to divest 
 or to disturb the Indian possession, against their consent; and 
 the case of Johnson and Mcintosh goes farther: for, in that 
 case, the Supreme Court contemplate not only an exclu- 
 sive possession of their lands by the Indians, and "a legal as 
 well as a just claim to retain that possession^ and to use it ac- 
 
 ■ '' ■'■ -'"■"'' '^»i," but they contemplate, also, 
 
 ^aws u-itkin the Indian terri- 
 '■' the courts of llie Uni- 
 
 'uire a title to 
 these lands by a purcnas^ ' say — "If 
 
 an individual might extinguisii '-^ own 
 
 benefit, or in other words might p> M 
 
 acquire only that title. Admitting the 
 their laws or usages, so far as to allow <. 
 separate a portion of their lands from the coh.. 
 and hold it in severalty, still it is a part of their terriiy. 
 is held under them by a title dependent on their own luv. 
 The grant derives its efficacy from their will ; and if they 
 choose to resume it, and make a different disposition of 
 the land, the courts of the United States cannot interfere with 
 the protection of the title. 
 
 "The person who purchases land from the Indians, within 
 their territory, incorporates himself with them, so far as 
 respects the property purchased; holds their title under their 
 protection, subject to their laivs. If they annul the grant, 
 we know of no tribunal which can revise and set aside tlie 
 proceeding." 
 
 If the right of the neighbouring States to extend their 
 laws into the Cherokee nation, be defended upon the notion 
 that they are a conquered people, in the first place the fact 
 of such a conquest either by Great Britain or by those States 
 cannot be maintained; and the fact of such a conquest by 
 
22 
 
 the United States is denied. If there ever was a conquest 
 o them at all, it u^as by the latter. But suppose for argu- 
 nient, that there was such a conquest by the Uu.ted S a ^ 
 it is for the conqueror alone to say how far he will ex end 
 the rights and powers of conquest. Conquered na tons 
 ave often been eft in the undisturbed possession of their 
 aJs al^ of their own laws, and if tj- conqueror choo^^ 
 so to leave them, what other power shall d-pute h.s uilL 
 This has been done in the present ins aijce It was don^ 
 bv the treaty of Hopewell in 1785, and by that of Holston 
 1/1791. The provisions of these treaties have been already . 
 deta led and it has been shown by that detail, that the 
 United Sta^s acknowledge the Cherokees to be a sovereign 
 r^on clothed with attributes oUoverdgnly too x^xeqmvocal 
 r^d'cm^etobe mistaken: ^l-t they «ot only acknowe^^^^^^^ 
 the territory in their possession to belong to them, butliaNe 
 ItldthekhandhLrof the United Stateyo^^uam.^^ 
 ly that possession, against the world : and tl^t ^he^ Jiave 
 acknowledged that territory to l^f ^'^^^'^'"Vf Cret e tl^^ 
 any State or District of the Unite^ States Jf' th^^^^^;^}^^^^ 
 United States be tliB oc.querors of t^^^se people ihe^^^^^^^ 
 <;pt limits to their o-zn rights of conquest, b} the tieaty 01 
 peace by tht'-eaty,the^y have left these people a sove- 
 ?eitn D ole' in the exclusive possession of their lands and 
 ^ Lis^ud have guaranteed that possession to them. 
 And si^ce'rconquei^r himself, the sole arbiter on the 
 occas on has set these limits to his own rights of conque t 
 Xto^he power can break through these limits in right 
 ;> hat conquest? Can Georgia do it? But she was one of 
 the United States, by whom the supposed conquest \^ as 
 made and, of necessity, a party to the very treaty which 
 hmited those rights of conquest. Her claim, l^^erefore 1 
 Inconsistent with her own acts; and the very moment that 
 she exhibits those treaties as evidence of conquest she 
 furnishes the proof which destroys her right to legislate 
 over these people, by right of conquest 
 
 It is understood as having been urged, among other things, 
 in oppositictn to this course of reasoning, that these treaties 
 are in fact, not treaties in the sense of the law of nations: 
 AVhY> because treaties are compacts between sovereif^ns, 
 and it is said that the Cherokee Nation is not a sovereign^ 
 But this is begging the question. Before the invasion of this 
 country bv Great Britain, they were unquestionably sove- 
 
