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generally, but it afterwards came to be questioned what power the government of the United States or Congress could exercise over such Indians. This matter came up in United States v. Kagama, 118 U. S. 375 (1885). The whole subject there was fully reviewed, and the proposition finally established that while the government of the United States has recognized in the Indian tribes heretofore a state of semi-independence and pupilage, it has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress; they being within the geographical limit of the United States and being necessarily subject to the laws which Congress may enact for their protection and for the protection of the people with whom they come in contact. The States have no such power over them as long as they maintain their tribal relations.' This settled a difficult and vexatious question, and one very important to the Indians themselves as well as to the citizens of the United States who are brought in contact with them.” Miller, Const. of U. S. 401, 402, 403.

The Indian tribes have always been recognized as distinct communities, and have been permitted to a large extent to make and enforce the laws for their own government; but they are in no sense sovereign nations, and are, like all other communities within the territory of the United States, subject to the paramount authority of Congress, which may, in its discretion, assume such part of the government and control of any tribe as, in its judgment, is necessary or for the best interest of the members. Stephens v. Cherokee Nation, 174 U. S. 445, 488 (1898); United States v. Rogers, 4 Howard, 567, 572; United States v. Kagama, 118 U. S. 375, 379; Choctaw Nation v. United States, 119 U. S. 1, 27. See also Kent, Com., I, 297, note d, III, 381; Story, Com. on Const., I, ch. 5, § 454; Von Holst, Const. Hist. of U. S., I, 452 et seq.; Carson, Hist. Sup. Court, 267, 269, 642.

In Elk v. Wilkins, 112 U. S. 94 (1884), the Supreme Court of the United States held that an Indian born a member of one of the Indian tribes within the United States is not merely by reason of his birth, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the

Fourteenth Amendment, which provides that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. It was accordingly held by the court that an Indian plaintiff could not maintain an action against the defendant registrar for refusing to register him as a qualified voter. Further as to the legal status of tribal Indians, see Thayer, Cases on Constitutional Law, Parts I, II, pages 583-599, and

notes.

The power of the court to restrain a State from the exertion of physical force in the execution of an unconstitutional State law is referred to but was left undecided in Cherokee Nation v. Georgia. That the court cannot or will not exercise such a power, see Mississippi v. Johnson, 4 Wallace, 475 (1866); Marshall Memorial, I, pp. 1, li (Introduction); Carson, History Supreme Court, 629. "The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject," citing, inter alia, Cherokee Nation v. Georgia. Miller on Const. of U. S. 314, note; Carson, Hist. Supreme Court, 629; Langdon, Const. Hist. Supreme Court, 278, 279.

REFERENCES TO CHEROKEE NATION v. GEORGIA, IN MARSHALL MEMORIAL

Judge Wm. A. Ketcham, II, p. 294.

In the Cherokee Nation against Georgia, Marshall held that the Indians were not a foreign nation, and therefore not entitled to sue in the Supreme Court; and then, with his wonted felicity of phrase, he described them as a "domestic and dependent " nation dwelling within the boundaries of the United States and subject only to the laws and treaties of the central government a proposition capable of wide application, and carrying with it possibilities of a great extension of the National authority. Following out this principle in the case of Worcester against Georgia, he held that a citizen of the United States going into the Cherokee country could not be held amenable to the laws of Georgia. The administration was out of

sympathy with Marshall's views, the State of Georgia was openly defiant, yet after some months of delay the State gave way, the missionaries were released, and the court triumphed. Hon. Henry Cabot Lodge, II, 331.

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ADDITIONAL NOTE: The court triumphed not immediately and directly but in the long run by the general acceptance of its doctrines. Georgia, says Kennedy,' paid no respect to the decision of the Supreme Court. The judgment was treated as a nullity, and the missionaries were still retained in the penitentiary, until the Governor of Georgia thought proper to release them. The President of the United States gave but little hope of the favorable interference of the government. The Governor of Georgia is said to have declared that he would rather hang the missionaries than liberate them under the mandate of the Supreme Court. Nothing was left for the prisoners but to wait for a day of cooler judgment and more moderate counsels. After some eighteen months this day arrived. The contest had grown hopeless to the weaker party. The missionaries were released; and here ended this extraordinary chapter in the history of our free government."2

The immediate and direct effect, therefore, can scarcely be called a triumph for the Supreme Court. But this was probably owing to the well understood position of the President that he would not interfere. His reported saying has become famous: "Mr. Marshall has made the decision, now let him execute it."

