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respects defective in form, but the point just mentioned was the one upon which the decision was given.

Although it is certainly much to be regretted, that a case of this importance should have been decided upon any other principle than that of doing substantial justice between the parties, we were, nevertheless, by no means unprepared for this result, or very greatly disappointed when it happened. The forms of proceedings at law are so complicated and uncertain, that when a case is at all out of the common routine of practice, it is a matter of chance rather than skill, whether the shape in which it is first presented, be or be not unexceptionable. This particular case was one of very great difficulty; the Counsel had no precedents directly in point to guide them, and notwithstanding their acknowledged ability and diligence, it was perhaps hardly to be expected that they should completely succeed at the first trial. We had, in fact, anticipated some of the objections made by the Court to the form of the bill. We greatly doubted, in particular, whether the attempt to restrain a State by injunction, from enacting laws, for whatever purpose, would be within the competence of the Federal Courts. The Court, without directly deciding this point, distinctly intimate, that if they had had occasion to do so, they should have decided it in the negative. The bill,' says the Chief Justice, requires us to control the legislation of Georgia, and to restrain the execution (?) of its physical force. The propriety of such an interposition by the Court may well be questioned. It savors too much of exercise of political power, to be within the province of the Judicial department. But the opinion on the other point makes it unnecessary to decide this question.'

We were, therefore, prepared to hear, without much disappointment, that the case had gone off upon a point of mere form; but we confess that we were not prepared for the precise objection that was taken by the Court. With all our respect for the ability and learning of the members of this tribunal, and with every disposition to render the fullest justice to their integrity and independence, we are compelled to say, that this objection does not appear to us to be tenable. We are bound, perhaps, to suppose, that in differing from so high an authority, we must be mistaken. But as the case turns not on recondite points of law learning, but on the construction of a public document, which, as all admit, must be interpreted

without regard to technical niceties by the rules of plain common sense, we shall venture to state very briefly the grounds of our opinion. We do this, not for the purpose of creating discontent at the judgment of the Court, in which all the parties interested, and the people at large, will acquiesce with cheerfulness, but of lending such feeble aid as may be in our power, in the illustration of a most curious and important question of constitutional and international law.

The ground on which the case was decided, as our readers will perceive on recurring to the opinion of the Court, is simply this. The Cherokees come into Court, describing themselves as a foreign State, and claiming to be heard as such. The Court decide, for reasons alleged in the opinion, and without prejudging in any way the merits of the case, that they are not a foreign State, within the meaning of that phrase as used in the Constitution, and cannot of course be heard in that quality. We proceed to examine the validity of these

reasons.

We may remark, in the first place, that the Court admit very fully in the outset, that the Cherokees are a State ;that is, a distinct political society, recognised as such by the Government. The language of the opinion on this point is explicit.

'So much of the argument of the Counsel for the plaintiffs, as was intended to prove the character of the Cherokees as a State, as a distinct political society, separated from others, capable 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 the country. The numerous 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 Cherokees as a State, and the Courts are bound by these acts.'

The Cherokees are thus distinctly admitted to be a State; that is, a distinct political society. In making this admission, the Court appear to us to have given up in advance the only ground upon which it could be maintained, that they are not

acknowledgment a sovereign State, they are not foreign. They are clearly then within the letter of the Constitution. Are they also within its spirit and meaning, or is there something in the nature of their relations, as described by the Court, which tends to show, that, although the Indians come within the general description of foreigners, it was not intended by the framers of the Constitution, that they should enjoy the advantages secured to foreigners by the clause under consideration? On our view of the subject, the case is directly the reverse, The relation between the Indians and the United States, created by the circumstances mentioned in the opinion of the Court, is much more close than that which exists between the United States and any other foreign nation. A State, of which the territory is wholly surrounded by ours,-enclavé, in the French phrase, within our dominions,-which is connected by various political and personal relations of the most intimate character with the General and State Governments, and with the individual citizens, is of course much more likely to have occasion to take advantage of the faculty of suing in our courts, than those which are situated at a distance, and maintain with us much less intimate relations. Is it probable, then, that the framers of the Constitution, when they inserted a clause which gives to foreign States the right of suing in the Federal Court, intended to exclude those foreign States which would probably have the most frequent occasion to use it, and include those only which would have the least? We think not.