23 
 
 reigns, for they had no earthly superior. AVhen and by what 
 cause were they divested of" this character? By discovery? 
 But this was a principle agreed on only by the discoverers 
 themselves, the nations of Europe, for the adjustment of their 
 own respective rights. As against the aborigines, it was 
 nothing; it gave no right. It has never been pretended as 
 giving the discoverer any right as against the Indians: unless 
 the exclusive right to acquire the title of the aborigines in 
 preference to and in exclusion of all other discoverers, be 
 a right against the Indians themselves. Did tliey lose their 
 sovereignty by conquest? Great Britain never maintained 
 such a pretension. On the contrary, she treated with them 
 as sovereigns, and left them in the undisturbed possession of 
 their lands and their laws, and the right of self-government. 
 But, under our constitution, who is to judge of the sove- 
 reignty of a Nation, with regard to its capacity to enter into 
 a treaty? The treaty making power is lodged with the Pre- 
 sident and Senate of the United States. The power of treat- 
 ing involves, of necessity, the power of deciding on the sove- 
 reign capacity of the other party to enter into such a com- 
 pact. But, in the present instance, this had been decided, 
 again and again, by the President and Senate of the United 
 States, the only tribunal to which our constitution refers the 
 decision of this questioii. They have decided it by making 
 and confirming many treaties with these people: treaties of 
 peace at the close of their wars — treaties t)f cession — treaties 
 regulating the intercourse between the contracting parties — 
 treaties, on the faith of which, those States, who were par- 
 ties to them through their regularly constituted organs, have 
 derived vast and most valuable acquisitions of territory.^- If 
 these compacts be not treaties, what are they? What name 
 can be given to them which will authorize either the United 
 States, or the States, individually, to violate them, at plea- 
 sure, consistently with the faith, justice and honor of this 
 country? 
 
 But if the right of conquest be still the ground of this pre- 
 tension, is this the time to assert it, or is one state of the 
 union the party to assert it? All pretensions of conquest have 
 been long since closed by treaties of peace and amity. On 
 the faith of these treaties, the Cherokee Nation is now in pro- 
 found peace with the United States, the only war making pow- 
 er under our constitution: and by tJiese treaties, they are left 
 and guaranteed in the possession of their remaining lands and 
 
24 
 
 their self-government. Wliat new right of conquest has 
 arisen? Has there been a fresh war? None is pretended. 
 What ground is there, then, for the pretension of any new 
 right of conquest? What offence has been given by the Che- 
 rokee people, to call up such a question? 
 
 They have, it seems, framed a constitution, modelled a 
 form of government, and made laws for themselves. But 
 what offence is there in this? Their right of self-government 
 was never before disputed: their mode of doing it, is, con- 
 sequently, a question lor themselves, alone. Why is it more 
 offensive in them to have a written, rational constitution and 
 laws, than to have them unwritten, barbarous, and resting in 
 tradition, which they have had, heretolbre, and which they 
 have constantly enforced without any objection from the 
 State of Georgia? 
 
 But there is something even yet more unjust and inhuman 
 •in this objection. We have been labouring, ever since the 
 adoption of our constitution, to civilize these people. All 
 the states, represented in the federal government, have push- 
 ed this subject of civilization, with all their power and at 
 great expense. We have sought to civilize and to chris- 
 tianize them, on the avowed motives of humanity to ilmn, 
 and safety to the neighbouring whites. With the Cherokees, 
 we have so far succeeded that they have adopted our man- 
 ners, our dress, our agricultural and mechanical pursuits ; 
 they have imitated our form of government, and our laws, 
 and Christianity, it is said, has made considerable progress 
 among them. And the result now is, that we have quarrelled 
 with our own success, and fallen out with this people for 
 yielding to our solicitations. For how was the civilization, 
 which we have been so long and so strenuously urging for- 
 ward, to shew itself, otherwise than by the very fruits it has 
 borne, and at vvhicii we now take oifeuce? Is it a crime or 
 offence in them to have yielded to our own exertions to ci- 
 vilize them ? If it be a crime or otfence in them, and furnish 
 even a pretext to strip them of their rights, who is to blame 
 for it? Would it not be most perlidious, and an offence on 
 our part that would "smell to Heaven," to have sought and 
 laboured at the civilization of these people for the last forty 
 years, and this, too, under the fair guise of humanity and re- 
 ligion^ nud the moment that we have accomplished this pur- 
 pose, to make that very civilization, which is our own work, 
 a ground of offence in these people, and an excuse for driv- 
 
25 
 
 ing them from tlieir possessions, or enslaving them on their 
 own territory. 
 
 What.treaty have they violated by their constitution and 
 laws ? No treaty had prescribed to them any form of self- 
 government. This matter was left wholly to themselves. 
 No treaty had prohibited them from making a government 
 and laws for themselves. On the direct contrary, the treaty 
 of 1817, founded on the previous conferences between the 
 President (Mr. Jefferson) and their nation in 1808--9, leaves 
 them in possession of their lands, for the express purpose of 
 '■'■engaging in the pursuits of agriculture and civilized life^'* 
 and " beginning tlie establishment of fixed laws and a regular 
 government. ^'^ And again the treaty of 1 81 9, in allusion to 
 these same measures, waives the delay of the census, for the 
 express purpose that the Cherokees may the sooner " com- 
 mence those measures which they deem necessary to the civili- 
 zation and preservation of their tribe.''"' In having established 
 a government and fixed laws, then, they have done no more 
 than the United States have, by their late treaties, acknowl- 
 edged their authority to do : and shall one of these states, 
 itself a party to these treaties, affect to take offence at pro- 
 ceedings which they have sanctioned by their own treaties ? 
 
