|Historical marker at Hopewell|
As many know, "jurisdiction" is a two-edged sword. Forty-three years later, Georgia passed a series of laws to expel the Cherokee from the "historical boundaries" of Georgia. In response, the Cherokee Nation filed an original action with the Supreme Court of the United States asking the Court to enjoin the enforcement of Georgia's laws on the grounds that the laws violated the U.S. Constitution and prior treaties, namely Hopewell and Holston. Cherokee Nation v. Georgia, 30 U.S. 1 (1832).
|Chief Justice John Marshall|
Art. III Sec. II of the U.S. Constitution gives the Supreme Court original jurisdiction over disputes between a state and foreign states. There lies the rub. Chief Justice Marshall asked whether the Cherokee Nation is a "foreign state" as the term was used in the "constitution." The answer... "No." The Cherokee Nation, albeit a nation that was foreign, was deemed a different type of entity altogether. Cherokee Nation v. Georgia declared the Cherokee to be a type of sub-nation, dependent on the United States. Cherokee, 30 U.S. at 26-27 ("They may more correctly perhaps be denominated domestic dependent nations."). The Treaty of Hopewell and Holston, despite using the word "treaty" were mere contracts, distinct from a treaty with a proper nation such as France.
As far as the intentions of the framers of the Constitution, Marshall had this to say:
At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the union. Cherokee, 30 U.S. at 34.