1832.]

THE CHEROKEE CASE-CHIEF JUSTICE MARSHALL'S OPINION.

the other. To preclude forever all disputes, it is agreed that it shall be plainly marked by commissioners, to be appointed by each party; and, in order to extinguish forever all claim of the Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For this additional consideration, the Cherokees release all right to the ceded land forever.

By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them.

By the sixth article it is agreed on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade. No claim is made to the "management of all their affairs." The stipulation has already been explained. The observation may be repeated, that the stipulation is itself an admission of their right to make or refuse it.

By the seventh article, the United States solemnly guarantee to the Cherokee nation, all their lands not hereby ceded.

The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on their lands, or to enter their country without a passport.

231

the general words of the act comprehend them. Their advance in the "habits and arts of civilization," rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians in their country by giving them security at home.

The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States; and provide that all intercourse with them shall be carried on exclusively by the Government of the Union.

Is this the rightful exercise of power, or is it usurpation?

While these States were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our revolutionary struggle commenced, Congress was composed of an assemblage of deputies, acting under specific powers,granted by the Legislatures, or conventions of the several colonies. It was a great popular movement, not perfectly organized, nor were the respective powers of those who were intrusted with the management of affairs actually defined. The necessities of our situation produced a general conviction that those measures which concerned all, must be transacted by a body in which the representatives of all were assembled, and which could command the confidence of all: Congress, therefore, was considered as invested with all the powers of war and peace, and Congress dissolved our connexion with the mother country, and declared these United Colonies to be independent States. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several Courts of Europe; offered to negociate treaties with them, and did actually negociate treaties with France. From the same To the general pledge of protection have been added necessity, and on the same principles, Congress asseveral specific pledges, deemed valuable by the In-sumed the management of Indian affairs; first in the dians. Some of these restrain the citizens of the Unit-name of these United Colonies, and afterwards in the ed States from encroachments on the Cherokee country, and provide for the punishment of intruders.

The remaining articles are equal, and contain stipulations which would be made only with a nation admitted to be capable of governing itself.

This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self-government; thus guarantying their lands; assuming the duty of protection, and of course, pledging the faith of the United States for that protection, has been frequently renewed, and is now in full force.

From the commencement of our Government, Congress passed acts to regulate the trade and intercourse with the Indians, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifest-lations with Indian nations, as with those of Europe. ly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within these boundaries, which is not only acknowledged, but guarantied by the United States.

In 1819, Congress passed an act for promoting those humane designs of civilizing the neighboring Indians, which had long been cherished by the Executive. It enacts, "that for the purpose of providing against the further decline and final extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced, with their own consent, to employ capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing, and arithmetic; and for performing such other duties as may be enjoined, according to such instructions and rules as the President may give and prescribe for the regulation of their conduct in the discharge of their duties."

This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that

name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried on under the direction and with the forces of the United States, and the efforts to make peace by treaty were earnest and incessant. The Confederation found Congress in the exercise of the same powers of peace and war, in our reSuch was the state of things when the Confederation was adopted. That instrument surrendered the powers of peace and war to Congress, and prohibited them to the States, respectively, unless a State be actually invaded, "or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State,and the danger is so imminent as not to admit of delay till the United States in Congress assembled, can be consulted." This instrument also gave the United States in Congress assembled the sole and conclusive right of “regulating the trade and managing all the af. fairs with the Indians, not members of any of the States: Provided, that the legislative power of any State within its own limits be not infringed or violated."