 But these treaties furnish a still more weighty argument 
 against the authority^ of the state to interfere with the Che- 
 rokee laws, or to displace them by the laws of Georgia. 
 The right of the Cherokees to establish a government and 
 laws of their own, is here sanctioned and authorized by two 
 treaties made with the whole United States, the State of 
 Georgia being one of them. With these treaties still in force, 
 is it competent to the State of Georgia, alone, to destroy a 
 work which all the states have sanctioned and authorized by 
 solemn treaties ? Can one state revoke or violate a treaty 
 made by the whole.'' These treaties admit the right of the 
 Cherokees to establish a government and laws for them- 
 selves within their own territory. Georgia alone (herself one 
 of the parties to these treaties) now denies this right, and 
 makes it highly penal in the Cherokees either to obey or to 
 enforce their own laws. Thus, these treaties and the law 
 of Georgia are directly repugnant. Which shall stand ? The 
 Constitution of the United States answers this question. Trea- 
 ties are declared to form a part of the supreme law of the 
 land, and the constitution commands that "the Judges in 
 every state shall be bound thereby, any thing in the con- 
 4 
 
26 
 
 stitution or laws of any state, to the contrary, notwithstand- 
 ing." 
 
 But, il" their constitution and laws could be justly consid- 
 ered as offensive, who, under our constitution, has the right 
 to complain, and to punish these people for this transgres- 
 sion ? » 
 
 To Congress alone belongs the right to declare war, as 
 well as to regulate commerce, with the Indian tribes. Is 
 this consistent with a right in the rvsighbouring states to ex- 
 tinguish these tribes on the lands which they occupy ? For 
 the law which has been placed before me amounts to an ex- 
 tinguishment of them, as a tribe of Indians. Not only are 
 their own laws abolished by it, it being made highly penal 
 in them either to enforce or obey them, but the laws of the 
 state, exclusively, are extended over them, and what is still 
 worse, by the same law these oppressed people are stripped 
 even of the right of giving evidence in a court of justice 
 against their oppressors, which is the common privilege of 
 every citizen of Georgia, however humble, unprincipled or 
 despicable. While, then, the constitution, laws and treaties 
 of the United States acknowledge this tribe as a sovereign 
 nation, while Congress alone has the power to declare war 
 against them and to regulate commerce with them, and the 
 President and Senate, alone, have the power to treat with 
 them, while, by the second article of the treaty of Holston, 
 they are placed expressly " under tlie protection of the United 
 States y and of no other sovereign^'''' and while they are yet 
 holding their lands under the pledged faith of the United 
 States, given by that treaty, here is one of these same states 
 which claims the right of entering their territory by force, 
 of extinguishing the political existence of the whole tribe at 
 once, and forever, and, at the same time, of disfranchising 
 them even of one of the poorest and commonest privileges of 
 the humblest citizen of Georgia, that of giving evidence 
 in a court of justice against their oppressors ! 
 
 If these things are to be permitted, what becomes of the 
 stipulations of protection and guaranty, under the second and 
 seventh articles of the treaty of Holston .^ What becomes 
 of the good faith and honor of the United States. 
 
 Again: One of the conditions on which the State of Geor- 
 gia ceded her Western lands to the United States, in 1802, 
 was, that the latter would extinguish the Indian title to the 
 lands within her remaining limits, an soon as it could be done 
 
27 
 
 peaceably and on reasonable terms.'''' Here is an admission 
 of the existing title of these Indians, and an agreement that it 
 is to he extinguished by the United States: when and how? 
 as soon as it can be,f3one peaceablyltind on reasonable terms: 
 that is to say, that no force is to be employed in the case: 
 the Indians are, therefore, to be at liberty to cede these 
 lands or not, at their pleasure; and if they choose to cede 
 them, the terms shall be such as shall receive their assent. 
 The United States have gone on to redeem this pledge as fast 
 as the Indians have been disposed to cede. These people 
 are now disposed to cede no more of their lands, but to re- 
 tain such as are yet left to them. Can the State of Georgia 
 require the United States to compel these Indians to relin- 
 quish their lands ? Certainly not : for the express stipula- 
 tion is, that the extinguishment of title shall be peaceably 
 made, and on reasonable terms. Does it consist with the title 
 of the Indians, thus admitted, that the State of Georgia, her- 
 self, shall enter forcibly on their possessions, and drive them 
 out, at the point of the bayonet, or, what is the same thing, 
 potentially, that she shall put it to their option either to re- 
 move, or to remain and live in subjection and slavery to 
 Georgia, on so much of their own lands as she shall be pleas- 
 ed to assign to them.'' This question can admit of but one 
 answer. 
 
