The Rule Of The United States

The debate over the legality of sovereignty and acquired lands from the native Americans, specifically the Cherokee, has long been debated. The issues involved have included treaties, land sold, and the right of the Government to physically enforce their rules on Indian land "sovereignty". This paper will examine the strategy used by the Federal Governments, the State Governments as well as those of the Cherokee Indians. The three-way relationship as well as the issues will examine how the interpretation of the Constitution changed society prior to the year of 1840.

The conditions and ulterior destiny of the Indian tribes within the limits of some of our states have become objects of much interest.( 13) It is rather our country affords scope where our young population may range unconstrained on body or in mind.(17) The Cherokee nation then is a distinct community occupying its own territory in which the laws of georgia can have no force and which the citizens of georgia(19)

In Chapter 6, Wilkins discusses how the disclaimer clauses. These clauses keep states from exercising authority on Indian land (180). They are an “important but often overlooked tool in the arsenal available to tribes to assert their own sovereignty against state threats” (177). A specific example of a disclaimer clause is Wisconsin’s territorial disclaimer of 1836 which prohibited territories or states from having any authority on Indian land (180). In Native American Church v. Navajo Tribal Council (1959) it was declared that Indian tribes actually have a higher status than states (179). This was a major victory for Indians in their fight for sovereignty. United States v. Rickert (1903) was also a win for sovereignty in that the Court prohibited South Dakota from taxing Indian land (185).After the verdict in Seminole Tribe v. Florida (1996), the balance of power between state and federal government leaned towards the states. Before this, negotiations with tribes had been conducted at the federal level and not with states (187). This was against the idea of sovereignty because now the states had more power over the tribes and could abuse that power for personal gain.

In 1823, in the case of Johnson v. M'Instosh, the argument was between two men who both held titles to the same piece of land. M'Intosh's was sold to him by the government while Johnson's was sold to him by the Plankeshaw tribe. Chief Justice Marshall ruled the land did not belong to the tribe in the first place, so they did not have the right to sell it to Johnson. The law stated that the Native Americans did not actually own the land, only the rights to live on it, and that the discovering nation was the only one allowed to sell the land. This law is not only demeaning, but outrageously inconsiderate towards the Native American tribes who should have been given full rights to the land in the first place.

In the court case Worcester v. Georgia, the U.S. Supreme Court held in 1832 that the Cherokee Indians and Samuel Worcester created a nation holding distinct sovereign powers. This decision did not protect the Cherokees from being removed from their tribal birthplace in the Southeast.

     In Georgia, the Cherokee Indians had developed a lifestyle that included schools, mills, and turnpikes. In the 1820's, under pressure from the state to give up their lands, they wrote a constitution, hired lawyers, and sued in the Supreme Court. Chief Justice John Marshall upheld the rights of the Cherokee against Georgia. However, Jackson refused to carry out the decision that ordered Georgia to return Cherokee lands. He is quoted as to have said, "Marshall has made his opinion, now let him enforce it."

In 1831, the Cherokee nation went to court against the state of Georgia. They were disputing the state’s attempt to hold jurisdiction over their territory. Unfortunately, because they are not under the laws of the constitution, the Indian’s right to court was denied. It was not until 1835 that the Cherokee finally agreed to sign the treaty, giving up their Georgia land for that of Oklahoma.

This was time of “Jacksonian Democracy” which was beneficial and appealed to the “common man.” The Election of 1828 is known as the dirtiest election of time because of the tactics used and the outcome. Andrew Jackson and John Quincy Adams were both running for a second time, last time being 1824. Those who favored John Quincy Adams were called National Republicans while those who favored Andrew Jackson were called Democratic Republicans.

Conversely, the Choctaws, Creeks, and the Chickasaws negotiated resettlement. Sadly, they never saw any of the promised federal money they were assured to receive. The Seminoles retreated into the swamp lands of Florida where from 1835 to 1842 they fought United States troops. In the end, only a few hundred eluded death or capture. Meanwhile, the Cherokee had been trying every available avenue to resist the removal policy. The immense majority of Cherokees did not want to move west, and their leadership, primarily John Ross, fought very hard against the removal. They fought the relocation in a number of ways, but there was one that was most significant. Their fight in Supreme Court brought a great deal of attention to the historians. In 1832, the Worcester v. Georgia case was handed down by the Supreme Court. This case recognized that the Cherokees did indeed have sovereign rights. It also recognized their existence as a “distinct community, occupying its own territory, in which the laws of Georgia can have no force” (The American Promise, 287). This decision was extremely important because it nullified Georgia law within the Cherokee

In chapter five of the book, In the Courts of the Conqueror, it focuses on the court case of Cherokee Nation v. Georgia. The people of the state of Georgia wanted the land that was the Cherokee reservation, especially after gold was found on it, so they created laws that would run the natives out. Among these laws was the Compact of 1802, which voided the Treaty of Hopewell stating the land belonged to the Cherokee people for all time, giving Georgia possession of the land. Twenty- four years later, a law was placed that stated that “ No Indian… shall be deemed a competent witness, or a party of any suit, in any court,” ( Echo-Hawk 96). Following the harsh martial laws being put in place, the Indian Removal Act came in 1830. If the native people refused to emigrate westward, they were also giving up federal protection, thus giving Georgians the right to use

The precursor of the two Supreme Court cases that we are discussing started in 1828 when Georgia developed laws to take away the basic human rights of the Cherokee Indians. The laws also said that the Cherokee could be removed from their lands. The Cherokee nation said in

The Cherokee Nation’s supreme court recent decision to revoke citizenship of many Cherokee citizen defended of freed afro-Cherokees has caused a recent uproar. This, albeit without complete knowledge of the subject, calls into question the view of land sovereignty and how it acts with race throughout the history after the forced migration to what is now Oklahoma. Along with Cherokee norms and more broadly forced native migrants, it is also important to regard the laws established through the Dawes Act and later expanded upon by the Curtis Act. My knowledge, is mainly on Creek culture, but much like many european states and peoples, there are similarities that can be drawn between nations. It truly seems that this split is driven by the Dawes and Curtis Acts rather than Cherokee culture as a whole, the loss of their land came from the freed slaves disability to protect themselves from land entrepreneurs, which would then drive this unfortunate disdain.

The Cherokee Nation wanted federal order against Georgia’s passed laws. The laws that were passed were extremely wrong, hateful and they stripped the power of human rights of the Tribe. The Cherokee Nation believed that Georgia was violating the 3rd article in the constitution.The 3rd Article of the Constitution describes the judicial power. The 2nd Section states that the Supreme court has the choice of listening to any case they please. They believed that Georgia was depriving them of rights to the land that they had claimed as their own. The Cherokee tribe had the rights to the land because of a previous

. . regulate commerce with foreign nations and among the several states, and with the Indian tribes.” The Constitution further enumerates these powers denied to the states in Article I section x. The state of Georgia challenged the federal government’s power over states rights, a precursor to the Civil War, when it challenged the trust relationship and the autonomy of the Cherokee. Supreme Court Justice John Marshall in three decisions (Marshall Trilogy) upheld the United States’ federal power, defined the responsibility of the doctrine of federal trust, and clarified the sovereignty of Indian nations: Johnson v McIntosh 1823, Cherokee v Georgia 1831, Worcester v Georgia 1832.

The Indian tribes did not possess all the ingredients of sovereign powers according to the Supreme Court. Cherokee Nation v Georgia (1831), granted the Indian nation sovereignty. In fact, the Supreme Court did not dispense the matter entirely citing lack of jurisdiction on the Indian tribes. According to Justice Marshall, Indian tribes were wandering hordes who did