Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1832-03-30

az, -''h uav OF october, 1905; Al Tcllico, the
|'tn day OF October, 1905; at Washington city, on
the 9TH day of January 1905: at WashinTt on CITY
on the I'D day of March, 1916; Mt the Chickasaw
council House, the 18th day OF September
ioio; at the Cherokee Agency on the Sth day Of
July lSlI; and at Washington city on the 22d day
vi rcprnary 1919: all which treaties have been
uuly ratllcd by the Senate Cfthc United States of
America; and,by which treaties, the u. States of A.
herica'acknowlcdgo the said Cherokee nation to be
sovereign Nation, authorized to govern thcm-
sci'cS, ana all persons who have settled within
thcr territory, free from any right of legislative
interference by the several States composing the
United States of America, in reference to acts
zone "l,nin their own territory; and, by which
treaties the whole of the territory now occupied
by tho Cherokee Nation on the east of the Mis-
SsSlppi, has been soienmly guaranteed to them,
al oi Wnch treaties are existing treaties at this
day, and IN full force. BY these treaties and par
'iouafy Dy The the treaties of Ifopcwcli and Iiol
S'on'the aforesaid territory is acknowledged to lie
without the jurisdiction ofthe scvaral States com,
posing the Union of the United States: and it is
thereby specially stipulated that the citizens of the
United States shall not enter the aforesaid terri
tory, even on visit, without passport from the
Governor OF State, or from some one duly autho-
rzcd thereto, by the President of the u. States;
all oil which will more fully and ut large appear by
reference to the aforesaid treaties. And this de
iendant saith, that the several acts charged in the
Dill OF indictment, were done, or omitted TO he
done, IT at all, within the said territory SO rccop-
nlzed as belonging to the said nation, and so, as
aforesaid, held by them, under the guarantee of
the United States: that for those acts the defen-
dant Is not amcnablc to the laws of Georgia, nor
TO the jurisdiction the courts of the said State
and that the laws of the State of Georgia which
profess to add the said territory to the several
adjacent counties of the said State and to extend
TIC laws OF Georgia over the said territory, and
persons lnhabltng the same; and, in particular,
the act on which thisndictment rs. this defendant
Is grounded, to wit: can act entitled an act TO
prevent the exercise of assumed and arbitrary
" all n
from the Cherokee Indians, and their laws, and TO
prevent white persons from residing within that
part OF the chartered limits of Georgia occupied
by the Cherokee Indians and TO provide n guard
LOT the protection of the gold mines, and TO n
Iorce the laws of the State within the aforesaid
territory" are rcpugnant to the aforesaid treaties
which, according to the Constitution of the United
states, compose part of the supreme law of the
lana; and that these laws of Georgia are
unconstitutional, void, and of no effect that the
said laws of Georgia are also unconstitutional and
Void, because they impair the obligation of the va
rious contracts formed by and between the aforc
Saio cherokee Nation and the said United States
OF America. above reci,cd: also, that the said
laws OF Georgia are unconstitutional and void. be.
cause they interfere with, and attempt to regulate
ana cohtroi The intercourse with the said Cherokee
Nation, which, by the said Constitution, belongs
exclusively to the Congress of the United States;
ana because the said laws are repugnant to the
statute of the United States passed on the -
day of March, 1902, entitled ssAn act TO regulate
trade and intercourse with the Indian tribes and to
preserve peace on the frontiers:" and that, there
iorc' TINS court has no jurisdiction to cause this
defendant TO make further other answer TO the
SAID Dill OF indictment, further to try and pun
lsh this defendant for the said supposed offence or
offences alleged in the bill of Indictment or any of
thG": Ana that, therefore, this defendant prays
judgment whether he shall be held bound TO an
swcr further to said Indictment"
ms plea was overruled by the Court. And the
prisoner, being arraigncd, pleaded not guilty. The
jury found verdict against him, and the Court
sentenced him TO hard labor in the peiSitentiarv
Tor the term of four years
by overruling this plea the Court decided that
INC matter 1t contained not bar to the action.
The plea, therefore, must be examined for the pur-
pose of determining whether it makes a case
which brings the party within the provisions of the
25th section of the "Act TO establish the judicial
courts of the u. States"
The plea AYERS that the residence, charged in the
Indictment, was under the authority of the Presi-
dent OF the United States, and with the permission
and approval of the Cherokee nation. That the
treaties subsisting between the United States and
the Cherokces, acknowledge their right a sove-
reign nation to govern themselves and all persons
who have settled within their territory, free from
any right OF Legislative interference by the several
States composing the United States of America
mat the act, under which the prosecution in
sttuted, is repugnant to the said treaties and is
therefore, unconstitutional and void. That the
SAID act Isl also, unconstitutional; because it in
tericres with and attempts to regulate and control
the intercourse with the Cherokee nation, which
belongs, exclusively, to Congress- and, because, |
also, 1T Is repugnant to the statute of the o. States
entitled San act TO regulate trade and intercourse
with the Indian tribes, and to preserve peace on
the frontiers"
Let the averments Of this plea be compared with
the 25th section of the Judicial Act
That section cnumcratcs the in which the
final judgment or decree of Il State Court may be
revised in thc Supreme Court of the United States
These are-''wherc is drawn in question the v.idi-
ty of treaty, statute of, or an authority cxcr
ciscd under the United States, and the decision is
against their validity; where is drawn in qucs-
ton the validity of statute of, an authority
exercised under any State. on the ground of their
being rcpugnant to the Constitution treaties or
laws of tho United States, and the decision is i'm
favor OF such their validity; where is drawn in
question the construction of any clause of the
Constitution, Of treaty, statute of, or com
mission held under, the United States, and the de-
cIslon is against the title, right, privilege, or en-
cmPtion, specially set up claimed by either par
ty, under such clause Of the said Constitutions trca
ty, statute, or commission"
The indictment and plea, in this case, draw in
question, think, the validity of the trcatics
made by the United States with the Cherokee In.
dams. II not so, their construction is certainly
drawn in question: and the decision has bcpn il
not against their valldity'againstt the right p-ivi.
lego, exemption, specially set ND and claimed
under them" They also draw into question the
validity of statute of the State of Georgia, ''on
the ground of IFS being repugnant to the ConStilu-
ton, treaties and laws of the United States, and
the decision is in favor Of its validity"
1t is, then, we think, too clear for controversy,
that the act of Congress, by which this Court is
constituted, has given it the power, and Of course,
imposed on it the duty, OF exercising jurisdiction
in this case. This duty, however unpleasant, can
not be avoided Those who fill the judicial de-
partmcnt have discretion in selecting the sub
Jects TO be brought before them We must exam
inc the defence set up in this plea: We must IN.
quiro and decide whether the act Of the Lcgisla-
turc of Georgia, under which the plaintiff in cr.
ror has been prosecuted and condemned, be con.