that the Indians possessed only a right of occupancy which was subject to the governmental control of the United States. The principles enunciated in this case have frequently been followed in later decisions of the Federal Courts.3 410. The State of Georgia and the Cherokee Nation; treaties between States and Indians.-The principal diference between the Indian tribes and foreign powers which was recognized before the Cherokee Nation cases were deJackson vs. Porter, U. S. Cir. | gress, all the country described by Ct. N. Y. 1825, 1 Paine, 457, the first section of the Act of THOMPSON, J. Held that the title June 30, 1834 (4 Stat. 729), as Inof an individual to a tract of land dian country; remains such only as under a grant made by Indians prior long as the Indians retain their to the British Treaty of Peace was title to the soil." void. The status of Indians and the effect of a deed given by them | Ct. App. 1891, 126 N. Y. 122, ANwas examined at length and the DREWS, J. (and see reference to this principles of Johnson vs. McIntosh, | case § 347 of ch. XI; affirming same were followed. Mitchel vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 711, BALDWIN, J. U. S. Sup. Ct. 1841, 15 Peters, 52, WAYNE, J. Seneca Nation vs. Christie, N. Y. case 49 Hun. 524, BRADLEY, J.) Writ of error to the Supreme Court dismissed 1896, 162 U. S. 283, FULLER, Ch. J. A full history is given in these opinions of the relations of the Seneca Indians with New York, Massachusetts and the United States. The principles laid The status and rights of Indians and of persons dealing with them under treaties and contracts executed prior to the cession of Flor-down in Johnson vs. McIntosh as to ida to the United States discussed, at length. Robinson vs. Caldwell, U. S. Cir. Ct. App. 9 Cir. 1895, 29 U. S. App. 468, GILBERT, J. "The absolute title to all lands in the Indian country is vested in the United States, subject only to the Indian right of possession, which the government has the absolute right to extinguish." The effect of the treaties with Great Britain and the Nez Perce Indians in regard to the disputed territory west of the Rocky Mountains discussed. Bates vs. Clark, U. S. Sup. Ct. 1877, 95 U. S. 204, MILLER, J. “In the absence of any different provision by treaty or by Act of Con title followed, and the relations of the colonies and States with the Indians also discussed. Fellows vs. Blacksmith, U. S. Sup. Ct. 1856, 19 How. 366, NELSON, J., affi'g Blacksmith vs. Fellows, N. Y. Ct. of Appeals, 1852, 7 N. Y. 401, Edmonds, J. Marsh vs. Brooks, U. S. Sup. Ct., 1850, 8 Howard, 223, and 1852, 14 Howard, 513, CATRON, J. Choctaw and Chickasaw Nations vs. United States, U. S. Ct. Claims, 1899, 34 Ct. Claims, 17, HowRY, J. United States vs. Cook, U. S. Sup. Ct. 1873, 19 Wall. 591, WAITE, CH. J. Jackson vs. Porter, U. S. C. C. Dist. N. Y. 1825, 1 Paine, 457, THOMPSON, J. cided, was that the United States owned the land which the Indian tribes occupied, thus exercising jurisdiction over it and the inhabitants, while there is no jurisdiction of any kind over any of the territory or inhabitants of foreign powers. When, however, controversies arose between the Cherokee Nation and the State of Georgia because the State attempted to enforce its State laws as to lands wholly within its own boundaries, but also within the territory over which the Cherokee Nation claimed exclusive jurisdiction pursuant to treaty stipulations, direct questions were raised as to the extent of the treaty-making power of the United States, and how far treaty stipulations made with Indian tribes were paramount to State legislation.1 The history of this controversy, which the Supreme Court was called upon to adjudicate during the administration of President Jackson is long and interesting; a full account of it will be found in Von Holst's Constitutional History, as well as in other detailed histories of the United States; President Jackson sympathized with the position taken by the State; and as Chief Justice Marshall took exactly the opposite view and expressed it very emphatically, personal feelings undoubtedly existed, which, while they did not affect the decision, were probably involved in the consideration of the questions which were submitted to the court, and in the action taken thereafter by the Executive Department of the Government.3 It is another strange fact that although the States of the Union could not exercise any treaty-making power with foreign states, or enter into compacts with each other, some of them did enter into treaties with Indian tribes within their own borders. The occasions were too few to establish legal precedents of importance as they are interesting, however, from an historical point of view some of them are referred to in the notes. The United States appears to have assented to these peculiar transactions. $410. These cases are discussed at length under the next two sections. 2 Chap. XI, vol. I. 4 Treaty between State of New York and the Mohawk Indians made March 29, 1797, with the sanction of the United States of Amer 8 See note 1 under § 413, p. 211, ica. 7 U. S. Stat. at L. p. 61. post. Articles of agreement between $411. Cherokee Nation vs. State of Georgia, 1831; status of Cherokee Nation in 1831.