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United States, can with strict accuracy be denominated foreign nations. They may more correctly perhaps be denominated domestic, dependent nations. They occupy a territory 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 pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its power, appeal to it for relief to their wants, and address 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 dominion 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.'


It is unnecessary, for our present purpose, to inquire,' says the writer in the North American Review, 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.' The right of the Indians to be styled and treated as a sovereign state, is nowhere admitted by the court, either distinctly or at all. Yet the assertion, that it is, is iterated shortly after in the words, 'being by acknowledgment a sovereign state.' That they are a state, is the whole that the court admit. As said before in the Review, the Cherokees are admitted in the most explicit terms, to be a state.' And again. The Cherokees are thus distinctly admitted to be a state.' These two last statements of admissions are correct. Thus much, the court admit, and no more. Let us attend to their words.



'Is the Cherokee nation,' asks the Chief Justice, a foreign state in the sense in which that term is used in the Constitution?

'The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument 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 uniformly been treated as a state, from the settlement of our country. The numerous 40


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 Court are bound by these acts.'

Every word in the opinion, of even so much as the least possible bearing on the point in question, has now been given; and from these alone must be found, if at all, the whole extent of the admission. It is what? The Cherokees are admitted to be what? A state; a distinct political society; separated from others; capable of managing its own affairs and governing itself; 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 of their community. This is all. Where is there one word about sovereignty? Substantially, the admission is nothing more, than that the Cherokees are a state; a distinct political society. That they are a sovereign state, the point now being examined, is so far from admitted, that it is precisely the point which is most sedulously and strenuously denied.

It is said, they admit their dependence and being under protection, that the United States alone may regulate their trade and manage all their affairs; and they are described as dependent and in pupilage, and, territorially, completely under the sovereignty and dominion of the United States. Stress is laid on their not being a sovereign state as on the main reason or most cardinal distinction for their not being a foreign one. If, then, the peculiar character of the relations between the Indians and the United States might, with some plausibility, be supposed to impair their claim to be considered a sovereign state,' as the reviewer, in so many words, admits that it might; just so far it impairs their claim to be considered a foreign state in the sense of the constitution.


The court finally remark, that at the time when the constitution was formed, the idea of appealing to an American court


of justice, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the govThis was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the Union.' But although, says the commentator we are considering, 'the state of civilization among the Indians at the time the constitution was framed, might have furnished a plausible reason for the omission of them in this enumeration, had they in fact been omitted, we cannot think that it furnishes any reason whatever for refusing to allow them the benefit of a clause, which is admitted to include them, according to the ordinary and usual acceptation of the terms.' We can make no such admissions. The pretence that it exists, grows out of the text, not of the opinion, but of the comment. 'In the general, that is,' says the reviewer, not generally, the synonyme used for it afterward by the court, for this would not answer his purpose of shaping a syllogism, but according to the ordinary use of language.' Now, as is said above, in connexion with the words, 'in the general,' (and the same is true of the substituted ones,) no admission whatever is made as to the Cherokees; the admission is only as to 'nations not owing a common allegiance.' The Indians are contended, in the opinion, to have in fact been omitted in the enumeration of the constitution, because, on account of their peculiar and cardinal relations to the United States, they constitute a particular not embraced or comprehended in the general term, but excepted therefrom. The habits and usages of the Indians, the reviewer concedes, might have furnished a plausible reason for the omission of them in this enumeration, had they in fact been omitted.'

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Now that such was the fact, the opinion further urges, (and wherefore not conclusively?) from a consideration of the eighth section of the first article, which empowers Congress to regulate commerce with foreign nations, among the several states, and with the Indian tribes.'


'In this clause,' say the court,' they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the several 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 distinguishing either of the others, be, in a 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 framing this article, the convention considered them as entirely distinct. We cannot assume that the distinction is lost in framing a subsequent article, unless there be something in its language to authorize the assumption.'

'The counsel for the plaintiffs contend, that the words “Indian tribes" were introduced into the article empowering Congress to regulate commerce, for the purpose of removing those doubts, in which the management of Indian affairs was involved by the language of the ninth article of the confederation. Intending to give the whole power of managing these affairs, to the Government about to be instituted, the convention confided it explicitly, and omitted those qualifications, which embarrassed the exercise of it as granted in the confederation. This may be admitted, without weakening the construction which has been intimated. Had the Indian tribes been foreign nations in the view of the convention, this exclusive power of regulating intercourse with them might have been, and most probably would have been, specifically given in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been empowered "to regulate commerce with foreign nations, including the Indian tribes, and among the several states." This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly.'

'It has been also said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument. Their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has various meanings, and the peculiar sense in which it is used in any sentence, is to be determined by the context. This may not be equally true with respect to proper names. Foreign nations is a general term, the application of which to Indian tribes, when used in the American constitution, is at best extremely questionable. In one article in which a power is given to be exercised in regard to for

eign nations generally, and to the Indian tribes particularly, they are mentioned as separate, in terms clearly contradistinguishing them from each other. We perceive plainly, that the constitution in this article does not comprehend the Indian tribes in the general term, foreign nations; not, we presume, because a tribe may not be a nation, but because it is not foreign to the United States. When afterwards, the term foreign state is introduced, we cannot impute to the convention the intention to desert its former meaning and to comprehend Indian tribes within it, unless the context forces that construction on us. We find nothing in the context, and nothing in the subject of the article, which leads to it.' Thus far the opinion.

'But the fact is,' says the comment, as the court themselves admit, that there was a particular reason for making a distinction in this clause, between foreign nations and the Indians, which (reason) does not hold in regard to other parts of the constitution.' This,' certainly the court say 'may be admitted,' and add, (without weakening the construction which has been intimated,) a consequence, which the opinion demonstrates to the full, and thus also answers succinctly the same objection --for it is nothing more—that is now re-urged by the Reviewer. What argument passes Mr. Wirt, susceptible of additional force? Neither he nor his distinguished colleague goes to the convention Journal on this subject, because conscious, perhaps, for the purposes of their argument, it had better be let alone. But the Reviewers refer to it, and with what advantage? 'On reference to the journal of the convention,' say, they, we find that the clause as originally reported, stood as follows: 'Congress shall have power to regulate commerce with foreign nations and among the several states.' The words, and with the Indian tribes, were afterwards added by way of additional security, in an amendment, and the form in which they were introduced, shows at once, why they were placed at the end, rather than the middle of the clause.' Grant that it does! It but shows then what is wholly immaterial. Of what consequence is it, where these words were placed in the clause, so long as they are placed in any part of it? Would not the contradistinction by the Chief Justice demonstrated, be as clear to the full, had they been placed at the beginning or middle, as it is now that they are found placed at the end. On the assumption that


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