♪♪Music♪♪ In the early 1830's the United States shifted to a policy of Indian removal, and that's what we are going to talk about now. It was important to realize this was a policy adopted by the Executive over the objection of the Judicial Branch and that tension is going to be the theme in part of of this lecture. We're going to explore a bit about the circumstances that gave rise to the conflict between the state of Georgia and the Cherokee Nation that will eventually culminate in the Indian Removal Act of 1830 and two great Supreme Court decisions. The case of Cherokee Nation vs. Georgia decided in 1831, and the case of Worcester vs. Georgia decided in 1832. We're also going to talk a little bit about the idea of removal. A little bit about the history of the policy and the role of Andrew Jackson and his administration played in making it the official policy of the United States. The Georgia problem is one that everyone knows about um, but I think some of the details escape popular attention. So we're gonna trace a little bit about the history of the relationship between Georgia and the Federal Government of the issue of the Cherokee's and then we'll look to what was happening specifically in the late 1820's that gave rise to these landmark Supreme Court decisions. Georgia as we've discussed in an earlier class had charter claims under its British charter to lands that included Mississippi what became the states of Mississippi and Alabama. In 1802, Georgia decided or agreed to seed whatever those claims were to the United States. And part of what they received in exchange was the promise from the United States as soon as practicable the United States would enter into a treaty with the Tribes that remained within the now much smaller limits of the state of Georgia and which those Tribes would leave would seed those lands. Georgia could begin granting those lands or otherwise exploiting them, and the Tribes would go somewhere else. So, this is what Georgia hoped to get out of its session of these western lands claims to the United States in 1802. While Thomas Jefferson was President in 1802, I think he would have been all for entering into a treating with the Tribes that were then in Georgia which included the Muskogee Creek Nation and the Cherokee Nation in the northwestern part of the state. The Creeks eventually did enter into a treaty in which they seeded their Georgia lands into the United States. Um but the Cherokee's weren't really interested in 1802 in seeding those lands and they weren't especially interested in 1803 or 04 or 05 or for the remainder of the Jefferson administration. In 1817 or so one group of Cherokee's did agree to move west they moved to Arkansas first and then out to what became Oklahoma. They're called the the old settlers. But the bulk of the Cherokee Nation opted to remain in Georgia and indeed took steps to make sure that they would never leave. they adopted economic practices from the surrounding state. The Cherokee's have legalized slavery. They became a plantation based economy in large part. The Government included a lot of mixed blood Cherokee- Scotts. The Scotts had been out in the mountains for a long time, and there was a lot of inter-marriage with with the Cherokee's and a lot these these new people brought with them a greater familiarity of how the federal system worked and took advantage of that. They had agents in Washington working with the federal government. And as we'll see it's this group that will bring these to Supreme Court cases. The first cases brought to the Supreme Court by by a tribe. The the Cherokee's in 1827 adopt a written constitution that creates a legislative branch, executive, judicial, separation of powers. The nation becomes literate all most overnight in the 1820's with the creation by Sequoia of the syllabary. Know what a syllabary is. It's different from an alphabet. A syllabary is it's a form of written expression where there's one symbol for every syllable. So the word Chokma which is Chickasaw would have two symbols as opposed to five or six. You're not spelling out the individual sounds one for Chok and one for ma. What that meant was you had more symbols because there are more syllable sound combinations. Once you learn all those symbols the syllabary it's really easy to read to sound out what the words are. And the Cherokee Nation became in estimation of many the most literate political community on the planet in the 1820's all most overnight. With the assistance of New England missionary's the Cherokee's established a newspaper which was published in English and Cherokee. And then in the late 1820's in 1829 or so gold was discovered in the Cherokee Nation and at this point it was absolutely clear to folks in Georgia to folks in Washington that the Cherokee's were not willingly going to leave their lands in northwest in northwest Georgia. They were very settled they were there they were there to stay. So what's Georgia to do? Well they weren't entirely sure. There was some thought we'll maybe we could somehow invade but no we can't because under the constitution the war making powers were reserved to the federal government. Or maybe could we enter into our own treaty with the Cherokee's? The answer no because under the constitution the treaty making powers were reserved to the federal government. So well maybe we could get Congress or the federal government to enter into a treaty which they'd promised to do in 1802. The regular delegations from Georgia showing up at the white house trying persuade the President to agree to get these people to enter into a treaty in which they will seed their lands and the consistent position of whomever the incumbent president is they don't want to go, and we're not going to force them to go. And that was true. That was the position of the Cherokee of the Cherokee Government and the Cherokee people. What changed the course of this story and ultimately forced the issue was the election of Andrew Jackson in 1828 and the discovery by Georgia of the Discovery Doctrine in Johnson v. M'Intosh. And the latter they happened contemporaneously. It's hard to know exactly who it was in Georgia who who first discovered the Johnson v. M'Intosh opinion. But somebody did. And somebody read that John Marshall had said in that opinion that on