American Indian Heritage Month: Commemoration vs. Exploitation
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Cherokee Nation v. Georgia

Following the discovery of gold there in 1829, Georgia attempted to assert authority over the Cherokee Nation, which comprised several economically self-sufficient towns with their own farms, mills, animal herds, and government. Cherokees also used a written language, devised by Sequoyah. The assertion of political authority by the state of Georgia set the stage for a key test of federal–state relations in the decades before the Civil War, as the Cherokees resisted removal to Indian Territory, in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832).

The term "Marshall Trilogy" is used to describe the group of Chief Justice John Marshall's rulings in Johnson v. McIntosh (1823), Cherokee Nation v. Georgia, and Worcester v. Georgia. In these three cases, Marshall developed legal doctrines that defined the relationships among the United States, the individual states, and Native American nations. In these opinions, according to legal scholar Charles F. Wilkinson, "Marshall conceived a model that can be described broadly as calling for largely autonomous tribal governments subject to an overriding federal authority but essentially free of state control" (1987, 24).

The Marshall Trilogy is so important in American Indian law because the key precepts of Marshall's three opinions have been interpreted by lawyers, judges, legal scholars, and government officials in many different ways. The Bureau of Indian Affairs, for example, used the phrases "dependent," "pupilage," and "ward" to construct a cradle-to-grave social and political control system in which even adult Indians were regarded legally as incompetents, much like children.

President Jackson's adamant support of Indian removal placed him on a direct constitutional collision course with Chief Justice John Marshall, who was in the process of evolving legal doctrines vis-à-vis Native American land rights on which he had been working before Jackson was elected. The Cherokee cases, which came before Chief Justice Marshall's U.S. Supreme Court between 1823 and 1832, would display, in broad and emphatic relief, how closely much of early nineteenth-century American life was connected to the land speculation machine that helped propel westward movement.

In Cherokee v. Georgia, the Cherokees sued in federal court under a clause in the Constitution (Article III, section 2) that allows foreign citizens or states to seek legal redress against states in the union. In this case, the Cherokees were suing as an independent nation seeking redress because the state of Georgia had extended its power over Cherokee territory, extinguished the authority of the Cherokee government, and executed one of its citizens. Chief Justice Marshall skirted the issue by deciding that the Cherokees were not an independent country, but instead a "domestic dependent nation." Marshall thus threw the case out of court, deciding that the Cherokees had no grounds on which to sue under the Constitution.

Georgia replied, citing a clause in the Constitution that prohibits the establishment of a state within the borders of another state. Marshall found, however, that the Cherokees had a legal relationship with the federal government through treaties; Georgia's assertion of unilateral control was said by Marshall to be "repugnant to the said treaties, and . . . therefore unconstitutional and void" (Baker, 1974, 743). Writing for the majority in Cherokee Nation v. Georgia, Marshall said that the Cherokees possessed a limited sovereignty: "They may, more correctly, perhaps be denominated domestic dependent nations . . . Their relation to the United States resembles that of a ward to his guardian." These phrases, as interpreted by the Bureau of Indian Affairs, became the legal justification for the colonial system that was being imposed on Indians as Anglo-American settlement exploded across North America in the nineteenth century. Whether he intended it or not, the government used Marshall's conception of the relationship to justify placing Indians in state of "wardship" in which their lives were placed under control by government agents. More than a century later, the "self-determination" movement aimed to dismantle this system.

The doctrine of wardship (as it has been applied to Native Americans) often is said to have grown out of Marshall's rulings, although he may not have intended such an application. As the legal scholar Felix Cohen wrote:

. . . [T]he doctrine of Indian wardship arose out of a misunderstanding of Chief Justice Marshall's holding, in 1831, that an Indian tribe was not a foreign nation but was rather a "domestic dependent nation," and that its position toward the United States resembles that of a ward toward a guardian. This did not mean that an Indian tribe is a ward; even less did it mean that an individual Indian is a ward. But the opinion and several later opinions popularized the term wardship (Cohen, 1960, 331).

Under the reign of these magic words ["wardship" and "trust"] nothing Indian was safe. The Indian's hair was cut, his dances forbidden, his oil lands, timber lands, and grazing lands were disposed of by Indian agents and Indian commissioners for whom the magic word "wardship" always made up for lack of statutory authority . . . (Cohen, 1960, 131–132).

In Cherokee v. Georgia, the justices of the Supreme Court took a variety of positions on the issue of Native American sovereignty that reflected societal attitudes toward the issue. While Justices Marshall and John McLean held that Indians lived in domestic dependent nations, Justices Smith Thompson and Joseph Story held that the Cherokees were a sovereign nation. Justice Henry Baldwin wrote that they had no sovereignty at all, and Justice William Johnson believed that the Cherokees had no sovereignty in his time but that they possessed an inherent political power that might "mature" into more complete independence in the future.