Again; if foreign States were not allowed to sue in the Federal Courts, they would be obliged to sue in those of the States; and the reason why the Constitution secures to them the privilege of suing in the Federal Courts is, that the Federal Government is the only representative of the nation for all its foreign relations. The administration of justice in the State Courts might not be uniform throughout the country, and it was proper that foreigners, in dealing with different individuals belonging to the same nation, should have the benefit of a uniform legislation. But this reason operates with as much force in regard to the Indians as to any other foreigners; and the fact, that the relations with them were committed exclusively to the management of the General Government, is a sufficient proof that such was the opinion of the framers of the Constitution. Indeed, the reason of the case in this view of it, as in the other, is not only equally strong, but much stronger

because in the clause of the Constitution, which authorizes Congress to regulate commerce, a distinction is expressly taken between foreign nations and Indian tribes. 'Congress shall have power to regulate commerce with foreign nations, among the States, and with the Indian tribes.'

As respects the 'peculiar and cardinal distinctions,' belonging to the relation between the Indians and the United States, we repeat what we have intimated above, that the circumstances here alluded to prove,-if they affect the argument at all,not that the Indians are not foreigners, but that they are not a State. That their territory is surrounded on all sides by ours; that we claim a right in fee in their lands, and only acknowledge in them a right of occupancy; that we should regard it as an act of hostility in any other nation to acquire their lands, or attempt to form a political connexion with them; that they look to our Government for protection, and address the President as their Great Father; that their relation to the United States resembles that of a ward to his guardian-these are all circumstances, which, so far as they bear upon the question, tend to show, that these people are not sovereign; that they are not a State. Such, accordingly, is the view taken of the matter, in the late opinion of the Convention of the Georgia Judges in the case of Tassel. It is there argued, that for reasons substantially the same with those here stated by the Court, the Cherokees are not a sovereign State. It does not seem to have occurred to the Georgia Judges, who were yet not remiss in seeking for arguments in defence of the pretensions of the State, that if the Cherokees were a State, it would be possible to deny them the character of a foreign State. The ground taken by the Georgia Judges, although we deem it untenable, seems to us more plausible than the one taken by the Supreme Court. But it is unnecessary for our present purpose to inquire, how far the peculiar relations existing between the United States and the Indians diminish the right of the latter to be styled and treated as a sovereign State, because this right is distinctly admitted by the Court. This being the case, their right to the qualification of foreign, with all its incidents, follows of course.

The peculiar character of the relations between the Indians and the United States, although it might with some plausibility be supposed to impair their claim to be considered a sovereign State, has therefore no tendency to show, that being by

acknowledgment a sovereign State, they are not foreign. They are clearly then within the letter of the Constitution. Are they also within its spirit and meaning, or is there something in the nature of their relations, as described by the Court, which tends to show, that, although the Indians come within. the general description of foreigners, it was not intended by the framers of the Constitution, that they should enjoy the advantages secured to foreigners by the clause under consideration? On our view of the subject, the case is directly the reverse, The relation between the Indians and the United States, created by the circumstances mentioned in the opinion of the Court, is much more close than that which exists between the United States and any other foreign nation. A State, of which the territory is wholly surrounded by ours,-enclavé, in the French phrase, within our dominions, which is connected by various political and personal relations of the most intimate character with the General and State Governments, and with the individual citizens, is of course much more likely to have occasion to take advantage of the faculty of suing in our courts, than those which are situated at a distance, and maintain with us much less intimate relations. Is it probable, then, that the framers of the Constitution, when they inserted a clause which gives to foreign States the right of suing in the Federal Court, intended to exclude those foreign States which would probably have the most frequent occasion to use it, and include those only which would have the least? We think not.

Again; if foreign States were not allowed to sue in the Federal Courts, they would be obliged to sue in those of the States; and the reason why the Constitution secures to them the privilege of suing in the Federal Courts is, that the Federal Government is the only representative of the nation for all its foreign relations. The administration of justice in the State Courts might not be uniform throughout the country, and it was proper that foreigners, in dealing with different individuals belonging to the same nation, should have the benefit of a uniform legislation. But this reason operates with as much force in regard to the Indians as to any other foreigners; and the fact, that the relations with them were committed exclusively to the management of the General Government, is a sufficient proof that such was the opinion of the framers of the Constitution. Indeed, the reason of the case in this view of it, as in the other, is not only equally strong, but much stronger

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