 It has been said that several other states of the Union 
 have legislated over the tribes of Indians within their char- 
 tered limits; and it is insisted, that the State of Georgia and 
 the ©ther states within whose boundaries the Cherokees 
 dwell, have the same right of legislation with regard to 
 them. 
 
 Before the authority of these precedents can be allowed 
 to establish the right of legislation in the present instance, it 
 will be necessary to enquire 
 
 1. Whether the tribes over which the other states have 
 thus legislated, were, at the time, acknowledged by the 
 United States to be sovereign nations, and were under the 
 protection of the United States by treaty, with a solemn gua- 
 ranty by treaty of the exclusive possession of their lands? 
 
 2. Whether such tribes were in full force and strength as 
 a nation, as the Cherokees now are, or whether they had 
 melted away to a few individuals, who had no fixed habita- 
 tion, but wandered about in the white settlements, begging z 
 subsistence from the charity of the whites? 
 
28 
 
 3. To what extent the legislation of the States was ex- 
 tended over them? whether it went to annhilate their own 
 laws, usages and institutions altogether, and to subject them 
 to the whole mass of State laws, civil and criminal? to extin- 
 guish their existence as a separate nation, and to blend them, 
 by force, completely with the whites, under the degrading 
 disability of giving evidence in a court of justice? In the 
 State of New York, one of the States whose example has 
 been quoted, all this has been disavowed. In a recent case 
 in that State (Goodell vs. Jackson, 20 Johnson's reports, 
 693 — decided in 1822) the highest court of that state have, 
 with one accord, pronounced the Indian tribes within the 
 State to be a separate people, alien and sovereign tribes, and 
 not citizens of the United States, not born nilhin the alle- 
 giance of the State, nor oxcing it allegiance, hat owing alle- 
 giance only, to their own tribe. 
 
 4. But, what is more important than all, it must be in- 
 quired whether the question of the right of these States to 
 legislate over the tribes within their chartered limits, has 
 been ever raised and decided by a competent tribunal, in fa- 
 vor of that right? or whether these ignorant and compaiative- 
 ly inipotent people (the Indians) have silently submitted to 
 this legislation, because unable to resist it by force, and too 
 poor and ignorant of their rights to submit it for decision to 
 an impartial and enlightened court of judicature? The fact 
 of the exercise of a power is no proof of its right. Instan- 
 ces of usurpation by the strong, over the weak, have abound- 
 ed in every age and every nation, but they have never been 
 considered as establishing the right of the usurper, or justi- 
 fying, by the precedent, a right of usurpation in others. Au- 
 gustus, at the close of those v/ars which made him the empe- 
 ror of Rome, turned out the peaceable land-holders of Italy, 
 from their possessions, and gave them to his victorious legions; 
 but the precedent has never been considered as establishing 
 the right aud justice of the procedure, or as worthy of imita- 
 tion by any just Prince or State. 
 
 On every ground of argument on which I have been 
 enabled by my own reflections, or the suggestions of others, 
 to consider tliis question, I am of the opinion. 
 
 1. That the Chcrokees area sovereign nation: and that 
 their having placed themselves under the protection of the 
 United States does not at all impair their sovereignty and 
 independence as a nation. " One community may be bound 
 
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 29 
 
 to another by a very unequal alliance, and still be a sovereign 
 State. Though a weak State, in order to provide for its 
 safety, should place itself under the protection of a more 
 poicerfiil one., yet according to Vattell (B. 1 Ch, 1,^5 and 
 6,) if it reserves to itself the right of governing its oicn 
 body it ought to be considered as an independent State.'''' 20 
 Johnson's Reports, 711, 712, Goodell vs. Jackson. 
 
 2. That the territory of the Cherokees is not within the 
 jurisdiction of the State of Georgia, but within the sole and 
 exclusive jurisdiction of the Cherokee nation. 
 
 3. That, consequently, the State of Georgia has no right 
 to extend her laws over that territory. 
 
 4. That, the law of Georgia which has been placed before 
 me, is unconstitutional and void. 1 . Because it is repugnant to 
 the treaties between the United States and the Cherokee 
 nation. 2. Because it is repugnant to a law of the United 
 States passed in 1802, entitled " an act to regulate trade and 
 intercourse with the Indian tribes, and to preserve peace on 
 the frontiers." 3. Because it is repugnant to the constitution, 
 inasmuch as it impairs the obligation of all the contracts ari- 
 sing under the treaties with the Cherokees: and affects, 
 moreover, to regvlate intercourse with an Indian tribe, a pow- 
 er which belongs, exclusively^ to Congress. 
 
 WM. WIRT. 
 Baltimore.) June 20th, 1830. 
 
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