Introduction to Federal Indian law
Module 4: Early 19th Century Indian Law: Cherokee Nation v. Georgia
Cherokee Nation v Georgia, decided in 1831 is the lead case in what's called the
Cherokee cases, and most of you are familiar with the history. The important particulars
are that the federal government had pursued a policy following the revolution of
negotiating with States over surrender of their claims to western lands. And so, states
like New York and Virginia had negotiated with the federal government to surrender any
claims they had to Indian held lands in the west and new states would be created out of
that territory. And of course, the problem was that when these agreements were made
between the states and the federal government, there were still Indians on those lands.
Throughout what's called the old Northwest, Michigan, Ohio, Indiana, Illinois, Wisconsin,
there were still Indians living there. But, what these agreements had done was clearly
recognize the exclusive jurisdiction of the federal government to negotiate for the
surrender and the extinguishment of the Indian title to those lands. So, understand
these agreements between the states and the federal governments as devices for
clearing jurisdictional issues, for defining absolutely and clearly which entity had the
authority to acquire and purchase the Indian title of occupancy.
State of Georgia
Georgia, along with several other states, had never been able to come to agreement
with the federal government on surrendering its western land claims. For one thing,
there were an awful lot of Indians there and those lands were very valuable. And for a
while, states like Georgia resisted the idea that the federal government had any
authority to negotiate with respect to Indian tribes. But in 1802 the state finally agreed
to surrender all its western lands to the United States with the understanding that those
western lands would eventually become the states of Mississippi, for example, and
many of the states that lie to the west of Georgia. And Georgia extracted a promise
from the federal government in exchange for this 1802 surrender, and that is that the
federal government would negotiate with the Cherokees to remove them from the land
within Georgia’s boundaries that remained. And for the next 30 years the federal
government failed to live up to that promise. So, beginning in the 1820’s the state of
Georgia began to take its own actions to force the Cherokees to remove, asserting state
jurisdiction over Cherokee country.
Now what’s interesting is the choice that Georgia gave to the Cherokees. Their choice
was simple: they could either pick up and move as a nation to lands beyond the
Mississippi river, or they could accept the abolition of their tribal status and reservation
and accept the benefits of citizenship in Georgia. However, the citizenship that was
being extended to the Cherokee was the type of qualified citizenship that was offered to
free persons of color, which meant that Cherokees would not be able to testify against
whites in a criminal trial or a civil trial. They wouldn’t be able to go to white schools.
Their franchise would be limited. And the Cherokees refused that offer and instead
decide to rest upon the rights in their treaties as giving them the right to stay in Georgia
and exercise jurisdiction within their homelands to the exclusion of the state. And
events reach a head in a case called Corn Tassel. A Cherokee is convicted by Georgia
for murder on the reservation. The Supreme Court issues a writ of habeas corpus, tells
Georgia they have no jurisdiction over that type of crime, and Georgia responds by
hanging Corn Tassel. Then Georgia starts extending its laws over the Cherokee
territory, dividing up the reservation into counties, and enforcing other racial laws that
have a remarkable similarity to the slave codes and the codes respecting the rights of
free persons of color.
The Treaty of Hopewell
And so, the Cherokees go to Andrew Jackson, who is president at that time, and ask
him to defend the rights in their treaties that had been negotiated with the United States
beginning in 1785 with the Treaty of Hopewell. Where the federal government and the
Cherokees agreed to a relationship of protection and one in which the Cherokees
recognized the superior sovereignty of the United States, but at the same time, the
United States pledged its duty of trust and protection of the Cherokees. If you look at
that treaty, cited in both the cases, the Cherokee cases, and included in the book earlier
in the chapter, there are a number of jurisdictional provisions in those treaties.
Jurisdiction is spelled out as between the federal government and the tribe with respect
to trespass by non-Indians, with respect to criminal offenses committed by Indians
against non-Indians, with respect to criminal offenses committed by non-Indians against
Indians. Those treaties really are frameworks for dividing jurisdiction, and Andrew
Jackson, basically said, “I refuse to enforce those treaties against the sovereignty of the
state of Georgia.” And so, looking at Congress, which had passed the Removal Act in
1830, which essentially supported Georgia’s actions to invade and extinguish the
Cherokee nation and its territory, you know you couldn’t go to Congress for help. They
turned to Andrew Jackson, who had signed the Removal Act, and had run upon it as
one of the important pieces of his political platform; Jackson wasn’t going to help them.
And so, in a final act of desperation, they turned to the Supreme Court.