discovery of the new world, the discovering sovereign acquired ownership of the underlying title to all discovered lands. Well in the view of Georgia after reading this that meant that the King of England had on discovery acquired to ownership of the underlying title to the lands of the Cherokee Nation. And when Georgia declared independence Georgia assumed ownership of that land, and that meant that the Cherokees essentially were living on land that Georgia owned which meant that Georgia was the landlord and the Cherokee's were their tenant. Now, and this is the language they used in discussion now if you're a landlord and you want to get rid of a tenant what do you do? Um Georgia decided well you change the terms the terms of the lease. So you all can stay, but the rules are going to be different. And in in 1828 as Andrew Jackson's being elected President and they thought for reasons I'll discuss that Jackson would be sympathetic to this move they passed a statute saying Cherokees you all stay but from now on your lands are going to be attached to four Georgia County's. You're now a part of the political map of Georgia. And the following year they passed a statute that would be effective in 1830 saying that, and in addition your laws are invalid, your government doesn't exist, and you are subject to George laws. Including a few special laws we're going to pass just for you. Like if you're a non-Indian in the in the Cherokee Nation you've got to have a license from the state of Georgia to be there. Now this was a huge move again understand predicated on Georgia's believe that under Johnson v. M'Intosh it's the landlord and so can do things like this. It can apply its laws extra territorially, and it's got the support Georgia believes of the incoming presidential administration. Now Jackson was known he was as an old Indian fighter. We talked in earlier lectures about Jackson's leadership of American forces in the Red Stick War against the faction of the Creeks that had responded to the Tecumseh's call to resist American incursions. Jackson was on record as supporting the idea of Indian removal and that is something we are going to talk about momentarily. Now he didn't invent the idea of Indian removal. And it turned out that Georgia gambled correctly. In his first message to Congress in December 1829, Jackson said you know its its come to my attention that Georgia has imposed its laws on the Cherokee Nation and couple of other states followed suit including Tennessee and Alabama. And and I'm going on record as saying they can do this they have the power to do this and the Cherokee's and other Tribes in states that have chosen to do this have two choices. they can stay but they're going to be subject to state law or they can leave and here's where I'd like Congress to do. I want you all, and this is what annual address are often for to pass a statue that I will sign that says that if if the Tribes in the southeast elect not to be subject to state law and if they elect in other words to leave we will exchange them lands out west for the lands they're vacating in the east. And these would be the lands out in we'll discuss the it's the border lands um in what would be lands that are on the border with Mexico at this time that would eventually become the state of Oklahoma. and so that's the deal. He has Jackson has his his partitions and Congress introduce this legislation it's call the Indian Removal Bill. It's debated in the House. It's debated in the Senate and eventually by a narrow margin passes and Jackson signs it, and it becomes the Indian Removal Act in 1830, and now the options the options available. Appreciate that there were folks in Congress concerned about the legality and the correctness of Georgia's position. Georgia's view is predicated on Johnson vs. M'Intosh, but a lot of folks including Theodore Frelinghuysen who was a representative a Senator from New Jersey and others took the position this this doesn't make any sense. Georgia can't impose its laws on the Cherokee Nation because Georgia doesn't own those lands. The Cherokee Nation owns those lands. And there was an additional problem that their ownership was recognized and protected by a treaty. The Treaty of Hopewell which had been signed after the Revolutionary War. And that was true for for the for most if not all of the other affected Tribes as well. So so this is this is the battle, and of course Georgia's position the advocate of removal which is most of the southern delegations responded Yeah Georgia does own the land it says so in Johnson vs. M'Intosh. Right? So they do have the power to enforce their laws extra territorially over the Cherokee Nation. The issue is is not resolved legislatively except the Removal Act is passed um, but it will be resolved judicially because the Cherokee Nation sort of casting about how do we respond to this? The last thing we want is to be subject to Georgia laws eventually decides let's file a lawsuit. Let's get the Supreme Court to tell the administration and Congress that Georgia cannot impose its laws on us. Because appreciate it if Georgia can't impose its laws then the Cherokee's aren't leaving they have no incentive to leave. But if Georgia can impose its laws then they've got a problem sticking around, and vacating seems a much more much more valid option to begin something they do not want to do. The first case they put together is lawyered by a guy named William Wirt. Wirt served as Attorney General of the United States in two presidential administrations. He is the longest serving Attorney General the John Quincy Adams and the James Monroe administration. He's out of office now. He is running for President in 1832. As is the candidate of the Anti-Masonic Party which no longer exists, a very very short life. And I'm not sure that he even applied for the job they decided to nominate him. And all of this eventually will politicize these cases. Um that's outside the scope of of present interest. But Wirt decides that um there are a few ways he can go here. He could file a lawsuit in a federal court in Georgia arguing that the state doesn't have the power to enforce its laws in the Cherokee Nation, but he'll probably lose and it'll take time, and bad things will happen. He could file a lawsuit in a state court in Georgia