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.' 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 8 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 § 414. General rules as to effect of Indian treaties and statutes, and the construction of Indian treaties. It is not necessary to quote further from the opinion in this case; the principles established by it have been followed by the Court, and, notwithstanding the fact that treaties are no longer made with Indians, the general rules promulgated in in this case, but which have been enlarged by decisions in other cases, a few of which are cited in the notes,1 can be stated as follows: First. So long as the practice of making treaties with the Indians was continued, the treaties became, when ratified by the Senate, the supreme law of the United States in the same manner as treaties with foreign powers became the supreme law, and treaties were made and ratified practically as were treaties with foreign powers.2 Second. That treaties made with Indian tribes, and statutes enacted by Congress in pursuance thereof to make ually released, but not until over 1 A few cases only are cited under this section, as it is intended to cover the subject in a very superficial manner. The digests should be referred to for the numerous cases affecting the construction of Indian treaties. 2 The Cherokee Nation cases; see §§ 410-412, ante; The Cherokee Tobacco, U. S. Sup. Ct. 1870, 11 Wall. 616, SWAYNE, J. United States vs. 43 Galls. of Whiskey, U. S. Sup. Ct. 1876, 93 U. S. 188, DAVIS, J. Same case, 1883, 108 U. S. 491, FIELD, J. Fellows vs. Blacksmith, U. S. Sup. Ct. 1856, 19 Howard, 366, NEL soN, J., affirming Blacksmith vs. Fellows, N. Y. Ct. of App. 1852, 7 N. Y. 401, EDMONDS, J. Negotiations with Indians and the effect of Indian treaties and the right of the Indians to make treaties is discussed in the opinion at length. Brown vs. United States, U. S. Ct. Claims, 1897, 32 Ct. Claims Reps. 432, Nott, J. United States vs. La Chappelle, U. S. Cir. Ct. Washington, 1897, 81 Fed. Rep. 152, HANdford, J. In this case an Indian agreement was held invalid on the ground that the alleged treaty was made by the chief, but that his tribe had refused to ratify it, and that therefore the land assumed to be ceded by the treaty had never become a part of the public domain of the United States. See also cases in Court of Claims cited in notes to § 417, pp. 223, et seq., post. the treaties effectual, are paramount and superior to the laws of any State which conflicted therewith, in the same manner as treaties and laws in pursuance thereof with foreign powers are superior to State laws, and that during the exist 8 Bell's Gap Railroad Co. vs. Pennsylvania, U. S. Sup. Ct. 1889, 134 U. S. 232, BRADLEY, J., affirmed as to the point that a provision in a State law for the assessment of a State tax upon the face value of bonds instead of their nominal value violates no provision of the Constitution of the United States. Brown vs. Brown, Sup. Ct. N. C., 1890, 106 N. C., 451, DAVIS, J. It was decided in this case how far a State may settle the boundary lines within their own limits or reservations under United States and Indian treaties. The particular line in this case is known as the Holston Treaty Line and is referred to in many Indian treaties affecting land in Georgia and the Carolinas. Buffalo P. & R. Co. vs. Lavery, Y. Y. Sup. Ct., 5 Department, 1894, 75 Hun. 396, BRADLEY, J. As stated in the syllabus; "It is not within the legislative power of the State of New York to empower Indian nations to make, or others to take from them, grants or leases of lands within Indian reservations. "It is only pursuant to the Federal authority that lands belonging to an Indian reservation can be granted or demised or acquired by conveyance or lease from an Indian nation." And that a law of the State of New York authorizing railroad companies to contract with Indians for the right to construct railroads over their lands is not within the legislative power of the state. Cutler vs. Dibble, U. S. Sup. Ct. 1858, 21 Howard, 366, GRIER, J., affirming