Newspaper Page Text
# W'
HKaOKEE PHOENIX
$ibviua w,
ejjw aioaiaiPAs s
& INMANS’ADVOCATE.
kv, Asm i t assa,
HOTCS*!?} fi,
ilAAH BOUDINOT, Editor.
PIUNTKD WEEKLY B»
JOHN* CANDY,
:$250 if paid in advance, $3 m six
j, Sj or $8 50 if paid ai t he end of the
I subscribers who can readonly the
|,kee language the price w i 11 be $3,00
lance, or $2,50 to be paid n itliin lh<
lory subscription will be considered as
hued unless subscribers give notice to
fntrary before the commencement of a
[•car, and all arrearages paid.
I person procuring six subscribers
lecoming responsible for the pannent,
receive a seventh gratis.
►All letters addressed to the Editor,
paid, will receive due attention.
y t <r Jt v o* a .t d h 11 j n c 8 j
LVJIoS.l TAAI* JIiiTB A.l MAJ.
1.1 E aWiAMT KT.l D^P 0>eJB.I
li rerz TEjao-r* dojaada.i.
[ftP T.30-A TB D0JA*K»8.t, KT
f'OJB.I f«4<a-I DV.IAotEZ TB yvv
o-ya o$p oe.i n.i i»4<«a-
\yi o»G.it auOAaay, \vp*v* dy-q
l i*4»9.i t»»aB<r», tctz ej»o-<t» do o>
9.1. KT.1Z U^JP Gi»y T-r* 0«<MB
D0J.5.i>t v o?.I.
AGENTS.
William E. Holley, Maryville, E.
lessee.
\Q. William», Colossi*, NeivYrk.
nrade on th s subject, in Ihe follow
ing "oids:—“It is ordered by the
Court that the Clerk of the Court to
which any writ of error shall be di
reeled, may make return of the same
by transmitting a (rue copy of the re
cord, and of all proceedings in the
same, under his hand and the seal of
the Court.”
This has been done. But the sig
nature of the Judge has not been add
ed to that of the Clerk. The law
does not require it. The rule does
not require it.
In the case of Martin
erV* lessee, an exception
to the
Slat
vs. Hunt-
was taken
return of the refusal of the
State Court to enter a prior judgment
of leversal by this Court, because it
was not made by (ho judge of the
Slate Court to which the writ was
directed; but the exception was over
ruled, and the- return was deemed
sufficient. In Buel vs. Van Ness,f
also a writ oi eiror to a State Court,
Ihe record was authenticated in the
same manner. No exception was
aken to it. These were civil-cases.
But it has been truly said by the
bar, that, in regard to this process,
tbo law makes no distinction between
a criminal and civil case Tlu same
eturri is required in both. If the sane
ernment of the United Stales, for the
civilization and improvement of the
Indians; and that bis residence there
for this purpose, is the residence
charged in the aforesaid indict
ment: and this defendant further
saith, that this prosecution the State
of G!a. ought not to have or main
tain, because, he iaitli, that several
treaties, from line to time, been en
tered into belwern the United Stales
and the Cherokee nation of Indians,
to wit:—At Hqiewcll, on the 28th
day of November, 1785; at Ilolston,
on the 26ih diy of July, 1791; at
Philadelphia, m the 2tilh day of
Juno, 1794; at Pcllico, on the 2d day
of October, 17S8; at Tellico, on the
24th day of October, 1804; at Telli
co, on (he 25tl- day of October, 1805;
at VVasliington City, on the 27th day
ol January, 1605; at Washington city,
on the 22d day of March, G81G; at
the Chickasaw Council House, on
the 14th day of September, 1816; at
the Cherokee Agency, on the 8l!i day
of July, 1817; and at Washington city
on the 22d day of February, 1819;
all which treaties have been duly rat
ified by the Senate of the United
States of America; and, by which
treaties, the United States of Amer
ica, acknowledge the said Cherokee
NIE CHEROKEE CASE.
OPINION
\h* Supreme Court, delivered by
Jr. Chief Justice Marshall, Janu
Terra, 1832.
lA.YlUEI, a. WORCESTER,
rs
IHE STA'IK OF GEORGIA.
fliis cause in every point of view
lliicli it cau be placed is of the
Ipcst interest.
The defendant is r. Sta.e, omens-
[ofthe Union, which has exercised
I powers of goverume t over a Peo-
Jwho deny its jurisdiction, and are
pr the protection of the United
lies.
hie plaintiff is a citizen of the
lie of Vermont, condemned to hard
pr for four years in the penitentia-
Jof uuder colour of an
(winch he alleges to be rep“ KUa,,J
ltbe’ constitution, and laws,
of the United States.