The ambiguous phrases which follow the grant of power to the United States, was so construed by the States of North Carolina and Georgia as to annul the power itself. The discontent and confusion resulting from these conflicting claims, produced representations to Congress, which were referred to a committee, who made their report in 1787. The report does not assent to the construction of the two States, but recommends an accommodation, by liberal cessions of territory, or by an admission on their part, of the powers claimed by Congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on Congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several States, and with the Indian tribes. These pow

ers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this power, in the Confederation, are dis

carded.

feudatory States (says Vattel,) do not thereby cease to be sovereign and independent States, so long as self-government, and sovereign and independent authority is left in the administration of the State." At the present day, more than one State may be considered as holding its right of self-government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees them. selves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation is, by our constitution and laws vested in the Government of the United States. The act of the State of Georgia, under which the plaintiff in error was prosecuted, is conseqently void, and the judgment a nullity. Can this court revise and reverse it?

The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate, than the first discoverer of the coast of the particular region claimed: and this was a restriction which these European potentates imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to them means "a People distinct from others." The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those Powers If the objection to the system of legislation lately who are capable of making treaties. The words, adopted by the legislature of Georgia in relation to the "treaty" and "nation" are words of our own lan- Cherokee nation, was confined to its extra-territorial guage, selected in our diplomatic and legislative pro- | operation, the objection, though complete, so far as it ceedings, by ourselves, having each a definite and well respected mere right, would give this court no power understood meaning. We have applied them to Indians over the subject. But it goes much further. If the as we have applied them to the other nations of the review which has been taken be correct, and we think earth. They are applied to all in the same sense. it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the U. States.

They interfere forcibly with the relation established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the Government of the Union.

Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister States, and by the Government of the United States. Various acts of her Legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the universal conviction They are in direct hostility with treaties, repeated in that the Indian nations possessed a full right to the a succession of years, which mark out the boundary lands they occupied, until that right should be extin- that separates the Cherokee country from Georgia; guished by the U. States, with their consent; that their guarantee to them all the land within their boundary; territory was separated from that of any State within solemnly pledge the faith of the United States to re whose chartered limits they might reside, by a bounda- strain their citizens from trespassing on it; and recog ry line, established by treaties; that, within their boun-nize the pre-existing power of the nation to govern itdary, they possessed rights with which no State could self. interfere; and that the whole power, regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her new series of laws, manifesting her abandonment of these opinions, appears to have commenced in December 1828.

In opposition to this original right possessed by the undisputed occupants of every country, to this recognition of that right, which is evidenced by our history, in every change through which we have passed, is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others, whom he could not remove, and did not attempt to remove, and the cession made of his claims by the treaty of peace.

The actual state of things at the time, and all history since, explain these charters; and the King of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties, extending to them, first the protection of Great Britain, and afterwards, that of the United States. These articles are associated with others, recognizing their title to self-government. The very fact of repeated treaties with them recognizes it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence-its right to self-go. vernment-by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a State. Examples of this kind are not wanting in Europe. 'Tributary and

They are in equal hostility with the acts of Congress for regulating the intercourse and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation, with its permission, and by authority of the President of the United States, is also a violation of the acts which authorizes the Chief Magistrate to exercise this authority.

Will these powerful considerations avail the plaintiff in error? We think they will. He was seized and forcibly carried away while under the guardianship of treaties, guarantying the country in which he resided, and taking it under the protection of the United States. He was seized while performing, under the sanction of the Chief Magistrate of the Union, those duties which the humane policy adopted by Congress had recommended. He was apprehended, tried and condemned, under color of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court. It cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country.

It is the opinion of this court, that the judgment of the Superior Court, for the county of Gwinnett, in the State of Georgia, condemning Samuel A. Worcester to hard labor in the Penitentiary of the State of Georgia, for four years, was pronounced by that court under color of a law which is void, as being repugnant to the con

1832.]

PROCEEDINGS OF COUNCILS.

stitution, treaties, and laws of the United States, and counsel to whom the defence was formerly confided.
I am, most respectfully, your very ob't. serv't,
ought, therefore, to be reversed and annulled.

From the Philadelphia Gazette.
PROCEEDINGS OF COUNCILS.

Friday, April 6, 1832. SELECT COUNCIL.-The annexed communications from the Inspectors of the Eastern Penitentiary were received and referred to the Girard Committee.