s. c., N. Y. Ct. of App. 1857, 16 N. Y. 203, BROWN, J., also cited as State of New York vs. Dibble. A state statute preventing intrusions on Indian lands was held not to be in violation of the Constitution of the United States or the treaties between the United States and the Seneca Indians. Danforth vs. Thomas, U. S. Sup. Ct. 1816, 1 Wheaton, 155, TODD, J. Love vs. Pamplin, U. S. Cir. Ct. Tenn, 1884, 21 Fed. Rep. 755, MATTHEWS, J. Lowry vs. Weaver, U. S. Cir. Ct. Ind. 1846, 4 McLean, 82. Held that Indians living in a state and doing business as merchants are responsible by the laws of the state for the payment of their debts, notwithstanding treaty reservations, and that lands reserved to them under a treaty may, under some circumstances, be made responsible for the payment of their debts notwithstanding such stiputions. The New York Indians, U. S. Sup. Ct. 1866, 5 Wallace, 761, NELSON, J. The statute of a state authorizing the sale of lands for taxes laid by a State is void if it in any way conflicts with an Indian treaty, and that a sale under such tax is void so far as it affects the rights of the Indians to occupy the lands. Also the right of Indians to sell their lands discussed. Patterson vs. Jenks, U. S. Sup. Ct. 1829, 2 Peters, 216, MARSHALL, Ch. J. ence of the treaty all State legislation contravening such treaties is void unless enacted after statutes of the United States had nullified or modified the treaty.5 Third. That the rules applicable to the relative effect of treaties and statutes as they are generally stated in the preceding chapters are applicable alike to treaties with foreign powers and to treaties with Indians." Peck vs. Miami County Commis- See extracts under $379, p. 87, sioners, U. S. Cir. Ct. Kans. 1876, and § 386, p. 132, ante. 4 Dillon, 370, Fed. Cas. 10891, DILLON, J. Held that if an Indian had | parted with his lands they were subject to State taxation. Pennock vs. Franklin County Commissioners, U. S. Sup. Ct. 1888, 103 U. S. 44, FIELD, J. Distinguishing the Kansas Indian case. Preston vs. Browder, U. S. Sup. Ct., 1816, 1 Wheaton, 115, TODD, J. State ex rel. Tompton vs. Donoyer, Sup. Ct. N. Dak. 1897, 6 N. Dak. Rep. 586, BARTHOLOMEW, J. Stevens vs. Thatcher, Sup. Ct. Me. 1897, 91 Maine, 70, EMERY, J. In an action involving treaty rights of Indians on White Squaw Island in the Penobscot, Maine, it was claimed that provisions in the treaties debarred the legislature from including any of the Penobscot islands above Old Town within any incorporated town; it was held that this could not be sustained. Wagoner vs. Evans, U. S. Sup. Ct. 1898, 170 U. S. 588, SHIRAS, J. Power of Territory of Oklahoma to tax cattle grazing on Indian Territory sustained. Eastern Band of Cherokees vs. United States, U. S. Ct. Claims, 1885, 20 Ct. Claims, 449, RICHARDSON, Ch. J. (Affirmed sub nom. Cherokee Trust Funds, U. S. Sup. Ct., 1885, 117 U. S. 288, FIELD, J.) Article 8 of the syllabus is as follows: 66 "The Cherokee Nation, as litigants, have a right to stand upon their treaties in relation to the funds in suit and neither an Act of Congress nor the proceedings of the political departments of the government can take away their vested rights guaranteed by treaty." See also cases under § 418, p. 225, post, involving land grants to railroads and Indian treaties. Eells vs. Ross, U. S. Cir. Ct. App. 9 Cir. 1894, 64 Fed. Rep. 417, McKENNA, J. Lattimer vs. Poteet, U. S. Sup. Ct. 1840, 14 Peters, 4, MCLEAN, J. See extract from opinion in notes to § 473, post. United States vs. Carpenter, U. S. Sup. Ct. 1884, 111 U. S. 347, FIELD, J. A land patent was deWau-pe-man-qua vs. Aldrich, U.clared void under the rights of the Indians acquired under the Sioux treaty of 1859. S. Cir. Ct. Indiana, 1886, 28 Fed. 4 Cases should all be examined carefully to see in what cases, and under what circumstances State laws have been sustained. 5 Ward vs. Race Horse, U. S. Sup. Ct. 1896, 163 U. S. 504, WHITE, J. United States vs. Hunter, U. S. Cir. Ct. Mo., 1884, 21 Fed. Rep. 615, BREWER, J. United States vs. Le Bris, U. S. Sup. Ct., 1887, 121 U. S. 278. WAITE, Ch. J. |