702,) all former treaties are declared to be in full force; and the sanction of the United States is given to the proposition of a portion of the nation to begin the establishment of fixed laws and a regular government: thereby recognising in the nation a political existence, capable of forming an independent government, separate and distinct from, and in no manner whatever under the jurisdiction of the State of Georgia; and no objection is known to have been made by that State. And, again, in 1819, (6 Laws U. S. 748,) another treaty is made sanctioning and carrying into effect the measures, contemplated by the treaty of 1817; beginning with a recital that the greater part of the Cherokees have expressed an earnest desire to remain on this side of the Mississippi, and being desirous, in order to commence those measures which they deem necessary to the civilization and preservation of their nation, that the treaty between the United States and them, of the 8th of July 1817, might, without further delay, be finally adjusted, have offered to make a further cession of land, &c. This cession is accepted. and various stipulations entered into, with a view to their civilization, and the establishment of a regular government, which has since been accomplished. And by the fifth article it is stipulated, that all white people who have intruded, or who shall thereafter intrude on the lands reserved for the Cherokees, shall be removed by the United States, and proceeded against according to the provisions of the act of 1802, entitled 'An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on, the frontiers.' (3 Laws U. S. 460.) By this act, the boundary lines, established by treaty with the various Indian tribes, are required to be ascertained and marked; and among others, that with the Cherokeee nation, according to the treaty of the 2d of October 1798. It may be necessary here, briefly to nonotice, some of the provisions of this act of 1802, so far as it goes to protect the rights of property in the Indians; for the purpose of seeing whether there has been any violation of those rights by the State of Georgia, which falls properly under judicial cognisance. By this act, it is made an offence punishable by fine and imprisonment, for any citizen or other person resident in the United States, or either of the territorial districts, to cross over or go within the boundary line, to hunt or destroy the game, or drive stock to range or feed on the Indian lands, or to go into any country, allotted to the Indians, without a passport, or to commit therein any robbery, larceny, trespass, or other crime, against the person or property of any friendly Indian, which would be punishable, if committed within the jurisdiction of any State, against a citizen of the United States, thereby necessarily implying that the Indian territory secured by treaty was not within the jurisdiction of any State. The act further provides, that when property is taken or destroyed, the offender shall forfeit and pay twice the value of the property so taken or destroyed. And by the fifth section it is declared, that if any citizen of the United States, or other person, shall make a settlement on any lands belonging or secured, or guarrantied, by treaty with the United States to any Indian tribe; or shall survey or attempt to survey, such lands, or designate any of the boundaries, by marking trees or otherwise; such offender shall forfeit a sum not exceeding one thousand dollars, and suffer imprisonment not exceeding twelve months. This act contains various other provisions for the purpose of protecting the Indians in the free and uninterrupted. enjoyment of their lands and authority is given' (§ 16) to employ the military force of the United States to apprehend all persons who shall be found, in the Indian country, in violation of any of the provisions of the act; and deliver them up to the civil authority, to be proceeded against in due course of law. It may not be improper here to notice some diversity of opinion that has been entertained with respect to the construction of the nineteenth section of this act, which declares that nothing therein contained shall be construed to prevent any trade or intercourse with the Indians living on lands surrounded by settlements of citizens of the United States, and being within the ordinary jurisdiction of any of the individual States. It is understood that the State of Georgia contends that the Cherokee nation come within this section, and are subject to the jurisdiction of that State. Such a construction makes the act inconsistent with itself, and directly repugnant to the various treaties entered into between the United States and the Cherokee Indians. The act recognises and adopts the boundary line as settled by treaty. And by these treaties, which are in full force, the United States sol : emnly guaranty to the Cherokee nation all their lands not ceded to the United States; and these lands lie within the chartered limits of Georgia and this was a subsisting guarantee under the treaty of 1791, when the act of 1802 was passed. It would require the most unequivocal language to authorise a construction so directly repugnant to these treaties. But this section admits of a plain and obvious interpretation, consistent with other parts of the act, and in harmony with these treaties. The reference undoubtedly is to that class of Indians which has already been referred to, consisting of the mere remnants of tribes, which have become almost extinct; and who have fin a great measure, lost their original character, and abandoned their usages and customs, and become subject to the laws of the State, although in many parts of the country, living together, and surrounded by the whites. They cannot be said to have any distinct government of their own, and are within the ordinary jurisdiction and government of the State where they are located. are But such was not the condition and character of the Cherokee nation, in any respect whatever, in the year 1802, or at any time since. It was a numerous and distinct nation, living under the government of their own laws, usages, and customs, and in no sense under the ordinary jurisdiction of the State of Georgia; but under the protection of the United States, with a solemn guarantee by treaty of the exclusive right to the possession of their lands. This guarantee is to the Cherokees in their national capacity. Their land is held in common, and every invasion of their possessory right is an injury done to the nation, and not to any individual. No private or individual suit could be sustained: the injury done being to the nation, the remedy sought must be in the naine of the nation. All the rights secured to these Indians, under any treaties made with them, remain unimpaired. These