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It will be noticed that the judgment of the Supreme Court was that the Georgia law under which Worcester was convicted was unconstitutional and void, and the judgment of the State court was accordingly "reversed

1 Life of Wirt, II, 323.

2 The release was not in obedience to the judgment of the Supreme Court, but by the action of the Governor upon the application of the missionaries to the pardoning power of the State. Benton, "Thirty Years' View," 1, 285.

3 Carson, History Supreme Court, 269. It may, perhaps, be doubted whether Corn Tassels, on his way to the gallows, or Wor cester, lying in prison for eighteen months after the decision of the Supreme Court, realized that the Supreme Court was the victorious, and Georgia the defeated, party.

and annulled" by the Supreme Court.' If the State court refused to recognize and obey the judgment of the Supreme Court and to release the prisoner, a remedy could, on his application, have been had by mandamus or habeas corpus issued by the proper Federal tribunal, and, if the execution of its judgment was resisted by the State authorities, the President of the United States, on due application to him, would be under the constitutional duty to "take care that the laws be faithfully executed." In such a case the President would, we think, have no right to say that he took an oath only to obey the Constitution as he understood it. So far as we are advised, no formal or official application to the President by the Federal court to enforce the release of Worcester from prison was presented or denied, and the President's remark above mentioned, though very characteristic, was, if made at all, merely a dictum.3

See text of judgment, 6 Peters, 596, 597.

2 See ante, p. 472.

3 The Legislature of Georgia had by resolution "authorized and required the Governor with all the force at his command to resist and repel any and every invasion, from whatever quarter, upon the administration of the criminal laws of this State," and "how far he should risk armed collision by the United States in the State of Georgia in enforcing judgment was," in the opinion of Langdon, "a prudential question, in respect to which it was his right and duty to exercise his own judgment." Langdon, Const. Hist. U. S. 285. See Ableman v. Booth, 21 How. 506, where in 1855, in a case where Booth was indicted and convicted in the United States court for Wisconsin, for aiding in the escape of a fugitive slave from the United States marshal and was discharged on habeas corpus by the State courts, the State authorities of Wisconsin, following the precedent in the Georgia case, practically nullified the decision of the Supreme Court of the United States reversing the decision of the Supreme Court of the State affirming the release of Booth on habeas corpus. "The action of the Wisconsin court," says Langdon, "practically and successfully nullified the authority of the United States Supreme Court, and was just as revolutionary as the similar action in the Georgia case. In both cases popular opinion defied the supreme law." Langdon, Const. Hist. U. S. 286, 287. See Commonwealth v. Dennison, 24 How. 66; Merryman's Case and action of Chief Justice Taney therein, Taney's Circuit Court Decisions, 246 (1861); Marshall Memorial, Introduction, I, p. li, note; Carson, Hist. Sup. Ct. 375-378

THE NATIONAL

AUTHORITY OVER INDIAN

TRIBES AS AGAINST THE STATES IS SU-
PREME AND EXCLUSIVE.

The general history and result of the next case - Worcester v. Georgia are given in connection with the case of the Cherokee Nation v. Georgia,' to which the reader is referred. Worcester's case was heard in the Supreme Court the next year after the preceding case was decided. It was argued in behalf of Worcester by Mr. Wirt and Mr. Sergeant; the State was not represented by counsel."

The following opinion of Chief Justice Marshall, written in his seventy-seventh year, is one of his most elaborate judgments, occupying over eighty pages in Peters' Reports. Mr. Justice Story's correspondence has preserved some interesting data and reminiscences concern

1 Ante, p. 655.

2 Ante, p. 665.

Mr. Justice Story thus writes to his wife under date, Washington, February 26, 1832, concerning the arguments in this case and the case itself: "We have had from Mr. Wirt and Mr. Sergeant, in the past week, some fine arguments in the Cherokee case, brought be fore us in a new form. Both of the speeches were very able, and Mr. Wirt's in particular was uncommonly eloquent, forcible and finished. They were on the side of the missionaries, and no person appeared for the State of Georgia. I confess that I blush for my country when I perceive that such legislation, destructive of all faith and honor towards the Indians, is suffered to pass with the silent approbation of the present government of the United States." Story, Life and Letters, II, 84. In a previous letter, January 13, 1852, to Mrs. Story, he uttered the same sentiments: "I never in my whole life was more affected by the consideration that they and all their race are destined to destruction. And I feel, as an American, disgraced by our gross violation of the public faith towards them." Id. 79.

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