Cherokee Nation v. Georgia
So Cherokee Nation is the case in which the Cherokee nation sues Georgia, trying to
seek the habeas laws overturned. If you look at Marshall’s introduction to the case, he
immediately spells out the procedural posture. They’re asking for an injunction to
restrain Georgia, a restraining order, from the execution of its laws, which go to
annihilate the Cherokees as a political society, and to seize the lands of the nation,
which had been insured to them by the U.S. in solemn treaties, repeatedly made and
still enforced. So Marshall does a very nice job sort of framing what’s at stake in this
case. There’s two ways to begin a legal opinion. One is, to frame the issue and that’s
what you lead with. The other way is to frame what’s at stake. This case, the Cherokee
case, had attracted national attention. Historians of Supreme Court say this was really
the first major big time case, crisis case, the Court was asked to confront, and it had
threatening implications for the dissolution of the union. It was at this time that Georgia
and other southern states, South Carolina, were arguing a right of nullification. The
nullification theory said that if a state, which is equally sovereign under the Constitution
to the federal government, doesn’t agree with an interpretation of a law, or of a right by
the federal government, the Supreme Court, Congress or the Executive, it can nullify
that and act contrary and still be within the Constitution. So, what Marshall is trying to
do is set up the gravity of this and recognize it. The next thing he says is, if courts were
permitted to indulge their sympathies, yeah you guys have a very compelling case, but
unfortunately as you’re going to find out, we can’t help you. So, what Marshall has
done, is lay out, immediately, the gravity of this case, as a way of framing the Court’s
decision on the jurisdictional issue, that we do not lightly deny jurisdiction, and in the
process sends a very strong signal to the Cherokee’s attorneys, that, find a better case.
He then runs through some language about the former status of the Cherokees, how
they were once a people, a powerful and independent and had gradually been brought
under our power. But before we get too far on that and look into the merits of the case,
he says on page 104, “I want to make a preliminary inquiry. Can we even hear this
case?” So I think one thing to recognize is that the Cherokee cases reinforce one of the
basic rules of jurisdiction, don’t assume you have it until you examine it. And it says
quite clearly that the Court only has original jurisdiction, that is, the authority to hear
cases at trial. The Supreme Court is normally a court of appellate jurisdiction; the
Constitution spells out in very limited fashion those cases over which it can literally hold
trial: original jurisdiction. And they are limited between cases and controversies
between a state or the citizens thereof, and foreign states, citizens or subjects. So, we
know that the Cherokees are not citizens of the state of Georgia, not in their national
collective identity as a tribe. If they’re going to be anything then, that gets us into the
Court’s jurisdiction, they’re going to have to be foreign states, citizens or subjects. And
so, having framed the issue as to whether or not the Court has jurisdiction and looking
to the text of the Constitution, are they a foreign state? It is a second order question.
It’s a question that’s generated out of the first and primary question of the case and that
is, does the Court have jurisdiction?
The Role of Treaties
One of the things I want to emphasize here is the role of the treaties in recognizing and
affirming tribal existence, tribal nationhood, tribal sovereignty, tribal capacity to
negotiate. The treaty is a very key trigger in the Marshall cases. It triggers a number of
distinct analyses of tribal rights but most importantly, it proves the nationhoodness of
Indian tribes, that they are somehow special and unique. Now, there is an interesting
approach to understanding the role of the treaty in constituting the tribal nation. You
can almost read these cases for the proposition that no treaty, no tribal nationhood, and
many modern tribes, particularly, the tribes for example of Washington state and
terminated tribes that no longer have a treaty relationship, will tell you that without a
treaty, it becomes a very difficult thing to assert tribal rights. The other thing that the
treaty does is constitute a unique jurisdictional unit. Appreciate the function of the treaty
in identifying something to exercise jurisdiction, something to exercise jurisdiction over.
What the treaty does is fix this rather highly destabilized entity we call a tribe. The
Cherokees ethnologically, ethnographically may constitute a tribe, but they’re spread
out over villages and the idea of that group of Indians having something approaching
nationhood is difficult to conceptualize from a tribal common law perspective. Does
sovereignty reside in the nation? What’s that? That is something that is constructed, at
least at the beginning, by the treaty relationship. So, appreciate the role of the treaty in
contributing to this concept of a jurisdictional unit. Something that can be managed,
something that can be controlled, something that can manage and control.
Are the Cherokee a Foreign State?
