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Cherokee Nation v. Georgia

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Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

Facts: The American Indians were not originally considered citizens of the US. Indians who chose to become citizens could not also remain formal members of their tribes. The relations among Indian tribes, states, and the federal government were unclear, but the federal government entered into treaties with the Indian tribes. Pursuant to various treaties with the US, the Cherokee Nation (P) had been allotted about 4 million acres within Georgia (D). Gold was discovered in the land and P declared itself an independent nation. D's legislature enacted "Indian laws," prohibited P's legislature and courts from meeting, divided P's lands under D's jurisdiction, and annulled P's "laws, usages and customs." D tried and convicted a Cherokee for murdering another Cherokee on P's reservation. The conviction was appealed to the US Supreme Court, which directed D to appear, but in response, D's governor ordered the immediate execution of the convicted man. After President Jackson denied to help P, P invoked the jurisdiction of the court as a foreign state, claiming D violated the Contract Clause by refusing to recognize the treaties between P and the US and seeking an injunction against enforcement of D's laws.

Issue: Are American Indian tribes foreign states that can invoke the original jurisdiction of the Supreme Court?

Holding: No. Claim dismissed.

Concurrence (Johnson): The Constitution refers to Indian tribes as such, and not as states or foreign states, which they are not. These tribes are simply wandering hordes without laws or government. The Constitution would not refer to them in direct contradistinction with foreign states if tribes were to be treated as foreign states. But more importantly, the question is a political issue over which the Court cannot take jurisdiction. It involves essentially a state of war, a contest for empire, an appeal to force and not laws. The Court cannot properly direct the executive to take a particular course of action when such policy judgments are involved as are present in this case.

Dissent (Thompson & Story): In the law of nations, every nation that governs itself without any dependence on a foreign state is a sovereign state, and its rights are the same as those of any other state. Even though P through the treaties bound itself to another, more powerful state, P retained its sovereign right to govern its own body and should be considered an independent state. The Court acknowledges that P is a sovereign state, but holds that P is simply not a foreign state under the Constitution. Instead of relying on the law of nations, which really does not apply here, the Court should examine the practice as though they are separate nations. The terminology used in the Commerce Clause should not be controlling because the Constitution uses several terms for foreign states, including "foreign nations" and "foreign powers." The Commerce Clause use may simply reflect an intent to cover tribes that might not be considered nations for some reason, or it could simply have mean the same thing as foreign nation. The Court should enjoin D, because its statues violate P's treaty rights.


  • The Indians have suffered continued erosion of their lands through successive treaties, and this suit is an attempt to preserve what remains. However, the Court has jurisdiction only if P is a foreign state in the constitutional sense.
  • P and the other tribes have been uniformly treated as states since the country was settled. They are not part of the union of states. Generally, nations that do not owe a common allegiance are foreign to each other, but the relationship of the Indians to the US is unique. The tribes reside within the boundaries of the US and are better characterized as "domestic dependent nations" than foreign nations. They are like wards with the US as their guardian.
  • The Constitution itself refers to Indian tribes separately from foreign nations and the several states. The Commerce Clause gives Congress power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Accordingly, an Indian tribe is not a foreign state and cannot bring suit as such.
  • An additional ground for declining jurisdiction in this case is the political nature of the issue, which would involve this Court in controlling the legislature of Georgia.
  • A year later, the court held that Georgia's laws were unconstitutional (Worcester v. Georgia 1832). However, the US subsequently forced the Cherokee tribes to relocate in Oklahoma anyway.

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