Hio legislative power of a State,
controlling pouei of tbo constitu-
aiul laws of the United States,
rights, if they have any, the po-
|val existence of a once numerous
powerful People, the personal
erty of a citizen, are all involved
■the subject now to be considcr-
: behooves this Court, in everycaso,
especially in this, to examine io-
P’l jurisdiction with scrutinizing
os, before it proceeds to the exer-
I* of a power which is controvert-
Tho .first'.step in the performance
•bis duty is the inquiry whether
record is properly before the
nit.
If is certified by the Clerk of the
’urt which pro' ounced the jud<>-
ent of condemnation under which
1 plaintiff in error is imprisoned,
[d is also authenticated by the seal
the Court It is returned with,
"1 annexed to a writ of error issued
f egular form, the citation being
fniul by one of the Associate Jus-
es of the Supreme Court, and serv-
* 0, i the Governor and Attorney
'‘‘•eral of the State more than thir
ty* before the commencement of
le term to which the writ of error
jtt retui ruble.
’The Judicial net,* so far n9 it pre-
aHbes the mode of proceeding, ap-
p ar« -to have been literally pur-
iied
In February, 1797. n rolef was
lii^u of the Court could he uecessary Nation to he a Sovereign Nation, nu-
for the establishment of this position, : fhorized to govern themselves, and
ii has been silently given. ■ all. persons who have sottled within
McCulloh vs. tire State of Mary- their territory, free from any right
lawd-t ' vas a (am action, brought \ legislative interference by the sev-
to recover a penalty, and the record ora ^ States composing the United
was authenticated by the seal of the Slates of America, in reference to
Court and the signature of the Clerk, acts done within their territory; and,
without .hat of a Judge, Brown et "hicli treaties ihe whole of the ter-
al vs. the Slate of Maryland, was an r ' ,0, y no ' v occupied by the Cliero-
indictinent for a fine and forfeiture. i k ep Nation on the east of the Missis-
Tho record in this case, too, was au- I «'PP*» has been solemnly guarantied to
thenticated by the seal of the Court 1 ’hem; all of which ‘treaties are exist-
and the certificate of the Clerk. The : in g treaties at this day, and in full
practice is both ways. I force. By these treati s, and par-
TIip, record, thou, according to the ! ticularly by the treaties of Hopewell
Judiciary act. and the rule and prac- j nnrf Holstou, the aforeu«»icl territory is
lice of the Court, is regularly before ; acknowledged to lie without the juiis-
us. j diction of the several States com-
The more important inquiry ; 9| | posing the Union of the United States;
does it exhibit a case cognizable by a,u * 11 18 hereby especially stipi.lat-
this tribunal? jed, that ihe citizens of the United
The indictment charges the plain- i 8, 'all not enter the said terri-
tiff in error and others, being white j ,or y evpn on a vis,t ’ without a pass-
persons, with the offence of ‘residing 1 P 01 '* from ,hf! Governor of a State,
within the' limits of the CheroWH* na-' or f, ' on1 8 °P ,P Pnc du b’ authorized
tion without a liceuce,” and “without, tho,e ‘° bv 'he President of the Uni-
nav ;, IE ::ken the oath to support and ted Stal<,s 5 11,1 »hich will more fully
’ » . ~ .• „ • ; and at large appea", by reference to
d«,r.-.,d ,he Constitution ana latv, of| |he ni - ore ^ id U'ealic.
the Slate of Georgia.”
The defendant in the State Court
appeared in proper person, and fi'cd
the following plea:
“And the said Samuel A. Worces
ter, in his own proper pprson, comes
And this tie
femlani #itUl.i ; that the several arts
charged in the bill of indictment,
wore omitted to be done, if at all,
within the said territory so recogniz
ed as belonging (% Ihe said Nation,
IUI * III 1119 U " II V iriBVIl, . /* • I I || I, „
atuj snys, that this oourt o„ S l,t no. to, •«* •■>. *• ttfofo.atd, hold by thorn
tahe furthor oognizanoe uf the action l . l “. 6 ^. r "!!' ! '.. of ..'. 1 ! 0 T"' 1 ," 1 '
and prosecution aforesaid, becauso,
V'l^idal a 82, 85, v. 9 p. C4, C5.