But Marshall says, that’s easy. Yes, the treaties recognize this sort of separate,
governing, identifiable status that distinguishes these people from the citizens of the
state, but there’s a question of much more difficulty, and that is whether they are a
foreign state. The Constitution says you’ve got to be a foreign state. Since you’re not a
state of this union, but you are some kind of state, some sort of self-governing entity,
recognized by treaty, tradition, and practice. Note the role of tradition and practice in
Cherokee Nation. Marshall refers to it. It has an important directive force in his
analysis. But that doesn’t answer the issue of whether or not they are a foreign state.
And it’s this argument that he examines most closely in Cherokee nation. And here he
does not go to the Constitution for guidance, he turns to the Doctrine of Discovery
decided in Johnson v McIntosh. In 1823, Marshall decided the case of Johnson v
McIntosh which says that for purposes of United States law, we look to the Doctrine of
Discovery. Johnson v McIntosh as well is a case about the jurisdiction of the courts of
the conqueror, the United States, to decide who holds the better title to Indian land.
And Marshall says we use the rule of the Doctrine of Discovery. And what is that rule?
He tells you on 105. The rule says, “They have an unquestioned right to the lands they
occupy until it shall be extinguished by a voluntary cession. Yet, it may be doubted
whether those tribes within the U.S. can be denominated foreign nations with strict
accuracy.” What does he call them? Domestic Dependent Nations. Notice how
Marshall then is using Cherokee to review the principles of the Doctrine of Discovery.
Johnson v McIntosh had simply answered the issue of what is the Court’s jurisdiction
with respect to lands purchased directly from Indian tribes? It can’t be recognized, and I
use the doctrine. Cherokee Nation says, what does the doctrine have to say about this
question of whether tribes are foreign nations or not. So we begin to see the over-
arching significance of the Doctrine of Discovery in determining these jurisdictional
questions. Ultimately, all jurisdictional analysis in Indian law reverts back to the Doctrine
of Discovery. If you’re having trouble figuring out a jurisdictional issue, who has it,
states, tribes, or federal government; concurrent, exclusive, shared, mutual. Go back to
the doctrine and start over again. And that’s what Marshall does here.
So, let me see how I can figure this issue out, of whether they are foreign nations or not.
They occupy a territory to which we assert a title independent of their will, (under the
doctrine,) which must take effect in point of possession when their right of possession
ceases, (under the doctrine.) Meanwhile they’re in a state of pupilage (under the
doctrine.) Their relation to the U.S. resembles that of a ward to his guardian. Yes,
under the doctrine. He is spinning out the legal implications, those second order
propositions which come out of the Doctrine of Discovery, and then goes into more
historical context. It’s a relationship of protection, they look to our government for
protection, rely upon its kindness. They and their country are considered by foreign
nations as well as by ourselves as being under the complete sovereign and dominion of
the U.S. (under the doctrine.) So, what Marshall is really doing is relying on the
precedent established by Johnson v McIntosh to ground his analysis in Cherokee
Nation. And it’s at that point that he then says, oh, and by the way if you look at their
habits and usages, it makes a lot of sense, the way we treat them, not as foreign states.
Let’s go back to the Constitution, since that’s what we’re doing. So notice this sort of in
and out that he does. At times, he uses a common sense dictionary type approach to
the Constitution, they’re not foreign, that’s not the way they’re referred to. At times, he
goes to the European Law of Nations and other times he goes into a cultural analysis.
And then he also, at this point in the opinion, on page 106, goes to the Founders’ intent.
That’s Marshall’s mastery as a jurist, is his ability to legitimate and justify and uphold
and strengthen his holding with lots of different arguments and precedents. Which is
why this case has withstood the test of time. You will not find many cases, which are
regularly cited as a foundational precedent by the Supreme Court today that were
decided in 1830. We tend to be more a bit more modern in our constitutional law. But
Marshall’s opinions have withstood the test of time and much of what we do in modern
federal Indian law is still organized around these opinions.
And so, based on that finding of the implications of the doctrine, buttressed by the way
that the Indians are in their habits and usages, they are not a foreign state, they are a
Domestic Dependent Nation. Understand what a intensely jurisdictional focus that
terminology puts Marshall into. It allows him to focus upon the tribe as a unit. If you are
dependent, you are under the superior sovereignty. If you are domestic, you are within
our borders. If you are a nation, you’re a state, so I’ll give you statehood; I’m not going
to give you foreign nationhood, however, because under the doctrine that’s not what
you are regarded as. And we all appreciate the jurisdictional foundation laid out by
Cherokee Nation in which the Court at this point seems to say, you know what, we don’t
have anything to say about Indian tribes. You could read this case as the Jacksonian
advocates of removal read it, as an affirmation that the Supreme Court had nothing to
say about Indian tribes because they had no jurisdiction over them. So, then that brings
us to Worcester v Georgia.