“An Indian tribe or nation within the United States is not a foreign state, in the sense of the constitution, and cannot maintain an action in the courts of the United States.”
On March 18, 1831, the US Supreme Court handed down a decision to the Cherokee Nation denying its petition to prevent the state of Georgia from extending legal authority into Cherokee territory. In 1829 and 1830, Georgia’s state legislature had enacted a series of legislative acts stripping the Cherokees residing within its borders of their constitutional, judicial, and legal autonomy. The Cherokee Nation, receiving negligible support in countering Georgia’s actions from either the newly elected President Andrew Jackson or the US Congress, turned to the Supreme Court to seek recognition of its status as a sovereign nation.
Writing the majority opinion for the court in Cherokee Nation v. Georgia, John Marshall dismissed the Cherokees’ case on the grounds that American Indian tribes were not considered foreign nations under the Constitution and therefore could not bring suit directly to the Supreme Court without going through the process of lower court appeals. Unable to receive an injunction against the actions of the state of Georgia, the Cherokee Nation remained increasingly vulnerable to the coercive tactics of the state government in bringing Cherokee territory under its authority. The Cherokees were ultimately expelled from their tribal lands in the Southeast and removed to land west of the Mississippi in an episode now known as the Trail of Tears.
The relationship of the United States government to American Indian nations was complex and inconsistent. The designs of the growing nation on Indian lands led to many instances of conflict and negotiation, which in turn led to many signed and broken treaties. Early government policy, however, did not necessarily foreshadow the direction that Indian relations would take in the mid-nineteenth century. George Washington’s administration, and particularly his secretary of war, Henry Knox, implemented a policy that recognized tribal sovereignty and the right of native peoples to their lands. In addition, the government implemented a “civilization” initiative that encouraged American Indians to convert from hunting and gathering to farming and animal husbandry.
The Cherokee Nation in particular embraced the civilization initiative. Early on, the Cherokees modeled their tribal system around the institutional structures of the United States. By the mid-eighteenth century, the Cherokees established a primary chief to act as their nation’s figurehead and elected a national council to assist in conducting negotiations with the United States federal government. The tribe had established a legal and judicial system and police force by 1810 and ratified a constitution in 1827. In the early nineteenth century, Cherokee territory occupied land located within the states of North Carolina, Tennessee, Georgia, and Alabama. By the 1820s, the state of Georgia had begun to put intense pressure on native peoples to cede their land and relocate out of the state in order to allow white Georgians access to the valuable territory. After the Creeks were pushed out of state land via the 1826 Treaty of Washington, Georgia set its sights on removing the Cherokees.
Encountering resistance to removal by the Cherokee nation, Georgia began to use legislative acts to extend the state’s legal powers into Cherokee territory. John Ross, the Cherokees’ principle chief, immediately sought legal assistance against the encroachments of the state. The tribe contracted William Wirt, a nationally renowned lawyer, as their attorney. Wirt saw his first opportunity to challenge Georgia’s actions when a Cherokee man, George “Corn” Tassel, was arrested by Georgia police for murdering another Cherokee man on Cherokee territory. Though the Cherokee Nation disputed the jurisdiction of the case, a tribunal of appellate judges within the state overruled the Cherokee contestation and allowed the Tassel trial to proceed. Tassel was found guilty and sentenced to death. Wirt appealed Tassel’s conviction and asked the Supreme Court for an injunction to suspend Tassel’s execution. Chief Justice John Marshall granted the request and subpoenaed Georgia’s governor to appear before the court. Georgia’s governor and the state legislature decided to ignore the subpoena and carry out the execution, defying the Supreme Court’s instruction. On December 24, 1830, Tassel was hanged; William Wirt filed the case that would become Cherokee Nation v. Georgia three days later.
