Such was the origin of the case of The Cherokee Nation vs. The State of Georgia.[1450] At Wirt's request, Judge Dabney Carr laid the whole matter before Marshall, Wirt having determined to proceed with it or to drop it as the Chief Justice should advise. Marshall, of course, declined to express any opinion on the legal questions involved: "I have followed the debate in both houses of Congress, with profound attention and with deep interest, and have wished, most sincerely, that both the executive and legislative departments had thought differently on the subject. Humanity must bewail the course which is pursued, whatever may be the decision of policy."[1451]
Before the case could be heard by the Supreme Court, Georgia availed herself of an opportunity to show her contempt for the National Judiciary and to assert her "sovereign rights." A Cherokee named George Tassels was convicted of murder in the Superior Court of Hall County, Georgia, and lay in jail until the sentence of death should be executed. A writ of error from the Supreme Court was obtained, and Georgia was ordered to appear before that tribunal and defend the judgment of the State Court.
The order was signed by Marshall. Georgia's reply was as insulting and belligerent as it was prompt and spirited. The Legislature resolved that "the interference by the chief justice of the supreme court of the U. States, in the administration of the criminal laws of this state, ... is a flagrant violation of her rights"; that the Governor "and every other officer of this state" be directed to "disregard any and every mandate and process ... purporting to proceed from the chief justice or any associate justice of the supreme court of the United States"; that the Governor be "authorised and required, with all the force and means ... at his command ... to resist and repel any and every invasion from whatever quarter, upon the administration of the criminal laws of this state"; that Georgia refuses to become a party to "the case sought to be made before the supreme court"; and that the Governor, "by express," direct the sheriff of Hall County to execute the law in the case of George Tassels.[1452]
Five days later, Tassels was hanged,[1453] and the Supreme Court of the United States, powerless to vindicate its authority, defied and insulted by a "sovereign" State, abandoned by the Administration, was humiliated and helpless.
When he went home on the evening of January 4, 1831, John Quincy Adams, now a member of Congress, wrote in his diary that "the resolutions of the legislature of Georgia setting at defiance the Supreme Court of the United States are published and approved in the Telegraph, the Administration newspaper at this place.... The Constitution, the laws and treaties of the United States are prostrate in the State of Georgia. Is there any remedy for this state of things? None. Because the Executive of the United States is in League with the State of Georgia.... This example ... will be imitated by other States, and with regard to other national interests—perhaps the tariff.... The Union is in the most imminent danger of dissolution.... The ship is about to founder."[1454]
Meanwhile the Cherokee Nation brought its suit in the Supreme Court to enjoin the State from executing its laws, and at the February term of 1831 it was argued for the Indians by Wirt and Sergeant. Georgia disdained to appear—not for a moment would that proud State admit that the Supreme Court of the Nation could exercise any authority whatever over her.[1455]
On March 18, 1831, Marshall delivered the opinion of the majority of the court, and in it he laid down the broad policy which the Government has unwaveringly pursued ever since. At the outset the Chief Justice plainly stated that his sympathies were with the Indians,[1456] but that the court could not examine the merits or go into the moralities of the controversy, because it had no jurisdiction. The Cherokees sued as a foreign nation, but, while they did indeed constitute a separate state, they were not a foreign nation. The relation of the Indians to the United States is "unlike that of any other two people in existence." The territory comprises a "part of the United States."[1457]
In our foreign affairs and commercial regulations, the Indians are subject to the control of the National Government. "They acknowledge themselves in their treaties to be under the protection of the United States." They are not, then, foreign nations, but rather "domestic dependent nations.... They are in a state of pupilage." Foreign governments consider them so completely under our "sovereignty and dominion" that it is universally conceded that the acquisition of their lands or the making of treaties with them would be "an invasion of our territory, and an act of hostility." By the Constitution power is given Congress to regulate commerce among the States, with foreign nations, and with Indian tribes, these terms being "entirely distinct."[1458]
The Cherokees not being a foreign nation, the Supreme Court has no jurisdiction in a suit brought by them in that capacity, said Marshall. Furthermore, the court was asked "to control the Legislature of Georgia, and to restrain the exertion of its physical force"—a very questionable "interposition," which "savors too much of the exercise of political power to be within the proper province of the judicial department." In "a proper case with proper parties," the court might, perhaps, decide "the mere question of right" to the Indian lands. But the suit of the Cherokee Nation against Georgia is not such a case.
Marshall closes with a reflection upon Jackson in terms much like those with which, many years earlier, he had so often rebuked Jefferson: "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."[1459]