that'll even be even worse. Or he could try and streamline the process by filing his lawsuit directly in the Supreme Court of the United States. Now how can you do that? Well the constitution says as Wirt Wirt knew in Article 3 that there are a few instances in which the Supreme Court can properly act as the trial court and hear witness and issue issue trial judgments etc. And their their cases like lawsuits between states. So if the State of Oklahoma sues the State of Texas they file that suit in the Supreme Court and the Supreme Court acts as the trial court. Suits between foreign countries and states also gets filed. The Supreme Court you can file them in the Supreme Court which I said is a trial court. These are called Original Jurisdiction cases as opposed to appellate jurisdiction cases which is what the Supreme Court ordinarily does hearing appeals from lower courts. Well how is this an original jurisdiction case? Well Wirt's reasoned as follows: Georgia is the defendant we're going to sue Georgia and to get them to stop enforcing their laws or to get a declaration they don't have the power to enforcing their laws. The plaintiff will be the Cherokee Nation. And the argument will be that the Cherokee Nation is a foreign Nation for purposes of Article 3 that's the judicial article in the constitution "original jurisdiction". So where is says suits between foreign Nations or foreign states and states can be filed in the Supreme Court. That's what this is. A suite between a foreign state and state. And so on the strength of that argument he files his lawsuit with co-counsel a guy named John Sargent in the Supreme Court of the United States. And the Supreme Court takes this case and says well okay well what are we going to do with this? Well the the questions not easy to resolve it turns out. Because the the its well it's clear that Georgia is a is a state of the Union it's not clear to the majority of Justices that the Cherokee Nation is a foreign state for purposes of Article 3 Original Jurisdiction. And the court will split in three. There are three separate opinions. we tend to think of John Marshall's opinion as the majority opinion. Um but it really it really isn't in the sense of the and he calls it the opinion of the court, but it's him and one other justice. Two of the justices opined that the Cherokee Nation are neither foreign or a state. Their just a bunch of Indians and they're within the United States so so under no theory can they bring an original action against the United States. One of the justices the justice who wrote one this opinion on this point said you know if we allow this suite then then every his words words were every petty crowl of Indian's every little group. Crowl was an Africans word that meaning like a corral. Every small group of Indians will be filing lawsuits against states all over the place, and all we're going to do as the Supreme Court is hear suits by Indian Tribes. Little Indian Tribes against states in the Union. So that's two justices. Two justices opined that the Cherokee's were both foreign and a state. They're a state because they're a political community they've got a government. And they're foreign because none of their citizens are US citizens. And that was true at the time. It was true until 1924 for for many tribal members. They weren't US citizens until Congress made it so. A statute which we will talk about later. So they're they have to be a foreign state. They're a state, and they have to be foreign because they're not US citizens even though they exist physically within the bounds of the United States. But that's only two justices. And then there's Marshall. And Marshall said with one justice concurring in language that since been famous um I think they're a state but I don't think they're a foreign state. They're a state because they're a political community. But they're not a foreign state in the way that France is etc. and he had some textural support for this. The Commerce Clause which we discussed in an earlier lecture which gives express power to Congress to regulate commerce with the Indian Tribes in full says that congress should have power to regulate commerce among the several states and with the Indian Tribes and with foreign states. And in Marshall's view that indicated the drafters of the constitution thought that foreign states and Indian Tribes were different things. So if that's true what are they? Well Marshall said and here's the famous language "they might more properly the Tribes be denominated domestic dependent nations". They're nations, but they're domestic dependent nations. Um dependent maybe a descriptive domestic as distinct from foreign. And understanding what those words means incidentally is a lot of what modern Indian law turns out to be about. And then the second thing he says is again explaining what he meant by that is that their relationship to the United States might be compared to that of a ward to his guardian. And that's the first appearance we have in a Supreme Court decision as to this notion that, in some sense, the Federal Government does or ought be behave as a guardian for the Tribes who are wards of the United States in some sense. And that's a concept that I think doesn't have any particular legal significance in this opinion, but it's going to come back much later, and acquire legal force in a decision we'll talk about in a later class. In in the in in the late 19th century decision called the United States v. Kagama. So so what does that mean? Well it means that you've got two four justices of six who think that the Cherokee Nation is a Nation, but you've got four justices of six who don't think it's a foreign nation for purposes of Article 3 Original Jurisdiction. And that means that the Supreme Court lacks jurisdiction over this case. Now the Court concludes by expressing its concern about the situation in Georgia and among the last words of the opinion are the words that that the Court would be happy to entertain the Cherokee Nations complaint against Georgia "in a proper case with proper parties". That's interpreted correctly by the Cherokees as invitation to re-orchestrate the lawsuit and to file it again. They will follow year in the case of Worcester v. Georgia and that'll be the primary topic for our next lecture. ♪♪Music♪♪