Cherokee Nation V. Georgia

During the early part of the nineteenth century, the Federal Government was in its infancy and relatively powerless in terms of jurisdictional authority over the newly settled states. Despite federally signed treaties, questions and claims of separate state sovereignty and control over Native American land often arose. In the state of Georgia, the decisions in two cases, Cherokee Nation v. Georgia and Worcester v. Georgia (The Cherokee Nation Cases), were used to define the relationship between the states, the government and the native people as well as describe Native American political independence and their degree of sovereignty. These decisions have had long lasting social and legal impacts on the Native American people and are a tool still used in the legal battles they face today.

Background
Cherokee Nation v. Georgia

The Cherokee Nation, as a strategy to claim independence from state control, was making great strides in what they viewed as an attempt to "civilize" themselves in response to the forced assimilation imposed by the Euro-Settlers. The State of Georgia however, was no longer interested in their attempts to integrate into western culture. The Native Americans, if allowed to have their independence, would maintain control of land and resources the state desperately needed to support the growth of capitalism and the settling of a civilized state.

In November of 1882 Andrew Jackson; a supporter of Georgia's claims to Cherokee land, and long time advocate of Native American removal to the west, was elected President. In December of that same year, Georgia passed legislation putting Cherokee territory under state control. The tribe protested to Congress, but Andrew Jackson refused to intervene. Approximately one year later, the Georgia legislature passed an act giving the state jurisdictional authority over all Cherokee civil and criminal legal matters. The Cherokee people again appealed to congress and were given no resolution. A policy Thomas Jefferson passed in 1828 would eventually give the State of Georgia the legal grounds it needed to relocate the tribes westward.

The Indian removal Act of 1830 codified Jefferson's policy and allowed the states to forcibly remove the tribes to make room for western expansion. The policy and the act were based on the notion that the native people did not possess the ability to successfully assimilate into the Euro way of life and would therefore impede the spread of western culture. In June of 1830, the governor of Georgia, George C. Gilmer claimed that large amounts of gold found on Cherokee land were the property of the State of Georgia. When the tribes refused to turn over the gold, Gilmer ordered the swift invasion of tribal lands and the removal (supported by the Indian Removal Act of 1830) of the Cherokee's by way of force. This drove the Cherokee people to seek protection by way of Supreme Court intervention.

Decision
Cherokee Nation v. Georgia

The Cherokee Nation, in December of 1830, filed an original bill with the Supreme Court circumventing the State Courts. Under Article III section 2 of the Constitution, a foreign state is allowed to bring a cause of action directly to the Supreme Court (Deloria p.29). The Cherokees were making a motion as an independent nation seeking redress because the state of Georgia had illegally extended its power over Cherokee land (Johanesen p.42). The Supreme Court dismissed their motion on the grounds that the "Indian Tribes" were not considered a separate state or a foreign nation. This decision was supported by the eighth clause of the third section of the Constitution empowering Congress to regulate commerce with foreign nations and among several states and with the "Indian Tribes". The wording in this clause describes foreign nations, states and the tribes as separate and distinct, therefore the Supreme Court was not the proper venue for such a claim. Despite being dismissed, Chief Justice Marshall was forced to clarify matters regarding the identity of the Native American people and the relationship they were to have with the Federal Government.

Marshall acknowledged the tribal right to occupy land, however the land would remain under the control of and titled to the Federal Government. As a result, an invasion on tribal lands would now be considered an invasion on the United States. When addressing past treaties signed by the Native Americans, Marshall recognized that the tribes did have a degree of political independence. He combined their political and geographical positions and created their status, known under the law, as a Domestic Dependent Relationship with the Federal Government. This relationship places the Native Americans in a state of pupilage (Deloria p.30) and defines the tribes as Domestic Dependent Nations. Marshall goes further and contends that the tribes were incapable of protecting themselves, and that aid from the U.S. Government would be extended to them as would a "guardian to a ward" (Deloria p.30).

Background
Worcester v. Georgia

In March of 1830 a group of missionaries led by Pastor Samuel Worcester were found living on the Cherokee reservation and under Cherokee law. A state of Georgia statute prohibited "non-Indian's" who were not representatives of the Federal Government to remain in Cherokee country and obey Cherokee laws (Deloria p.29). Governor Gilmer contacted John H. Eaton, the Secretary of War, and confirmed the non-federal status of Worcester and his missionaries. Subsequently, they were arrested for violating the aforementioned statute, charged and convicted on July 7, 1831. On September 15 of that same year the group was sentenced to four years of hard labor. Worcester, after the sentencing, filed an appeal with the United State Supreme Court on the basis that he and the missionaries were on Cherokee land with Cherokee permission, allowable under federal treaties.