Born in Germantown, Virginia, in 1755, John Marshall experienced firsthand the often-violent contests over land between western Virginian settlers and American Indians. Despite being steeped in frontier life from a very young age, he was encouraged by his father to read poetry, history, and classical texts. His childhood was a mixture of pioneer living and genteel education. Marshall came of age surrounded by the philosophy and patriotism of the Revolutionary War. At age nineteen, he was appointed lieutenant in the Continental Army and later spent the infamous winter of 1777–78 with George Washington at Valley Forge. While on extended leave from the war, Marshall began the only formal legal training of his career when he attended a three-month-long course in law taught by George Wythe at the College of William and Mary. Soon after, Marshall resigned his commission in the Continental Army, passed the bar exam, and attempted to begin practicing law. The disruption of the war, however, had closed the courts temporarily. His career in law delayed, Marshall won a seat in the Virginia House of Delegates in 1782. Finding the House of Delegates chaotic and unproductive, Marshall spent time in and out of office sporadically over the years due to his ambivalence about the efficiency of the legislature. His experience in legislative government, coupled with the nationalistic feelings he developed in the Revolution, began to shape Marshall’s belief in the need for a Federalist system driven by a strong central government.
Marshall held prominent positions in the political and legal institutions of Virginia for nearly two decades until President John Adams began to recruit him to national office. Serving first as a special envoy to France during the XYZ Affair and then as Adams’s secretary of state, Marshall was ultimately appointed by Adams to the position of chief justice of the United States Supreme Court in 1801. Marshall’s legacy as chief justice would prove to be one of the most enduring and influential in the history of the court. Marshall died in 1835, after thirty-four years as chief justice.
The case of Cherokee Nation v. Georgia defined the relationship between the United States and the American Indian nations inhabiting the land. In writing the majority opinion in the case, John Marshall articulated maturing ideas on constitutionally defined relationships between Indian nations and US federal and state governments. He also explored the right of Indian nations to bring suit in original jurisdiction cases and conceived of native nations’ status as “domestic dependent nations.” The Cherokee Nation court opinion reflects Marshall’s attempts to navigate the increasingly precarious position of native peoples in the Southeast, the hostile political environment surrounding the court, and the limitations set by the Constitution.
When deciding on how to best address the Cherokee Nation’s legal case, the tribe’s attorney, William Wirt, presented John Ross, the Cherokee principle chief, with three options. An individual suit could be made against a state official to challenge the restrictive Cherokee codes of the state legislature, but Wirt was wary of seeking legal recourse from the lower courts. The state and the Cherokee Nation could jointly present the case to the Supreme Court to determine the laws’ constitutionality, a proposal the Georgia governor rejected outright. The Cherokees could appeal a case tried in Georgia to the Supreme Court, but after the collapse of the Tassel case, Wirt decided to press forward with the last option: Wirt would attempt to convince the Supreme Court to hear the case on the basis of original jurisdiction. In article 3, section 2, clause 2 of the US Constitution, the Supreme Court is given original jurisdiction—the right to try previously untried cases—only in circumstances involving suits between states and foreign governments. All other cases the Supreme Court adjudicates must be heard on appeal. Wirt framed his case to the court by arguing for the sovereignty of the Cherokees as a foreign nation. To argue for their status as a foreign nation, Wirt used the US government’s history of signing treaties with the Cherokees, just as they would any other foreign nation, as evidence that they held sovereignty over their own governmental structure and controlled their own lands. Additionally, Wirt contested Georgia’s actions by pointing to the supremacy clause of the Constitution, which prevents states from superseding national laws and treaties.
