Original Treaties, by "THE SOLEMN GUARANTEE OF THE UNITED STATES"
were broken to steal land illegally in the establishment of America.
These documents, original agreements between settling peoples and native
peoples, are essential legal foundations of the United States, as is the
Declaration of Independence and the Bill of Rights. Our nation is
established physically and ethically upon land gained from the breaking
of our own law in such treaties. For example, the 1791 Treaty between
the U.S. and the Cherokee Nation reads: "to preclude FOREVER all
disputes"- so "there shall be PERPETUAL peace and friendship"-
"establishing PERMANENT peace"- Article VII: states: "The United States
SOLEMNLY guarantee to the Cherokee Nation, all their lands not hereby
ceded- As difficult as it is, there is no other truly just remedy for
this situation than for the United States to honor it's original
treaties as they were written. Or we are no better than conquering
barbarians, who keep goods stolen by force, a nation who does not keep
it's word, or obey it's own laws. I think a practical answer to this
great injustice is to find individual treaties with land boundaries that
are practical to restore, and over a long period of time return
individually titled lands to the ancestors of the rightful owners. For
example, Treaty with the Cherokee, 1791- a land area not that impossible
to foresee repurchasing over a century or two. Or, for example, the land
area guaranteed to the Nez Perce in the time of the great Chief Joseph.
Our only other option is to continue to ignore that our very nation
continues to remain on unjustly gained land.
Below is a condensed copy of the landmark precedent by the United
States Supreme Court in 1831 in the case of "Cherokee Nation v. Georgia"
The State of Georgia had
decided to ignore the 1791 Treaty, and take land sovereignly owned by
the Cherokee Nation. The Supreme Court here avoids the responsibility of
the United States to honor it's own treaties in war. This allows Georgia
to force the Cherokee Nation onto the "Trail Of Tears". Upon such
"legal" judgments the Original Treaties of the United States were
broken.
It is a loud ringing historical fact that the Liberty Bell was forever
cracked at Chief Justice John Marshall's funeral. His father was my
(eight-times-great)/Great-Grand-Father. (Through Frantz, Burkholder,
Rhoades, Smalley)
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Mr. Chief Justice Marshall delivered the opinion of the Court:
Cherokee Nation v. Georgia, 1831-
This bill is brought by the Cherokee nation, praying an
injunction to restrain the state of Georgia from the execution of
certain laws of that state, which, as is alleged, go directly to
annihilate the Cherokees as a political society, and to seize, for the
use of Georgia, the lands of the nation which have been assured to them
by the United States in solemn treaties repeatedly made and still in
force.
If courts were permitted to indulge their sympathies, a case better
calculated to excite them can scarcely be imagined. A people once
numerous, powerful, and truly independent, found by our ancestors in the
quiet and uncontrolled possession of an ample domain, gradually sinking
beneath our superior policy, our arts and our arms, have yielded their
lands by successive treaties, each of which contains a solemn guarantee
of the residue, until they retain no more of their formerly extensive
territory than is deemed necessary to their comfortable subsistence. To
preserve this remnant, the present application is made.
Has this court jurisdiction of the cause? The party defendant may
unquestionably be sued in this court. May the plaintiff sue in it? The
(Plaintiff's attorney's)argument was intended to prove the character of
the Cherokees as a state, as a distinct political society, separated
from others, capable of managing its own affairs and governing itself,
and has, in the opinion of a majority of the judges, been completely
successful. They have been uniformly treated as a state from the
settlement of our country. The numerous treaties made with them by the
United States recognize them as a people capable of maintaining the
relations
of peace and war, of being responsible in their political character for
any violation of their engagements, or for any aggression committed on
the citizens of the United States by any individual of their community.
Laws have been enacted in the spirit of these treaties. The acts of our
government plainly recognize the Cherokee nation as a state, and the
courts are bound by those acts.
A question of much more difficulty remains. Do
the Cherokee constitute a foreign state in the sense of the
constitution? The counsel have shown conclusively that they are not a
state of the union, and have insisted that individually they are aliens,
not owing allegiance to the United States. An aggregate of aliens
composing a state must, they say, be a foreign state. Each individual
being foreign, the whole must be foreign. This argument is imposing, but
we must examine it more closely before we yield to it. The condition of
the Indians in relation to the United States is perhaps unlike that of
any other two people in existence. In the general, nations not owing a
common allegiance are foreign to each other. The term foreign nation is,
with strict propriety, applicable by either to the other. But the
relation of the Indians to the United States is marked by peculiar and
cardinal distinctions which exist no where else. The Indian territory is
admitted to compose a part of the United States. In all our maps,
geographical treaties, histories, and laws, it is so considered. In all
our intercourse with foreign nations, in our commercial regulations, in
any attempt at intercourse between Indians and foreign nations, they are
considered as within the jurisdictional limits of the United States,
subject to many of those restraints which are imposed upon our own
citizens. They acknowledge themselves in their treaties to be under the
protection of the United States; they admit that the United States shall
have the sole and exclusive right of regulating the trade with them, and
managing all their affairs as they think proper; and the Cherokees in
particular were allowed by the treaty of Hopewell, which preceded the
constitution, "to send a deputy of their choice, whenever they think
fit, to congress." Treaties were made with some tribes by the state of
New York, under a then unsettled construction of the confederation, by
which they ceded all their lands to that state, taking back a limited
grant to themselves, in which they admit their dependence. Though the
Indians are acknowledged to have an unquestionable, and, heretofore,
unquestioned right to the lands they occupy, until that right shall be
extinguished by a voluntary cession to our government; yet it may well
be doubted whether those tribes which reside within the acknowledged
boundaries of the United States can, with strict accuracy, be
denominated foreign nations. They may, more correctly be denominated
domestic dependent nations.