Philadelphia, 5th April, 1832.

City Solicitor's Office, 3d April, 1832.
B. W. RICHARDS, Esq. Mayor, &c.

J. K. KANE.

Mr. JOHNSON presented the annexed petition relative to the Paving of Walnut street, which was referred to the Paving Committee.

To the Select and Common Councils of the City of Philadelphia.

The memorial of the subscribers respectfully represents, that they are the owners and occupants of proGentlemen:-I have been directed by the accompa-perty in the western part of this city; that such is the nying resolution, of the Board of Inspectors of the Eastern State Penitentiary of Pennsylvania, which was passed by an unanimous vote, to solicit the co-operation of the Select and Common Councils, in measures for the prevention of a nuisance, by the establishment of a Poudrette between the Penitentiary and the site of the proposed College, to be erected under the Will of Mr. Girard, and which it is presumed will be greatly injurious to each institution. I, therefore, respectfully suggest the propriety of appointing a committee of your bodies, to concert the proper measures to be adopted in conjunction with our Board.

With great respect, your ob't serv't,

CHAS. S. COXE, President of the
Bd. Insp'rs. E. State Penn'a.
To the Presidents of the Select and Com-
mon Councils of Philadelphia.

Wednesday, April 4, 1832. Whereas, the Board of Health have taken a lot of about ten acres, for the purpose of depositing the filth of the privies of the city and liberties of Philadelphia, and are now engaged in digging pits, within 30 feet of this Penitentiary, and whereas, the members of the Board of Inspectors, regard the said deposit of filth as highly injurious to the comfort and health of the prison

ers, therefore

present state of the streets that several of them are to-
tally impassable, particularly Walnut street from
Schuylkill Seventh street, to Schuylkill Front street;
Your memorialists believe that there is
some parts of which cannot be passed without danger
on horseback.
not another city in the Union, perhaps in the world,
where the streets are so bad along which so large a
quantity of heavy materials is daily being conveyed. So
greatly unequal to the travelling and conveyance of
goods to and from the western part of the city, are the
few streets already paved, that several of them have
had large portions re-paved several times within a very
few years; and now Spruce street, the only practicable
communication with the south western part of the city,
is in want of extensive repairs.

The trade of the river Schuylkill is increasing with great rapidity; it is expected that during the present season, the quantity of coal alone will be increased 50 per cent.-the neighborhood of Walnut street is the centre of landing for the largest portion of this indispensable article; yet strange as it may appear, no number of horses, however great, could draw a single ton into the city, along that street at this time; so that while article must reach its place of destination by a circuitthe other streets shall be undergoing repairs every ous route, and a proportionable increased expense be paid for the conveyance. Moreover, the want of practicable communication with the western part of the city has prevented and will continue to prevent, improvement in that direction until the evil shall have been remedied.

Resolved, that the President of the Board be request ed to communicate to Councils, on the subject of the nuisance expected to ensue from the Poudrette lot occupied by the Board of Health; and solicit the co-operation of Councils for the prevention of the same, it being equally injurious to the site of the Girard College. Resolved, that the President of the Board be request-provements in the Northern Liberties, Penn Township, ed to prepare a memorial to the Legislature, praying for a law to prevent the anticipated nuisance.

Extract from the minutes of the Board of Inspectors of the Eastern Penitentiary.

THOMAS BRADFORD, jr. Secretary.

The following letter from the Mayor, inclosing one from the City Solicitor was received, and was referred to the same committee.

MAYOR'S OFFICE, 2 Philadelphia, April 5, 1832. S To the Presidents of the Select and Common Councils. Gentlemen-By the enclosed note of the Solicitor, it will be seen that some authority is required to retain the professional service of counsel, in the defence of a suit in which the city has an interest, as the representative of Mr. Girard. I am, very respectfully your ob't. serv't,

B. W. RICHARDS.

Dear Sir-At the time of Mr. Girard's death, a suit was pending against him in the District Court for the city and county of Philadelphia, for the possession of a lot of ground on Fifth street; and I have received notice of an application to substitute the city as defendant in his place.

