The exclusiveness of this federal jurisdiction, and, consequently, the lack of constitutional power of the States in this field first came up for serious discussion in the Supreme Court of the United States in the case of The Cherokee Nation v. Georgia,16 decided in 1831. This case came before the court on a motion on behalf of the Cherokee Nation of Indians for a subpoena and for an injunction to restrain the authorities of the State of Georgia from executing the laws of the State within the Cherokee territory as designated by a treaty between the United States and the Cherokee Nation. The case, however, was not decided on its merits, the majority of the court, including Chief Justice Marshall, holding that the Cherokee Nation was not a foreign State within the meaning of the clause of the Constitution which extends the federal judicial power over controversies "between a State or the citizens thereof, and foreign States, citizens, or subjects," and gives to the Supreme Courts original jurisdiction in cases in which a State is a party. It was held, therefore, that the court was without power to entertain the suit.
Upon this point, Marshall in his opinion said: "Though the Indians are acknowledged to have an unquestionable, and heretofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may be well doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic independent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them would be considered by all as an invasion of our territory, and an act of hostility. 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." 17
15 in Bates v. Clark (95 U. S. 204; 24 L. ed. 471) "Indian lands" are defined by the Supreme Court to be " all the country to which the Indian title has not been extinguished anywhere within the limits of the United States."
16 5 Pet. 1; 8 L. ed. 25.
17 Justices Johnson and Baldwin delivered opinions concurring with that of Marshall. Justice Thompson dissented, holding the Cherokee Nation to constitute not only a sovereign State - though under the protection of the United States - but a foreign State. He said: "They have never been, by conquest, reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence and the rights of self-government, and become subject to the laws of the conqueror. Whenever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side according to existing circumstances; the Indian nation always preserving it-? distinct and separate character. And notwithstanding we do not recognize the right of the Indians to transfer the absolute tithe of their lands to any other than ourselves, the right of occupancy is still admitted to remain in them, accompanied with the right of self-government, according to their own usage and customs; and with the competency to act in a national capacity, although placed under the protection of the whites, and owing a qualified subjection so far as is requisite for public safety. But the principle is universally admitted that this occupancy belongs to them as a matter of right, and not by mere indulgence. They cannot be disturbed in the enjoyment of it, without their free consent; or unless a just and necessary war should sanction their dispossession. In this view of their situation, there is as full and complete recognition of their sovereignty, as if they were the absolute owners of the soil. The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their national or foreign character, so long as they are permitted to maintain a separate and distinct government; it is their political condition that constitutes their foreign character, and in that sense must the term foreign be understood as used in the Constitution."