The Marshall Trilogy: Cherokee Nation v. Georgia (1831) - Domination Translator Series - Part 4

The Marhsall Triology

Cherokee Nation v. Georgia (1831)

The Cherokee Nation went into the U.S. Supreme Court in an effort to get an injunction against the “State of Georgia” to prevent it “from the execution of certain laws” of Georgia “which as alleged, go directly to annihilate the Cherokees as a political society and to seize, for the use of Georgia, the lands of the [Cherokee] Nation which have been assured [guaranteed] to them by the United States in solemn treaties repeatedly made and still in force.”

Chief Justice Marshall, for the majority, wrote:

If Courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people [that was] once [in the past] numerous, powerful, and truly [free and] independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking [forced] beneath our superior [dominating] policy, our arts and our arms [domination], have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue [remainder], until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant [of their lands], the present application is made. emphasis added

Marshall continues as follows:

Before we can look into the merits of the case, a preliminary inquiry presents itself. Has this Court jurisdiction of the cause?

The third article of the Constitution describes the extent of the judicial power. The second section closes an enumeration of the cases to which it is extended, with “controversies” “between a State or the citizens thereof, and foreign states, citizens, or subjects.” A subsequent clause of the same section gives the supreme Court original jurisdiction in all cases in which a State shall be a party. The party defendant [the state of Georgia] may then unquestionably be sued in this Court. May the plaintiff sue in it? Is the Cherokee Nation a foreign state in the sense in which that term is used in the Constitution?

The Chief Justice said that the question whether the Supreme Court had jurisdiction to rule on the case came down to one central question: Can the Cherokee Nation be regarded as “a foreign state” as “that term is used in the Constitution?”

Former U.S. Attorney General William Wirt was the attorney for the Cherokee Nation, and Marshall said of his efforts:

The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as 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, 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 [domination] plainly recognize the Cherokee Nation as a State, and the Courts are bound by those acts.

However, the question remained whether the Cherokee people “constitute a foreign state in the sense of the Constitution?” emphasis added Marshall responds to the question as follows:

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.

Note: Ballentine’s Law Dictionary (1969) defines “foreign” as “Belonging to another nation or country.” Citing “Cherokee Nation v. Georgia 5 Pet. 1, 56, 8 L Ed 25, 45,” Ballentine’s notes: “In a political sense, we call every country foreign which is not within the jurisdiction of the same government.” It continues: “In this sense, Canada and Mexico, and all transatlantic countries are foreign to the United States.” Marshall continues:

This argument [when each individual is foreign, the whole must be foreign] 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 [based on the doctrine of discovery and the assertion of “ultimate dominion” explained in Johnson v. McIntosh] the relation of the Indians to the United States is marked by peculiar and cardinal distinctions [exceptions] which exist nowhere else.

The Indian Territory is admitted [mentally conceived of by the Court] to compose a part [a portion, division, piece, or segment of the territory] of the United States. In all our maps, geographical treatises, 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 [the Indians] 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 [of occupancy] 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 [claimed] boundaries of the United States can, with strict accuracy, be denominated foreign nations. emphasis added

Note: It is interesting to ponder a key point. Given that the Indian nations, their lands and their territories, predate the United States, by what form of ‘magic’ did those nations and peoples end up being deemed “within” or “inside” the later-formed and claimed boundaries of the United States? The answer is by a form of mental magic called “imagination” which includes the artistry of map making.

Notice that the term “magi” (the root of magic) is embedded in the word imagination. If the Court had acknowledged that the Indian nations were foreign nations, it would have logically followed that the lands and territories of those Native nations were foreign to the United States in the same way that, as Ballentine’s notes, Canada and Mexico are foreign to the United States. The weight of this logic would have stood as a permanent bar that could potentially exclude the United States from the lands and territories of the Native nations.

Below, notice that Marshall says that the Indian nations “occupy a territory to which we assert [claim] a title [of ultimate dominion] independent of [against] their will.” An assertion is another part of the magic act that pretends that the lands of the Indian nations compose part of the territory of the United States. Marshall continues:

They [the Indian nations] may, more correctly, perhaps, be denominated [termed and mentally conceived of as] domestic dependent nations. [Based on the doctrine of Christian discovery and domination] [t]hey occupy a territory to which we assert a title [of ‘ultimate dominion’] independent of [i.e. against] their will, which must take effect in point of possession when their right of possession ceases. Meanwhile [until that time] they are in a state of pupilage. Their relation to the United States resembles [is analogous to] that of a ward to his guardian.

They look to our government [system of domination] for protection; rely upon its [our domination’s] kindness and its power; [they] 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 [domination] and dominion [domination] of the United States that any attempt [by a foreign power] 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 [against us].

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.

---

Cases

• Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). https://www.law.cornell.edu/supremecourt/text/30/1
• Johnson & Graham’s Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). https://www.law.cornell.edu/supremecourt/text/21/543

Series Navigation

Previous: Johnson v. McIntosh (Part 3)

Next: Worcester v. Georgia (Part 5)

Copyright

© Copyright Steven T. Newcomb, January 1, 2026