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the Indians were a foreign state, what occasion for these words at all?

Upwards of thirty years of preeminent judicial service, should commend the veteran Chief Justice to credit for 'sympathies' as enlightened as any, and an opinion of his, not permitting their indulgence, to candid consideration. Aspersed by a great statesman now no more, as amplifying jurisdiction; this case shows, he cannot do it even to amplify justice; and together with Burr's trials, the steamboat case, and the case of Marbury and Madison, abundantly evinces, how, with equal solicitude and firmness, he can exercise whatever jurisdiction the court has, and renounce whatever of jurisdiction it has not.


'So much of the argument,' says Chief Justice Marshall,' as was intended to prove the character of the Cherokees as a state, has, in the opinion of a majority of the judges, been completely successful.' But two of the judges urge pretty forcible reasons against even this position. I cannot but think,' says Mr. Justice Johnson, that there are strong reasons for doubting the applicability of the epithet, state, to a people so low in the grade of organized society as our Indian tribes most generally are.' These reasons are detailed at great length. 'It is clear,' he observes, 'that as a state, they are known to nobody on earth but ourselves, if to us. How then can they be said to be a member of the community of nations? Would any nation on earth treat with them as such? Suppose, from the banks of the Mississippi, or the sea coast of Florida, they had declared war and issued letters of marque and reprisal; would their commissions be respected?'

'Where is the rule to stop? Must every petty kraal of Indians, designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognised as a state? We should indeed force into the family of nations, a very numerous and very heterogeneous progeny. At what time did this people acquire the character of a state? Certainly not by the treaty of Hopewell; for every provision of that treaty operates to strip it of its sovereign attributes.'

'In one view and in one only, if at all, they are or may be deemed a state, though not a sovereign state, at least while they occupy a country within our limits. Their condition is something like that of the Israelites when inhabiting the desert.'

'Though without any absolute fee in land, their right of personal self-government has never been taken from them and such a form of government may exist, though the land occupied be in fact that of another. The right to expel them may exist in that other; and the alternative of departing and retaining the right of self-government, may exist in them; and such they certainly do possess.'

'But in no sense can they be deemed a foreign state under the judiciary article.'

'It does seem unnecessary on this point to do more than put the question, whether the makers of the constitution could have intended to designate them, when using the epithets "foreign and "state." State and foreign state, are used in contradistinction to each other. We had then just emerged, ourselves, from a situation having much stronger claims, than the Indians, for admission into the family of nations; and yet we were not admitted, until we had declared ourselves no longer provinces, but states, and shown some earnestness and capacity in asserting our claim to be enfranchised. Can it then be supposed, that, when using those terms, we meant to include any others than those who were admitted into the community of nations, of whom most notoriously the Indians were no part?'


'The argument is that they were states; and if not states of the Union, must be foreign states. But I think it very clear, that the constitution neither speaks of them as states or foreign states, but as, just what they were, Indian tribes; an anomaly unknown to the books that treat of states, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.' Mr. Justice Baldwin, ' in one question,' claims to stand alone.' But he is alone rather in view than result. He gives his reasons at length. My view of the plaintiffs' being a sovereign, independent nation or foreign state, within the meaning of the constitution, applies to all the tribes with whom the United States have held treaties: for if one is a foreign nation or state, all others in like condition must be in their aggregate capacity; and each of their subjects or citizens, aliens, capable of suing in the circuit courts. This case then is the case of the countless tribes, who occupy tracts of our vast domain; who in their


collective and individual characters, as states or aliens, will rush to the federal courts in endless controversies, growing out of the laws of the states or of Congress.'

'In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the proceedings of the old Congress, from the commencement of the Revolution up to the adoption of the constitution, so as to ascertain whether the Indians were considered and treated with as tribes of savages, or independent nations, foreign states on an equality with any other foreign state or nation; and whether Indian affairs were viewed as those of foreign nations; and in connexion with this view refer to the acts of the federal government on the subject.'

After extending this view with great clearness over more than six pages, he remarks, there can be no dependence so anti-national, or so utterly subversive of national existence, as transferring to a foreign government "the regulation and the management of all their affairs at its pleasure;" which was what the treaty of Hopewell transferred from the Indians to the United States.'



To correctly understand the constitution,' he insists, 'we must then read it with reference to this well known existing state of our relations with the Indians, the United States asserting the right of soil, sovereignty, and jurisdiction in full dominion; the Indians, occupants of allotted hunting grounds.'