-The first point that was raised in the controversy was whether or not the Cherokees constituted a foreign State in the sense of that term as used in the Constitution. It was admitted that the tribes did not form a State of the Union, and the opinion declared the condition of the Indians, in their relation to the United States, to be, perhaps, unlike that of any other people in existence; in general, nations not owing a common allegiance are foreign to each other, and the term of foreign nation is strictly applicable by either to the other; the relations of the Indians. to the United States are marked by peculiar and cardinal distinctions which exist nowhere else. After reiterating the doctrine of occupation, practically as he had already announced it in Johnson vs. McIntosh, the Chief Justice declared that they can, perhaps, be denominated as domestic, dependent nations, occupying territory to which the United States asserts a title independent of their will, which must take effect in point of possession when their possession ceases; meanwhile they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian. After a further consideration of the subject, the opinion of the Court was that an Indian tribe or nation within the United States was not a foreign State in the sense of the Constitution, and could not, therefore, maintain an action in the Courts of the United States against one of the States. The question before the Court was solely that of jurisdiction and whether the Cherokee Nation could bring an action against the State of Georgia in the Federal Courts on questions based on State legislation in contravention of a treaty of Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, MARSHALL, Ch. J. the State of Georgia and the Creek Nation, January 8, 1821. 7 U. S. Stat. at L. p. 217. Treaties between the Seneca and Tuscarora Indians and Thomas Ludlow Ogden and Joseph Fellows, made under the authority of the United States, January 15, 1838, for the sale of lands. 7 U. S. Stat. at L. p. 557, and p. 559. § 411. 1 The Cherokee Nation vs. State As to the present status of the Cherokee Nation see Cherokee Nation vs. Southern Kansas Railway Co., U. S. Sup. Ct., 1890, 135 U. S. 641, HARLAN, J., and other cases in notes under § 416, p., 220, post. 28 Wheaton, 543; for extracts from opinion see note under § 409, pp. 204, et seq., ante. which had been formally executed by the President of the United States and ratified by the Senate, and under which the Cherokees had certain definite rights guaranteed to them as to territory wholly within the State of Georgia. The Court decided that it had no jurisdiction of the case as it had been presented; the following year, however, a case involving the rights of an individual was brought before the Court, of which it did take jurisdiction, and the same questions as to State and Federal power were once more raised, discussed, and this time they were decided upon the main issues.3 § 412. Worcester vs. State of Georgia; State laws in conflict with Indian treaties; Chief Justice Marshall's decision. -Under certain Cherokee treaties made prior to 1830, the exclusive jurisdiction over certain territory wholly within the State of Georgia was guaranteed to the Cherokees. Laws were passed by the State of Georgia requiring, and providing for, licenses to enter and occupy the territory; one Worcester, a missionary, was arrested for entering the territory and living therein, in violation of these State laws; he was arrested, tried and convicted by a State Court; he pleaded that he had entered the territory by the authority of the nation which had been exercised pursuant to treaty stipulations, and that the State law under which he was arrested was absolutely void as it was in contravention of some of the guarantees of the treaty.1 The case was argued on a writ of error; all the questions which were raised in Johnson vs. McIntosh 2 and the Cherokee Nation vs. Georgia were again presented and reargued before the Supreme Court; Chief Justice Marshall delivered the opinion. He held that the Supreme Court had jurisdiction, as the validity of a statute of the State of Georgia was drawn in question on the ground that it was repugnant to the Constitution, treaties and laws of the United States, and as the 3 See next section. § 412. 1 Worcester vs. State of Georgia, U. S. Sup. Ct. 1832, 6 Peters, 515. MARSHALL, Ch. J; for a list of the laws and treaties involved in this action, see the opinion at p. 537. 2 Johnson vs. McIntosh, U. S. Sup. Ct. 1823, 8 Wheaton, 543, MAR- 3 The Cherokee Nation vs. State of Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, MARSHALL, Ch. J. For extracts from opinions of these cases, see preceding sections and notes. decision of the State Court had been in favor of its validity the Supreme Court could review it; that the Indian Nations were distinct, independent political communities, retaining their original, natural rights as the undisputed possessors of the soil from time immemorial; that the term "nation" as generally applied to them meant a people distinct from others; further that the Constitution by declaring treaties already made, as well as those to be made, the supreme law of the land, had adopted and sanctioned the provisions of the treaties with the Indian nations and consequently admitted their rank among those powers which were capable of making treaties; the final adjudication as expressed in the syllabus on that point is as follows: "The words 'treaty' and 'nation' are words of our own language selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to the Indians as we have applied them to other nations of the earth; they are applied to all in the same sense." 413. Same case; Chief Justice Marshall and President Jackson. In regard to the relative effects of a treaty of the United States and a State statute, Chief Justice Marshall held that acts of the legislature of Georgia were void because they interfered forcibly with the relations established between the United States and the Cherokee Nation, the regulations of which, according to certain parts of our Constitution, were committed exclusively to the Government of the United States; and also because they were in direct hostility with the treaties, and in equal hostility with the acts regulating intercourse and giving effect to the treaties; the indictment thereunder was held to be null and of no effect and the court made a decree that the plaintiff was entitled to his writ of error and should be discharged from imprisonment. No effort was made on the part of the Executive department of the Government to enforce this decree, as President Jackson sympathized with the State officials of Georgia.1 § 413. 1 It is said that when President Jackson was told of this decision, he said: "Well, John Marshall has made his decision, now let him en force it;" when the mandate of the Supreme Court was issued, no effort was made by the executive department of the government to enforce it; Worcester was event |