The suit being now nearly ready for trial, I submit to you the propriety of retaining on behalf of the city, the .30 VOL. IX.

One consequence of the want of pavements in the western portion of the city has been to encourage im

and judicious policy has been pursued by keeping the Southwark, and Moyamensing, where a more liberal couraging building where it could be done with the cerpavements in advance of the improvements, and thus intainty of having the houses advantageously occupied.

Another evil produced to the city by this narrow policy, has been to enable the holders of ground fronting on the paved streets, to demand and receive an exhorbitant price for it, as no person will erect a valuable house which cannot be approached on foot during wet weather or muddy roads.

In short, your memorialists are firmly persuaded, that sound policy requires that every street in the city which communicates with the river Schuylkill, should be paved with the least possible delay, particularly those where the greatest quantity of business is done on their wharves or neighborhood, among which Walnut street holds a conspicuous place. They therefore pray that you will cause Walnut street to be paved from Schuylkill Seventh, to Front strect, during the present season.

March 14th, 1832.

Mr. GROVES presented a petition praying that Race street between 6th and 7th streets, be re-paved, and was referred to the Paving Committee.

Mr. WORRELL presented a petition praying that Juniper street be paved, and was referred to the same Committee.

Girardville, January 10th, 1832.

Mr. MASSEY presented the following communication road on Shanandoa. The fact is I can open coal in ma from Mr. William Boyd, Agent for the late Mr. Girard. ny places on said lands, near Mahonoy and Shanandoa creek. To the Select and Common Councils of Philadelphia. Signed, PETER CALEY, jr. (Signature.) Gentlemen-Being agent and manager on the lands of the late Stephen Girard, Esq. in Schuylkill county, (by his appointment) and as those lands, by the will of the late S. Girard fall to you, in trust for the city of Philadelphia, I deem it my duty to make you acquainted with the situation of them, and the improvements thereon, and will give any information I possess relating to said property (if required.) I would suggest to you the propriety of appointing a committee to view the premises, and report to you on that subject, with power to make (and authorize contracts to be made) on said lands, (if they thought proper for the benefit of said improvements.) herewith hand you a statement of the improvements made under my direction, and by the advice of Mr. Girard on said lands-the correspondence between Mr. Girard and myself will be handed to you, if required; and any other information I possess, relating to said lands, will be given.

Respectfully your ob't. serv't,

Philadelphia, April 6th, 1832.

WILLIAM BOYD.

I certify that I opened a vein of coal about 100 rods above the mouth of the Shanandoa, running near east and west, pitching south, 17 feet thick from upper to the under slate; coal, good quality of anthracite; may be tunnelled from the foot of the hill about 5 rods from where I opened it, the coal will be easily mined. The Danville and Pottsville railway will pass through said coal vein. This vein is 20 rods from Mahonoy creek. I have been at, and examined another large vein of coal on the line of said rail-road, about 1 miles further up Mahonoy creek, (north side of said creek.) This vein pitches north, when opened will be an excellent quality of coal. The coal at said place is near the surface of the ground-both of said veins are on the lands of the late Stephen Girard of Philadelphia, deceased, and were opened under the direction of his agent, William Boyd. Witness my hand, this 9th day of February, 1832. ELIAS REES.

By a letter from my brother since I came to this city, Improvements on the Lands of the late Stephen Girard, I learn that six other coal veins have been opened on

Esq. in Schuylkill county, viz:

Two Saw-mills on Mahonoy creek, built under the direction of William Boyd, (Agent for S. Girard;) one of said mills in full operation, and about 100,000 feet of white pine (inch) boards cut and piled, at said mill; the other mill on Mahonoy not finished, for want of the dam being completed, when I left the works; one frame house built at Girardville, for the accommodation of the workmen.