Removal of the Cherokees and several other Native nations during the 1830s allowed the expansion of Anglo-American populations south and west through parts of Georgia, Alabama, Mississippi, and neighboring states. At roughly the same time, the industrial application of Eli Whitney's cotton gin created a mass market in moderately priced cotton clothing. Within a decade after their removals, the Indians' homelands were replaced, in large part, by King Cotton and a revival of slavery.

The removal of the "civilized tribes" from their homelands is one of the most notable chapters in the history of American land relations. Jackson's repudiation of John Marshall's rulings, which supported the Cherokees' rights to their homelands, was contempt of the Supreme Court (an impeachable offense under the Constitution). The subject of impeachment was not seriously raised, however. During the incendiary years before the Civil War, the removals became intertwined with the issue of states' rights vis-à-vis the federal government. Had Jackson followed Justice Marshall's rulings, the Civil War might have started during the 1830s.

Jackson did not seek the removal of the Cherokees and other civilized tribes—the Cherokees, Choctaws, Chickasaws, Creeks, and Seminoles—because they did not productively use the land. On the contrary, the civilized tribes were making exactly the kind of progress that the Great White Father desired of them: becoming farmers, educating their children, constituting governments modeled on the United States. Immigrants, many of them Scots and Irish, had married into Native families. Some of them owned plantations and slaves.

The issue was not the Indians' degree of civilization. It was ownership of the best agricultural land in the area. Land was the largest type of wealth in the United States during Andrew Jackson's lifetime. Slaves who worked the land of the South—human capital—were the second most widely held type of financial asset. The entire financial super-structure of stocks, bonds, and various forms of fungible cash so familiar in the late twentieth century lay largely in the future.

Michael Paul Rogin wrote of the period: "Land in America was not only a symbol of national identity, but also—in a more thoroughgoing fashion than anywhere else in the world—a commodity. . . . Land was the nation's most sought-after commodity in the first half-century of the republic, and the effort of men to acquire it was one of the dominant forces of the period" (1975, 79). Rogin quoted a contemporary source: "Were I to characterize the United States, it would be by the appellation of the land of speculators" (1975, 80). Land, once ownership had been wrested from Native owners, became the largest "futures market" available at the time, its value determined by its hoped-for future use in a newly evolving non-Indian society. As a general, and later as president, Jackson represented the values and interests of the land speculation industry.

Removal as an idea was not Jackson's creation. Nearly three decades before Jackson executed it, in 1802, the state of Georgia signed an agreement with the U.S. government (the Cherokees were not consulted), stating its intent to work toward extinguishment of all Cherokee land titles within state borders as early as the land could be "peaceably obtained, and on reasonable terms" (Moulton, 1978, 24). By the time the Removal Act was passed by Congress in 1830, most white Georgians regarded the United States to be "seriously delinquent in the bargain" (Moulton, 1978, 24).

As President Jackson ignored Chief Justice Marshall's opinion in Worcester v. Georgia, he also showed his frontier constituencies that he supported a belief popular among states' rights advocates of the time: that the Supreme Court should be stripped of its power to review the rulings of state courts. Marshall repudiated the states' rights advocates' belief that Section 25 of the Judiciary Act of 1789 prohibited the Supreme Court from hearing the case. A bill that would have repealed that section (which gives the U.S. Supreme Court the power to rule on appeals from state courts) was debated on the floor of the House of Representatives, voted on, and defeated January 29, 1831.

The purported limits on the Supreme Court's authority based on states' rights stirred substantial controversy during the 1830s; when Worcester v. Georgia was heard before the Court on February 20, 1832, fifty members of the House of Representatives (about a quarter of the body) were in attendance. Marshall stepped into the maw of the states' rights firestorm by turning aside a ruling of the Georgia Superior Court. Jackson, in turn, all but created his own law by ignoring Marshall's ruling.

As a result of Jackson's action, Georgia proceeded with its plan to evict Indians living within its borders and transfer the Indians' land to non-Natives. Between one-third and one-fourth of the sixteen thousand Cherokee people who were removed during 1838 died on the march to Indian Territory (now Oklahoma) or shortly thereafter. The Cherokees' name for the march (nuna-daa-ut-sun'y,"the trail where they cried") provided its English name, the Trail of Tears.

Bruce E. Johansen

Further Reading
Baker, Leonard. 1974. John Marshall: A Life in Law. New York: Macmillan.; Cohen, Felix. 1960. The Legal Conscience: The Selected Papers of Felix S. Cohen. Edited by Lucy Kramer Cohen. New Haven, CT: Yale University Press.; Moulton, Gary E. 1978. John Ross: Cherokee Chief. Athens: University of Georgia Press.; Rogin, Michael Paul. 1975. Fathers and Children: Andrew Jackson and the Subjugation of the American Indian. New York: Alfred A. Knopf.; Wilkinson, Charles F. 1987. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press.

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