t Wh. Itulcs,
he says, that on the 15tli day of July,
in the year 1831, ho was, and still
is, a resident in the Cherokee nation;
and that the said supposed crime or
dHures, and each ol them iv*re com
mitted, if committed at all, at the
town* of New Echota, in said Chero
kee nation, out of the jurisdiction of
this court, and not in (he county
Gwinnett, or elsewhere within the
jurisdiction of this court: Ami this
defendant saith, that he is a citizen of
the State of Vermont, one of the U-
nitod States of America, and that he
entered the aforesaid Cherokee na
tion, in the capacity of a duly author
ized missionary of the American
Board of Commissioners for Foreign
Missions, under the authority of the
President of the United Slates, and
has not since been required by him
to leave it: that he was, at tho lime
of bis arrest, engaged in preaching
Ihe Gospel to the Cherokee Indians,
and in translating the sacred Scrip
tures into their language, with the
permission and approval of the said
Cherokee nation, and in accordance
with the humane policy of the Gov
• l*t Wh. 304,
£4lh Wh. SI6.
301. f 8th Wh. 312.
States: that, for those acts, the de
fondant is not amenable to the laws
of Georgia, not the jurisdiction of
the Courts of said stale; and - that the
laws of Georgia, which profess to add
the said territory ttUhe several ad
jacent counties of too said Stale, and
to extend the laws of Georgia over
the said territory, and persons inhab
it mg the same; and, in particular,
the act on which this indictment rs.
this defendant is grounded,to wit:“ \u
act entitled an act to prevent the ex
orcise of assume!! & arbitrary power,
by all persons, under pretext of au
thority from tbe Cherokee Indians,
and their laws, and to prevent white
persons from residing within that part
of the chartered limits of Georgia,
occupied by the Cherokee Indians,
and to provide a guurd for the pro
tection of the gold mines, and to en
force tho laws of the Stato within
the aforesaid territory,” are repug
nant to the aforesaid treaties, which,
according to the Constitution of the
United States, compose a part of the
Supremo law of the land; and that
these laws of Georgia arc, therefore,
unconstitutional, and void, and of no
effect; that the said laws of Georgia
aro also unconstitutional nnd void,
bocause they impair tho obligation of
the various contracts formed by and
between tho aforesaid Cherokee
Nation, and the United States
of America, a3 above recited: also,
that the said laws of Georgia are un
constitutional and void, because they
interfere with, and attempt to regu
late end Control the intercourse with
the said Cherokee Nation, which, by
the said Constitution, beloi g exclu
sively to the Congress of the United
States; and b( cause the said laws are
repugnant to the Statute of the Uni-
te.d Slates, passed on fbe day
of March, 1802, entitled, "an act to
regulate trade ami intercourse with
the Indian tribes, and to preserve
peace on the frontiers: and that,
therefore, this court has no jurisdic
tion to cause this defendant to make
further or other answer the said bill of
indictment, or furthor to try and pun
ish this defendant for the said offence
or offences alledged in the said bill ->f
indictment, or any of them: And,
therefore, this defendant prays judg
ment whether he shall be held bound
to answer further to said indict
ment.”
This pica was overruled by the
Court. And the; prisoner being ;w -
raigned, pleaded not gii'lty. The
jury found a verdict against him, and
the Court sentenced him to hard la
bor hi the penitentiary, for the tern,
of foui years.
By overruling this plon, the court
decided that the matter it contained
was not a bar to the action. Tin-
plea, therefore, must be examined for
the purpose of determining whether
it makes n case which brings (In
party w ithin the provisions of the 25ih
section ol the “Act to establish the
judicial courts of the United Slates.”
The plea avers that residence,
charged in the indictment, was under
the nuthorit) ol the President ol the
U. S. an:l with the pennis si on and
approval of the Cheiokee nation.—
Iliac Hi. t.I..:.,hr-iivnen
ihe United States and (lie Chcroki cs.
acknowledged their light as a sove
reign nation to go'.ern themselves and
all persons who have settled within
their territory, free from any t ght of|
legislative interference by the several
Stales composing the United State*
of Arnciica. Thai the net under
which the prosecution was instituted,
is repugnant to the said Un ities, and
is, therefore, unconsiitutiun;.! and
void. That the said act is, also, un
constitutional; because it interferes
with, and attempts to regulate and
control, the intercourse with the
Cherokee nation, which belongs, ex
clusively, to Congress; and, because,
also, it is repugnant to tbo statute of
the United States, entitled “An act
to regulate trade and intercourse
with the Indian trihos, and to pre
serve peace on the frontiers.”
Let the nvci inriUa »»<’ di<« ploo l>»
compared will) (lie 25th section of
the judicial Act.