Decision
Worcester v. Georgia

In response to the motion filed by Pastor Worcester, Marshall, contrary to his decision in Cherokee v. Georgia, declared that the Native American people did have their own political institutions and right to self-government. Marshall referenced the 1785 Treaty of Hopewell to support his decision. The treaty stated that any citizen or immigrant who did not remove himself from Cherokee lands within six months of the ratification of that treaty would forfeit the protection of the United States and be subject to "Indian" punishment. Marshall declared that "Indian Territory" was completely separate from that of the states and all dealings with the "Indians" was to be carried out solely by the Government of the Union. Therefore, the Cherokee Nation is a distinct community occupying its own territory with boundaries accurately described in which the laws of Georgia do not extend. Additionally, the citizens of Georgia do not have the right to go beyond those boundaries without the permission of the Cherokees themselves. Marshal closed by stating, "The whole intercourse between the United States and this (Cherokee) Nation is, by our constitution and laws, vested in the government of the United States (Deloria p.32, 33). Pursuant to Marshall's decision, the ruling on the Worcester appeal overturned the state court in January of 1832.

Social and Legal Implications

President Jackson, upon hearing Marshall's decisions, remarked, "John Marshall has made his decision: now let him enforce it". The adolescence of the Federal Government at that time and its lack of protective power made it impossible for Marshall to shield the Cherokee Nation from the state of Georgia. The Cherokees were forced to sign the treaty of New Echota, under duress, in 1835 and were subsequently forced to relocate west of the Mississippi. They had to make the trek on foot with little food or water. The conditions were so horrific; the Cherokee lost over sixteen thousand of their tribe to fatigue, hunger, disease and violence at the hands of the US Military. This journey would later become known as "the trail of tears". The removal of the Cherokee Nation by President Jackson, in blatant disregard of Marshall's decision, is considered one of the most harshly noted executions of judicial misconduct in history. His actions created hostility and distrust between the U.S. Government and the Native Americans as well as legitimized their feelings of isolation, solitude and vulnerability. Additionally, he single handedly reinforced the Euro-Settlers false notion of "white supremacy" and that the western ideology of capitalism was and would remain the only "civilized" way of life. Jackson's misconduct and the means he used to relocate the Cherokee, though impeachable under the U.S. Constitution, were never addressed.

Sadly, this move west would only be a temporary solution to western expansion. The development of the railroad flourished, as did capitalism and the need to move further west and disrupt tribal life. Native Americans were again labeled as "unfit" and "savages" infringing on the growth of America. Marshall, by calling the tribes "wards" legitimized this social labeling, implying their inferiority and forcing otherwise self sufficient, independent, communal peoples to become dependent on the very populace who have caused them so much pain.

Marshall, with his decision in Cherokee v. Georgia, defined the relationship between the Native American people and the United States Government. The relationship he created was one of tribal (ward) dependence on the Federal Government (guardian). This reliance on the Government for aid remains the grounds that Native Americans rely on during litigations that require the accountability of the United States regarding any and all tribal affairs. This relationship has become the basis for the trust responsibility and the ward ship system (Johansesn p.186). Conversely, The Bureau of Indian Affairs (BIA) has interpreted the terms used by Marshal (dependent, pupilage, and ward) as terms of inferiority. This inferiority initially justified the spread of the colonial system across North America as well as constructed the cradle-to-grave social and political mind set which placed the Native Americans in a state of incompetents, as children are considered in other legal and social contexts. This type of thinking also led to a super structure of political programs that have had and continue to have a vast impact on governmental policies that regard Native Americans as substandard (Johansen p.186). To date, the BIA still refuses to recognize Native Americans as anything more then inferior, despite all of their achievements and successes.

In the Worcester decision, Marshall explained two major aspects of Native American sovereignty. The tribes, who are under the protection of the Federal Government, lack sufficient self-determination to claim full political independence. However, the tribes do posses sufficient powers to shield themselves from any intrusion by the states and, the Federal Government is responsible to ensure this sovereignty is protected. Today, the Cherokee Nation cases are the underpinnings upon which federal responsibility for tribal care is based (Deloria p.33). It's not hard to see the duality found in Marshall's decisions. On one hand he created an environment that gave the tribes quasi-sovereign status, kept state interference out of tribal politics and put the burden of protection, aid and accountability on the U.S. Government. At the same time, he labeled the tribes as dependent, powerless wards of the Federal Government perpetuating the idea of their inferiority. This duality has given power to both the tribes and the U.S. Government during litigation and the construction of policies and programs regarding Native American affairs. The decisions rendered in the Cherokee Nation Cases continue to support Native American advancements and are essential in their continued development and the preservation of their culture.

Bibliography

1. Deloria, Vine Jr. American Indians, American Justice. University of Texas Press, Austin (1983).

2. Johanesen, Bruce Elliot. The Encyclopedia of Native American Legal Tradition, Greenwood Press, Westport, CT, (1998).

3. Kappler, Charles J. Indian Affairs, Laws and Treaties, Washington Government Printing Office, (1904).

4. Kappler, Charles J. Indian Treaties, 1778-1883, Interland Publishing Inc., New York (1972).

5. Urofsky, Melvin L. The Supreme Court Justices, Garland Publishing Inc. New York (1994).

6. Laquer, Walter. The Human Rights Reader, Temple University Press, Philadelphia (1979).