Marshall’s interpretation of original jurisdiction in this case demonstrated his understanding of the limits set by the Constitution on the court. Though Marshall used the Cherokee Nation opinion to explore the constitutionality of several aspects of Cherokee claims to sovereignty, the case ultimately came down to the question of whether they had standing to exercise original jurisdiction. In addressing this issue, Marshall looks directly to the language of the Constitution. While he notes that, according to article 3, section 2 of the Constitution, the state of Georgia could clearly be a party to an original jurisdiction case, he questions whether “the Cherokees constitute a foreign state in the sense of the constitution.” Marshall acknowledges the independence and self-governance of the Cherokees and notes that the Cherokees are not citizens of the United States, but instead citizens of their own nation. What complicates their status as “foreign” nations, according to Marshall, is that “Indian territory is admitted to compose a part of the United States.” Marshall also points to the language contained within many treaties between the US government and American Indians in which native tribes had agreed “to be under the protection of the United States.” For Marshall, these pieces of evidence indicate that, traditionally, neither the US government nor Indian nations themselves had considered their relationship to be one between foreign nations. In making the final determination on the issue of original jurisdiction, however, Marshall looks to article 3, section 8 of the Constitution, which gives Congress the right to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This passage, according to the chief justice, made a clear distinction between foreign nations and Indian tribes by listing them separately. For Marshall, then, the Cherokees made up a distinct nation, just not a foreign one.
His decision to throw the case out on these grounds, however, raised questions for the Cherokees and their allies about the political reasons for allowing the case to turn on a jurisdictional issue. Both the hostility of the Jackson administration to the power of the court and the administration’s support for Indian removal made the Cherokee Nation case politically challenging for Marshall to navigate. At the conclusion of his opinion, Marshall notes that a decision favoring the Cherokees would require the Supreme Court to control the actions of a state. Marshall notes that the “propriety of such an interposition by the court may be well questioned; it savors too much of the exercise of political power, to be within the proper province of the judicial department.” This statement reveals Marshall’s acute understanding that the exercise of such power was under intense scrutiny at the time. Democrats in Congress, with the support of Andrew Jackson, had proposed a bill that would strip the Supreme Court of its ability to review the constitutionality of state court decisions. Moreover, Jackson had based much of his campaign for president on promises to diminish federal authority and strip Indians of their remaining hold on eastern land. Knowing the political climate and the looming threats to judicial power, some Cherokees and their advocates accused Marshall of avoiding a controversial decision by citing a simple lack of constitutional authority in the Cherokee Nation decision.
Despite the dismissal of the case on jurisdictional grounds, Marshall did manage to include important contributions to the definition of native nations’ sovereignty and, perhaps most significantly, defined their relationship to the federal government within the Cherokee Nation opinion. One of the most enduring aspects of Marshall’s decision was the demarcation of native tribes as “domestic dependent nations.” This designation, articulated for the first time in Cherokee Nation v. State of Georgia, persists as the legal categorization of the relationship between native tribes and the US government. Marshall’s reasoning for creating the category of “domestic dependent nation” rested on his interpretation not only of the physical fact of native nations residing within US borders, but more importantly on the power dynamic he saw operating between the United States and native tribes. For Marshall, the United States occupied the role of “guardian” to native nations, and while independent, these nations could not persevere without the authority of the United States protecting and guiding them. Marshall gave several reasons for this assessment of the relationship. He saw the acknowledgment by native tribes of US governmental power over their interests, along with the familial language by which they addressed the nation’s president, as signs of native deference to the supremacy of the United Sates. In an irony Marshall does not highlight, the mere use of governmental systems and organizations by native tribes to seek resolution of their disputes was also evidence of their “state of pupilage.” Finally, the inability of native nations to make territorial or political deals with any country other than the US government provides for Marshall conclusive proof that their status was dependent.
Even while initiating a new status for native tribes on US land, Marshall also takes time in the opinion to recognize that the court fully acknowledges the constitutional right and ability of native nations to construct political and social systems separate from those of the United States. The Cherokees, according to the court, could govern their own affairs as a separate state. For the chief justice, the decision by the Cherokees to draft their own constitution, set up their own system of policing and adjudication, elect their own executive officials, and even declare “peace and war” against the United States is perfectly within their rights as an independent “political society.” Marshall’s apparent acknowledgement of the rights held by the Cherokees indicates that the court understood the state of Georgia to be violating these same rights. For some Cherokees, including John Ross, the Cherokee Nation opinion, though unsuccessful, provided hope that with a suitable case the Supreme Court could alleviate the pressure being placed on them by the Georgia legislature.