treaties are acknowledged by the United States to be in full force, by the proviso to the seventh section of the act of the 28th May 1830; which declares, that nothing in this act contained shall be construed as authorising or directing the violation of any existing treaty between the United States and any Indian tribes. That the Cherokee nation of Indians have, by virtue of these treaties, an exclusive right of occupancy of the lands in question, and that the United States bound under their guarantee, to protect the nation in the enjoyment or such occupancy; cannot, in my judgment, admit of a doubt: and that some of the laws of Georgia set out in the bill are in violation of, and in conflict with those treaties and the act of 1802, is to my mind equally clear. But a majority of the court having refused the injunction, so that no relief whatever can be granted, it would be a fruitless inquiry for me to go at large into an examination of the extent to which relief might be granted by this court, according to my own view of the case. I certainly, as before observed, do not claim, as belonging to the judiciary, the exercise of political power. That belongs to another branch of the government. The protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This Court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation, upon rights properly falling under judicial cognisance, or a remedy is not to be had here. The laws of Georgia set out in the bill, if carried fully into operation, go the length of abrogating all the laws of the Cherokees, abolishing their government, and entirely subverting their national character. Although the whole of these laws may be in violation of the treaties made with this nation, it is probable this court cannot grant relief to the full extent of the complaint. Some of them, however, are so directly at variance with these treaties and the laws of the United States, touching the rights of property secured to them, that I can perceive no objection to the application of judicial relief. The State of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed in any manner whatever as acts of war; but merely as an assertion of what is claimed as a legal right; and in this light ought they to be considered by this court. The act of the 2d of December, 1830, is entitled an act to authorise the gover silver and other mines lying, and being nor to take possession of the gold and in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the State, and for punishing persons who may be found trespassing on the mines.' The preamble to this act asserts the title to these mines to belong to the State of Georgia; and by its provisions twenty thousand dollars are appropriated, and placed at the disposal of the Governor to enable him to take possession of those mines; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia at hard labor, for the Cherokee Indians to work these mines. And the bill alleges that under the laws of the State in relation to the mines, the Governor has stationed at the mines an armed force who are employed in retraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. These can be considered in no other light than as acts of trespass; and may be treated as acts of the State; and not of the individuals employed as the agents. Whoever authorises or commands an act to be done may be considered a principal, and held responsible, if he can be made a party to a suit: as the State of Georgia may undoubtedly be. It is not perceived on what ground the State can claim a right to the possession and use of these mines. The right of occupancy is secured to the Cherokees by treaty, and the State has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated, to extinguish, for the use of the State, the Indian title to the lands within her remaining limits, as soon as it can be done peaceably and upon reasonable terms. But, until this is done, the state can have no claim to the lands. The very compact is a recognition by the State of a subsisting Indian right: and which may never be extinguished. The United States have not stipulated to extinguish it, until it can be done 'peaceably and upon reasonable terms;' and whatever complaints the State of Georgia may have against the United States for the non-fulfilment of this compact, it cannot affect the right of the Cherokees. They have not stipulated to part with that right; and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of the territory. Again, by the act of the 21st December 1830, surveyors are authorised to be appointed to enter upon the Cherokee territory and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on, with the lots on which such improvements may stand, and even excepting from such reservation, improvements recently made near the gold mines. This is not only repugnant to the treaties with the Cherokees, but directly in violation of the act of Congress of 1802; the fifth section of which makes it an offence punishable with fine and imprisonment, to survey or attempt to survey or designate any of the boundaries, by marking trees or otherwise, of any land belonging to, or secured by treaty to any Indian tribe in the face of which, the law of Georgia authorises the entry upon, taking possession of, and surveying, and distributing by lottery, these lands guarantied by treaty to the Cherokee nation; and even gives authority to the governor to call out the military force, to protect the surveyors in the discharge of the duty assigned them. These instances are sufficient to show a direct, and palpable infringement of the rights of property secured to the complainants by treaty, and in violation of the act of Congress of 1802. These treaties and this law, are declared by the Constitution to be the supreme law of the land; it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only, very briefly to inquire, whether the execution of them can be restrained by injunction according to the doctrine and practice of courts of equity. According to the view which I have already taken of the case, I must consider the question of right as settled in favor of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are no grounds, therefore, upon which it can be necessary to send the cause for a trial at law of the right, before awarding an injunction; and the simple question is, whether such a case is made out by the bill, as to authorise the granting an injunction. This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process, for the protection of rights; and is favorably viewed by courts of Chancery, as its object is to prevent, rather than redress injuries; and has latterly been more liberally awarded than formerly. (7 Ves. Jun. 307.) The bill contains charges of numerous trespasses by entering upon the lands of the complainants and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses when there is a clear and adequate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irreparable ruin. (6 Ves. 147. 