They occupy a territory to which we assert a title independent of their
will, which must take effect in point of possession when their right of
possession ceases. Meanwhile, they are in a state of pupilage. Their
relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and
its power; appeal to it for relief to their wants; and address the
president as their great father.
They and their country are considered by foreign
nations, as well as by ourselves, as being so completely under the
sovereignty and dominion of the United States, that any attempt to
acquire their lands, or to form a political connexion with them, would
be considered by all as an invasion of our territory, and an act of
hostility. These considerations go far to support the opinion, that the
framers of our constitution had not the Indian tribes in view, when they
opened the courts of the union to controversies between a state or the
citizens thereof, and foreign states.
In considering this subject, the habits and usages of
the Indians, in their intercourse with their white neighbours, ought not
to be entirely disregarded. At the time the constitution was framed, the
idea of appealing to an American court of justice for an assertion of
right or a redress of wrong, had perhaps never entered the mind of an
Indian or of his tribe. Their appeal was to the tomahawk, or to the
government. This was well understood by the statesmen who framed the
constitution of the United States, and might furnish some reason for
omitting to enumerate them among the parties who might sue in the courts
of the union.
Be this as it may, the peculiar relations between the
United States and the Indians occupying our territory are such, that we
should feel much difficulty in considering them as designated by the
term foreign state, were there no other part of the constitution which
might shed light on the meaning of these words. But we think that in
construing them, considerable aid is furnished by that clause in the
eighth section of the third article; which empowers congress to
"regulate commerce with foreign nations, and among the several states,
and with the Indian tribes." In this clause they are as clearly
contradistinguished by a name appropriate to themselves, from foreign
nations, as from the several states composing the union. They are
designated by a distinct appellation; and as this appellation can be
applied to neither of the others, neither can the appellation
distinguishing either of the others be in fair construction applied to
them. The objects, to which the power of regulating commerce might be
directed, are divided into three distinct classes-foreign nations, the
several states, and Indian tribes. When forming this article, the
convention considered them as entirely distinct.
We cannot assume that the distinction was lost in
framing a subsequent article, unless there be something in its language
to authorize the assumption. The counsel for the plaintiffs contend that
the words "Indian tribes" were introduced into the article, empowering
congress to regulate commerce, for the purpose of removing those doubts
in which the management of Indian affairs was involved by the language
of the ninth article of the confederation. Intending to give the whole
power of managing those affairs to the government about to be
instituted, the convention conferred it explicitly; and omitted those
qualifications which embarrassed the exercise of it as granted in the
confederation. This may be admitted without weakening the construction
which has been intimated. Had the Indian tribes been foreign nations, in
the view of the convention; this exclusive power of regulating
intercourse with them might have been, and most probably would have
been, specifically given, in language indicating that idea, not in
language contradistinguishing them from foreign nations. Congress might
have been empowered "to regulate commerce with foreign nations,
including the Indian tribes, and among the several states." This
language would have suggested itself to statesmen who considered the
Indian tribes as foreign nations, and were yet desirous of mentioning
them particularly.
It has been also said, that the same words have not
necessarily the same meaning attached to them when found in different
parts of the same instrument: their meaning is controlled by the
context. This is undoubtedly true. In common language the same word has
various meanings, and the peculiar sense in which it is used in any
sentence is to be determined by the context. This may not be equally
true with respect to proper names. Foreign nations is a general term,
the application of which to Indian tribes, when used in the American
constitution, is at best extremely questionable. In one article in which
a power is given to be exercised in regard to foreign nations generally,
and to the Indian tribes particularly, they are mentioned as separate in
terms clearly contradistinguishing from each other. We perceive plainly
that the constitution in this article does not comprehend Indian tribes
in the general term "foreign nations," not we presume because a tribe
may not be a nation, but because it is not foreign to the United States.
When, afterwards, the term "foreign state" is introduced, we cannot
impute to the convention the intention to desert its former meaning, and
to comprehend Indian tribes within it, unless the context force that
construction on us. We find nothing in the context, and nothing in the
subject of the article, which leads to it.
The court has bestowed its best attention on this question, and, after
mature deliberation, the majority is of opinion that an Indian tribe or
nation within the United States is not a foreign state in the sense of
the constitution, and cannot maintain an action in the courts of the
United
States.
A serious additional objection exists to the jurisdiction of the
court. Is the matter of the. bill the proper subject for judicial
inquiry and decision? It seeks to restrain a state from the forcible
exercise of legislative power over a neighboring people asserting their
independence; their fight to which the state denies. On several of the
matters alleged in the bill, for example on the laws making it criminal
to exercise the usual powers of self-government in their own country by
the Cherokee nation, this court cannot interpose; at least in the form
in which those matters are presented. That part of the bill which
respects the land occupied by the Indians, and prays the aid of the
court to protect their possession, may be more doubtful. The mere
question of right might perhaps be decided by this court in a proper
case with proper parties. But the court is asked to do more than decide
on the title. The bill requires us to control the legislature of
Georgia, and to restrain the exertion of its physical force. The
propriety of such an interposition by the court may be well questioned.
It savors too much of the exercise of political power to be within the
proper province of the judicial department. But the opinion on the point
respecting parties makes it unnecessary to decide this question.
If it be true that the Cherokee nation have rights, this is not the
tribunal in which those rights are to be asserted. If it be true that
wrongs have been inflicted, and that still greater are to be
apprehended, this is not the tribunal which can redress the past or
prevent the future.
The motion for an injunction is denied. |