In the end, however, John Marshall’s opinion in Cherokee Nation v. Georgia was a decision that neither satisfied the Cherokees, who hoped to halt Georgia’s encroaching authority, nor the Jackson administration, which sought a quick removal of native peoples from southeastern lands. Marshall walked a fine political line in the Cherokee Nation decision, acknowledging that the Cherokees enjoyed a level of independence over their own police powers and land use, but also establishing the precedent that American Indian nations are distinct in their status as “domestic dependent nations” to the United States. Marshall’s categorization left the status of native sovereignty legally ambiguous. The most poignant issue for the Cherokees, however, was that the chief justice’s exploration of these issues in the court opinion was purely cerebral. Ultimately, the Cherokee Nation decision did little to resolve the question of American Indians’ legal relationship to the individual states. Marshall dismissed the case on the grounds that American Indian grievances could not be brought to the court as original jurisdiction cases. That dismissal on jurisdictional grounds consequently prevented the court from being able to consider fully the Cherokee Nation’s claims that Georgia was illegally infringing upon its sovereignty.
Scholars continue to argue over the extent to which Marshall’s ruling in the case was an act of political strategy. Marshall was intent on preserving the Supreme Court’s authority as a branch of government. Knowing that Andrew Jackson’s administration was hostile to judicial power and that the administration would likely undermine a decision that restrained the action of the state of Georgia and protected the Cherokee claims, Joseph C. Burke and others have argued that Marshall avoided adjudicating a case that could have potentially led to a weakening of the authority of the court. Others such as Tim A. Garrison have noted that John Marshall’s understanding of Indian sovereignty had shown an intellectual evolution over the course of several Supreme Court cases. Marshall’s 1810 opinion in Fletcher v. Peck suggested that natives’ rights to possession of their land may be overridden by states in certain circumstances. Johnson v. McIntosh,decided in 1823,again saw Marshall espousing the possibility that native rights to lands could be extinguished, but this time only by the federal government. By the time of Cherokee Nation, however, Marshall’s interpretation of native sovereignty had expanded significantly. For Garrison and others, Marshall’s changing understanding of native sovereignty provides evidence that Marshall truly believed native tribes could not be considered foreign nations under the Constitution and therefore lacked standing for original jurisdiction.
Though the Cherokee Nation did not get the ruling it wanted in its case against Georgia, many remained hopeful that Marshall’s acknowledgment of the Cherokees’ independence as a nation could potentially result in a favorable ruling “in a proper case, with proper parties.” Encouraged to continue litigation until a case emerged in which the court had jurisdiction, the Cherokees finally received the adjudication they had hoped for in 1832 with the decision handed down in Worcester v. Georgia. In writing the majority opinion, Marshall finally codified into law the sovereignty of the Cherokee Nation and confirmed that the tribe was protected under the laws and treaties they negotiated with the federal government, which no state had a right to subvert.
Although a major legal victory for the Cherokees, the state of Georgia refused to recognize the court’s authority in the matter and did nothing to reverse its Indian policies. The Jackson administration likewise refused to enforce the court’s decision or overturn the Indian Removal Act passed by Congress two years prior. The state of Georgia remained free to exercise authority over the native people and lands within its borders. With no tangible federal assistance, the Cherokee Nation became increasingly divided over whether to succumb to state pressure and move to reserved lands west of the Mississippi River.
John Ross and the Cherokee National Council continued to resist the pressure to remove, but in 1835, a group of Cherokees identifying themselves as the Treaty Party, signed the Treaty of New Echota with officials from the US government. The treaty ceded all Cherokee lands in Georgia and agreed to removal. Though the majority party of the Cherokee Nation challenged the legality of the treaty, it became the legal basis of their expulsion from Georgia lands. Even in the face of their near-total territorial loss, the Cherokees and other native nations in the United States persist even today in claiming and fighting for their status as sovereign nations.
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