That section enumerates the cases
in which tho final judgment or decree
of a State Court , may bn revised in
the Supi’sme Court ot the United.
States. These aro, “where is drawn
in question tho validity ol a treaty, or
statute of, or an authority exorcised
under the United States- and the de
cision is against their validity; or
Vlicra is drawn in question the valid
ity of the statute of, or an authority
exercised under, any State, on the
ground of their being repugnant to
iho Constitution, treaties, or laws of
the United Status, nnd the decision is
iu favor of fucli their-validity; or
where is drawn in question tho eon
strnction of any clause of the Consti
tution, or of a statute of, or an aw
thorily exercised under, any State,
on the ground of their being repug
nant to the Constitution, treaties, or
statute of, or commission ln^ un
der, the United-Stnles, ami de
cision is against the title, right, priv
ileges, or exemption, specially s«t
up or claimed by cither party, under
•uch clause of the said Constitution,
treaty, statute, or commission.”
The indictment and pica, in (hi#
case, draw in question, we think the
validity of the treaties made by the
United States with tho Cherokee In- -
dians.' If not so, their construction is
certainly drawn in question; and the
decision has been, if net against their
validity—“against the right, privK
lege, or exemption, specially set up
ond claimed under them!” They
also draw into question the validity of^
a Statute of the Slate of Georgia,
on the ground ol its being repugnant
to (he Constitution, treaties, and
laws of the United States, and the de-
cisinn is in lavor of its validity.”
It is, then, we think, too clear for
cont i overs}, that the act of Congress,
by which this Court is constituted,
has given it the power, and, ofcomse,
imposed on it the duly, of exercising
jurisdiction in this case. This duty,
however unpleasant, cannot be avoid-’
ed. Those who fill the judicial de
partment have no discj( lion j n select-
irg subjects to be brought before
’hem. be must examine the de
fence set up in this pie*. \V<* must
inquire ami decide- whether »he act
T Georgia, under which the plaintiff’
in error has been prosecuted and < < u-
<iemned,be consitent with, or re pug-
•milt to, the Constitution, Ians, and
l eaties of the United States.
It has been said ai the. bar, ti nt
ihe acta of the Legislature ol Gi or-
^ia seize on the w hole Choicktt,-enriv
try, parcel it out among the neighbor
ing counties of tin Sta r, eSir.i’.d l-.er
code over the whole t ommy, .bobsli
its institutions and i's Inc. s , * app
dilate its political (\\istcn c.
If this be the genetal »-|Teet of ’ '
system, let us inquire into the t*
of the particular statute and sr, t,
on which the indictment is Lur
•d.
It enacts, that “all w'
residing wit Inn
V. licru
th
V
nf^ March next, or «l any
theicnftor wo hoot a license oi • : r~
mil from bis Excellency the. G» jV -i -
nor, or from ..uch agent as his . -
iemy the Governor siiail author n o»
grant such permit or license, nd
who shall not have taken the o h
hereinafter required, shall be guilty
of a high misdemeanor, and upon con
viction thereof, shall be punished by '
confinement to the penitentiaty, at
herd labor, for a term not less than
four years.”
'l’lie 11th section authoiizcs tho
Governor, “should hi (h em it ne.es-
sary (or (he protection of the mines,^
ortho enforcement of the laws in
force within 111, Cherckee Nation,,
to raise and organize a guard,'"' 11
Su\
The 13th section ennets, “that the *
said an a rd, or nnv member of th* •*.,
shidl bo, ami they are hereby, ;>i ti•< •-
izcd anil empowered m ;u r > y
person legally charged wi>!» oi
tec ted in u violation of i lie laws if
(his Slate, and to eoqvey. .ts s<-on as
practicable, the person so ; ei id,
before a justice of the peace <!.;•?
of the superior, or justice of inferior'*
couit of this State, to be dealt with-,
according to law.”
The extra territorial power of cr-‘
cy Legislature being limited in Usr
action, to Us own citizens «r subjects,
the very passage of this act is an as
sertion of jurisdiction over the Orco-
kee Nation, and of the rights and pow
ers consequent on jurisdiction.
The first stop, then, in ihe mq irv
which the ronstiftition and laws in*-
jnise on this Court, is an exhmiuatrhti
of the right fulness of this claim. »
America, separated from Europtsf
by a wide ocean,.was inhabitvvi |)y
distinct People, diviclod itvtpsepM^tfe
nations, independainf of each olh^i nnd
of (he rest of the world. h*vTne; insti
tutions of their own, l'"jd giver ing
hcmselves iiy iheir op'.laws 1’ it
fourth