Mr. Justice Baldwin draws a strong argument from a part of the constitution not commented upon by the other judges. 'I come to consider,' he says, 'the third clause of the second section of the first article of the constitution, which provides for the apportionment of representatives and direct taxes "among the several states which may be included within this Union, according to their respective numbers, excluding Indians not taxed." This clause embraces not only the old but the new states to be formed out of the territory of the United States, pursuant to the resolution and ordinances of the old Congress, and the conditions of the cession from the states, or which might arise by the division of the old. If the clause, excluding Indians not taxed, had not been inserted, or should be stricken out, the whole free Indian population of all the states would be included in the federal numbers coextensively with the boundaries of all the states included in this nation. The insertion of this clause con

veys a clear, definite declaration, that there were no independent. sovereign nations or states, foreign or domestic, within their boundaries, which should exclude them from the federal enumeration, or any bodies or communities within the states excluded from the action of the federal constitution, unless by the use of express words of exclusion.'

'The delegates, who represented the states in the convention, well knew the existing relations between the United States and the Indians, and put the constitution in a shape for adoption calculated to meet them and the words used in this clause exclude the existence of the plaintiffs as a sovereign or foreign state or nation, within the meaning of this section, too plainly to require illustration or argument.

'The third clause of the eighth section shows most distinctly the sense of the convention in authorizing Congress to regulate commerce with the Indian tribes. The character of the Indian communities had been settled by many years of uniform usage under the old government, characterized by the name of nations, towns, villages, tribes, head men, and warriors, as the writers of resolutions or treaties might fancy; governed by no settled rules, and applying the word nation to the Catawbas as well as the Cherokees. The framers of the Constitution have thought proper to define their meaning to be, that they were not foreign nations nor states of the Union, but Indian tribes; thus declaring the sense in which they should be considered under the constitution, which refers to them as tribes only, in this clause. I cannot strike these words from the book; or construe Indian tribes in this part of the constitution, to mean a sovereign state under the first clause of the second section of the third article. It would be taking very great liberty in the exposition of a fundamental law, to bring the Indians under the action of the legislative power as tribes, and of the judicial, as foreign states. The power conferred to regulate commerce with the Indian tribes, is the same given to the old Congress by the ninth article of the old confederation "to regulate trade with the Indians." The raising the word trade to the dignity of commerce, regulating it with Indians or Indian tribes, is only a change of words. Mere phraseology cannot make Indians, nations, or Indian tribes, foreign


'The second clause of the third section of the fourth article of 41



the constitution is equally convincing. The Congress shall have power to dispose of and make all needful regulations and rules respecting the territory of the United States.' What that territory was, the rights of soil, jurisdiction, and sovereignty claimed and exercised by the states and the old Congress, has been already seen. It extended to the formation of a government whose laws and process were in force within its whole extent, without a saving of Indian jurisdiction. It is the same power which was delegated to the old Congress, and, according to the judicial interpretation given by this court in Gibbons v. Ogden, 9 Wheaton, 209, the word to "regulate" implied in its nature full power over the thing to be regulated; it excludes necessarily the action of all others that would perform the same operation on the same thing. Applying this construction to commerce and territory, leaves the jurisdiction and sovereignty of the Indian tribes wholly out of the question. The power given in this clause is of the most plenary kind. Rules and regulations respecting the territory of the United States—they necessarily include complete jurisdiction. It was necessary to confer it without limitation, to enable the new government to redeem the pledge given by the old, in relation to the formation and powers of the new states. The saving of "the claims of any particular state," is almost a copy of a similar provision, part of the ninth article of the old confederation; thus delivering over to the new Congress the power to regulate commerce with the Indian tribes, and regulate the territory they occupied, as the old had done from the beginning of the Revolution.'

'The colonies, while dependent themselves on the crown, exercised all the rights of dominion and sovereignty over the territory occupied by the Indians; and this is the first assertion by them of rights as a foreign state within the limits of a state. If their (the states') jurisdiction within their boundaries has been unquestioned until this controversy; if rights have been exercised which are directly repugnant to those now claimed; the judicial power cannot divest the states of rights of sovereignty, and transfer them to the Indians, by decreeing them to be a nation or foreign state, preexisting and with rightful jurisdiction and sovereignty over the territory they occupy. Foreign states cannot be created by judicial construction; Indian sovereignty cannot be roused from its long slumber and awakened

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