One other Saw-mill built on the Shanandoa creek, 100,000 feet of white pine boards sawed and piled at said mill. The three mills above named, are within (the furthest) 80 rods of the line of the Danville and Pottsville Rail-road. There is an old Saw-mill further up Shanandoa creek about 2 miles, out of order, built by a Mr. Boon previous to Mr. Girard's purchase. This mill can be put in order to do a tolerable business; fine timber near said old mill, viz. white pine, poplar and oak. On the waters of the Catawissa creek, there are erected

2 Grist-mills, both want repairing.

5 Saw-mills, all out of order, and need repair. 8 Tenant houses, tenants all warned out.

600 acres cleared land, part thereof in a tolerable state of cultivation-much wanting to be done there.

The within property will be productive to the city, if put in such order as Mr. Girard designed to have done: his verbal instructions to me were unlimited as to improving these lands, and his anxiety great, as to the improvement of his Schuylkill county lands, as may clearly be seen from the letter directed to me from him, on that subject. WILLIAM BOYD.

Philadelphia, April 6th, 1832.

December 20th, 1832.

I have opened 5 coal mines on the Mahonoy and Shanandoa lands of Stephen Girard, late of Philadelphia, deceased, for his agent William Boyd, viz.

Mr. Girard's Schuylkill county lands, since I left Gi-
rardville. Previous to my leaving, I had pointed out
three places on the line of the D. and P. rail-road
to be opened in my absence: coal is found in each
place.
April 6th, 1832.

WILLIAM BOYD.

Mr. MASSEY offered the annexed resolution which was agreed to by the Select Council, and Messrs. Lippincott and Groves were appointed the committee, but the Common Council adjourned before taking the question on the subject.

Resolved, by the Select and Common Councils, that a committee of two members of each Council be appointed on the communication of William Boyd, agent of the late Stephen Girard, for lands held by him in Schuylkill county, with authority to visit the lands, and to make such inquiries as they may deem expedient, and report the result to Councils.

Mr. DUANE presented two copies of the bills passed by the Legislature, relative to carrying into effect the will of the late Stephen Girard, which were referred to the Girard Committee.

lowing resolution which was adopted by both Councils.

COMMON COUNCIL.-Mr. FRITZ offered the fol

Resolved, by the Select and Common Councils, that the Mayor be authorized to draw his warrant on the City Treasurer, in favor of William Jaggers, William Stokes, John Metzeker, Thomas Cooper, John Milliman, John M'Masters, William Ford, Casper Moffit, Peter R. Benner, John K. Murphy, George Sees, Hugh Pue, Samuel P. Garrigues, William M'Ginley, Jacob P. Wolfe, City Constables, for the sum of six dollars each, for services at the late Ward Election, and that the same be charged to appropriation No 21.

Mr. BAKER read an ordinance in his place relative to the footways in Fayette street, which was passed.

The following communication from the journeymen Cabinet Makers, was received, and referred to a joint committee of two members of each Council, and Messrs. Fritz, Wood, Worrell and Johnson were appointed the Committee.

Two on the north side of Shanandoa creek, about 2 miles from the north of said creek. Three on the south side of said creek, near the same distance from the mouth of said stream; said veins are, No. 1, extensive but not properly opened. No. 2, 17 feet from slate to To the Presidents of the Select and Common Councils of slate, first quality of anthracite. 3d vein, 18 feet solid coal, peacock appearance. 4th vein, excellent quality, the city of Philadelphia, Greeting: very extensive, may be 20 feet; my impression is, the Gentlemen-We beg leave to lay before you a revein is as large as any I have ever opened. I am open- solve of the Society of Journeymen Cabinet Makers of ing two other veins near Boon's saw-mill, 1 mile from this city, passed in their body on the evening of the 11th the rail-road, and about 64 from Pottsville. I know of of February, viz. That the Society cause to be manu2 coal veins yet to open within of a mile from the rail-factured in the civic procession, on the 22d day of Feb.