Transcript The Constitutional Origins of Native American Tribal Sovereignty

The Constitutional Origins of Native
American Tribal Sovereignty
Howard Kaplan & Tiffany Middleton
National Council for History Education
April 22, 2016
www.ambar.org/publicedevents
In this session:
•
•
•
•
Discuss The Cherokee Cases (1830-32)
Provide background & context
Highlight major takeaways from the story
Connect to the conference theme of
“Crossing Borders”
The Cherokee Cases
Major Characters
John Ross, Principal
Chief Cherokee Nation
1828-66
John Marshall, Chief
Justice of Supreme Court
1801-35
Andrew Jackson, President 1829-37
William Wirt, U.S. Attorney
General 1817-1829
sovereignty:
/ ˈsäv(ə)rən(t)ē/
noun
“pre-eminence,” from Anglo-French
sovereynete, Old French souverainete, from
soverain, Meaning: authority, rule, supremacy of
power or rank, sense of “existence as an
independent state” is from 1715.
Source: Online Etymological Dictionary
Political climate 1830-32:
Contributing Factors
• Distinction between property rights and
sovereignty
• Fletcher v. Peck (1810)
• Cherokee Constitution of 1827
• Johnson v. M’Intosh (1828)
• Jeremiah Evarts essays (1829)
• Indian Removal Act (1830)
Cherokee Constitution of 1827
Preamble:
We the representatives of the people of the Cherokee
Nation in Convention assembled, in order to establish
justice, ensure tranquility, promote our common
welfare, and secure to ourselves and our posterity the
blessings of liberty, … do ordain and establish this
Constitution for the Government of the Cherokee
Nation.
Cherokee Constitution of 1827
Article I, Section 1:
The boundaries of this nation, embracing the lands
solemnly guaranteed and reserved forever to the
Cherokee Nation by the Treaties concluded with the
United States, …
Cherokee Constitution of 1827
Article I, Section 2:
The Sovereignty and Jurisdiction of this Government
shall extend over the country within the boundaries
above described, and the lands therein are, and shall
remain the common property of the Nation; …
Political climate 1830-32:
Contributing Factors
•
•
•
•
•
Fletcher v. Peck (1810)
Cherokee Constitution of 1827
Johnson v. M’Intosh (1828)
Jeremiah Evarts essays (1829)
Indian Removal Act (1830)
Case #1: The State v. George Tassels (1830)
• Accused of murdering Sanders “Talking Rock”
• Tried and convicted in Georgia court
• Petition to the U.S. Supreme Court
original jurisdiction
• Executed in Georgia, December 24, 1830
Supreme Court has “original jurisdiction” over:
• Disputes between states
• Cases involving ambassadors or public ministers
• Cases involving ships on the “high seas” and navigable waterways
not governed by states
• Cases involving the United States as a party, including treaties
Case #2: Cherokee Nation v. Georgia (1831)
• Seeking an injunction against laws that "go directly to
annihilate the Cherokees as a political society.“
• Wirt argued that "the Cherokee Nation [was] a foreign
nation in the sense of our constitution and law" and was
not subject to Georgia's jurisdiction.
• Georgia argued that the Cherokee Nation couldn’t sue
as a “foreign” nation due to the fact that they did not
have a constitution or a strong central government.
Case #2: Cherokee Nation v. Georgia (1831)
Though the Indians are acknowledged to have an
unquestionable and, heretofore, unquestioned right to the lands
they occupy until that right shall be extinguished by a voluntary
cession to our government, yet it may well be doubted whether
those tribes which reside within the acknowledged boundaries of
the United States can, with strict accuracy, be denominated
foreign nations. They may more correctly, perhaps, be
denominated domestic dependent nations. They occupy a
territory to which we assert a title independent of their will, which
must take effect in point of possession when their right of
possession ceases. Meanwhile, they are in a state of pupilage.
Their relation to the United States resembles that of a ward to his
guardian.
Case #3: Worcester v. Georgia (1832)
• Finally, the test case!
• Samuel Worcester (17981859), American Board of
Commissioners for Foreign
Missions, arrested for not
obtaining a permit from
Georgia to live among
the Cherokee
Case #2: Worcester v. Georgia (1832)
The Cherokee nation, then, is a distinct community,
occupying its own territory, with boundaries
accurately described, in which the laws of Georgia
can have no force, and which the citizens of Georgia
have no right to enter but with the assent of the
Cherokees themselves, or in conformity with treaties
and with the acts of Congress. The whole intercourse
between the United States and this nation is, by our
Constitution and laws, vested in the Government of
the United States.
President Jackson’s Quote
Probably apocryphal:
"John Marshall has made his
decision; now let him enforce
it! ”
Probably more accurate:
"The decision of the supreme court
has fell still born, and they find that
it cannot coerce Georgia to yield
to its mandate.“
Crossing Borders:
• Actual borders—Samuel Worcester
• Abstract borders—jurisdiction, sovereignty
• Cherokee commitment to nonviolence and
legal strategy
Thank you for joining us!