7 Eden, 307.) Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But, where from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants. The mischief threatened is great and irreparable. (7 Johns. cha. 330.) It is one of the most beneficial powers of a court of equity to interpose and prevent an injury, before any has actually been suffered; and this is done by a bill, which is sometimes called a bill quia timet. (Mitford, 120.) The doctrine of this court in the case of Osborne vs. The United States Bank, (9 Wheat. 338,) fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the State of Ohio, to restrain him from executing a law of that State, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only question of doubt, entertained by the court in that case was, as to issuing an injunction against an officer of the State to restrain him from doing an official act enjoined by statute, the State not being made a party. But even this was not deemed sufficient to deny the injunction. The court considered that the Ohio law was made for the avowed purpose of expelling the bank from the State, and depriving it of its chartered privileges: and they say, if the State could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunc tion; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the State of Ohio. In that case, the State could not be made a party, according to the eleventh amendment of the Constitution; the complainants being mere individuals and not a sovereign State. But, according to my view of the present case, the State of Georgia is properly made a party defendant; the complainants being a foreign State. The laws of the State of Georgia in this case go as fully to the total destruction of the complainants' rights as did the law of Ohio to the destruction of the rights of the bank in that State; and an injunction is as fit and proper in this case to prevent the injury, as it was in that. It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary to give full effect and operation to the injunction; and it is immaterial where the subject matter of the suit, which is only affected consequentially, is situated. This principle is fully recognised by this court in the case of Massie vs. Watts, (6 Cranch, 157,) when this general rule is laid down, that in a case of fraud of trust or of contract, the jurisdiction of a Court of Chancery is sustainable, wherever the person may be found, although lands, not within the jurisdiction of the court, may be affected by the decree. And reference is made to several cases in the English Chancery recognising the same principle. In the case of Penn vs. Lord Baltimore, (1 Ves. 444,) a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction. Upon the whole, I am of opinion. 1. That the Cherokees compose a foreign state within the sense and meaning of the Constitution, and constitute a competent party to maintain a suit against the State of Geergia. 2. That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the State of Georgia, referred to in this opinion. 3. That an. injunction is a fit and proper writ to be issued, to prevent the further execution of such laws, and ought therefore to be awarded. And I am authorised by my brother Story to say, that he concurs with me in this opinion. The State of New Jersey, Complainant, vs. the People of the State of New York. MR WIRT, for the complainant, stated, that the subpoena had been regularly served upwards of two months, and there was no appearance on the part of the State of New York. The seventeenth section of the Judiciary act of 1789, authorises the Court to make, and establish, all necessary rules for the conducting the business of the Courts of the United States. This Court has such a power, without the aid of that provision of the law. The seventh rule of this Court, which was applicable to this matter, was made at August term, 1791. The Chief Justice, in answer to the motion of the Attorney General, informs him and the Bar, that this Court considers the practice of the Court of King's Bench and of Chancery, in England, as affording outlines for the practice of this Court; and that they will from time to time make such alterations therein, as circumstances may render necessary.' (1 Cond. Rep. 8.) In 1796, the tenth rule was adopted. Ordered, that process of subpoena issuing out of this Court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and further, that if the defendant, on such service of the subpœna, should not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte.' Construing these two rules together, they bring us, in the case before the Court, to that part of the English practice, where the party may proceed to a hearing. There is no necessity for those proceedings here, which are resorted to in England to compel an appearance. Nor would the practice in England be proper in the case before this Court. The object of the bill is to quiet a title: it is a bill of peace. Here the rule considers the party, when served with process, in the same situation as if he had appeared. The question is, what is to be done when all the process to compel an appearance is exhausted: what is the next step? It is to take the bill pro confesso. but in England, formerly, by a standing rule in Chancery, before this can be done, the party must have appeared. Afterwards, to prevent the process of the Court being eluded, the statute of 25 Geo. II. was enacted, by which it was provided, that if no appearance was entered by one who had absconded, the Court would make an order for an appearance, and if no appearance was entered, the bill should be taken pro confesso. This statute regulated the practice in the Courts of Chancery of England, in 1791, when the seventh rule of this Court was adopted. But this statute applied only to the case of a party absconding, and it was only to force an appearance. In the present case, as has been observed, we stand as if all the proceedings for such a purpose had been exhausted. Different practices prevail in relation to such a case in the several States of the Union. In New Jersey, the practice is to file the proofs in the cause, and proceed to a hearing. This is not the course which is pursued in Virginia. As to the practice in England, cited (2 Pr. Wm 556. Mosely, 386. Har. Chancery Practice, by Newland, 156. 1 Grant's Chancery Practice, 96.) Something is now to be done in this case and it is for the Court to determine what that may be. If the Court desire it, it is fully competent to them to make any new rule relative to the future proceedings in the case. In the Court of Chancery in England, the party could take a decree, pro con |