The Cherokee Nation Cases of the 1830s

Abstract

The Cherokee Nation Cases Of The 1830s Jill Norgren “It is a serious thing, for abranch ofhistory, to lack a general treatment. It means there is no tradition, no received learning, no conventional wisdom. But tradition is needed: to define what is important and what is not, to guide students, researchers, other historians—and the general public. Withouttradition, thereisno framework, no skeleton, nothing to hang one’s ideas on, nothing to attack and revise.”1 Despite the early study of Native American cultures in school, most Americans leave high schoolknowingalmostnothingaboutthehistory ofNativeAmerican-UnitedStatesrelations.Fewer still have any knowledge ofthe law that governs thisrelationshipandtheroleplayedbytheUnited States Supreme Court in forming that law. This is neither surprising nor inexplicable. For years, writers in the fields of anthropology, history, law,andpoliticshaveassertedthatschol­ ars have dealt poorly—if at all—with subjects related to Native American-United States his­ tory. In his recent book The Long, Bitter Trail, anthropologistAnthonyF.C. Wallacewritesthat “it is remarkable how little attention has been paid to the [Indian] removal ofthe 1830s... .”2 HistorianHoward Zinn has notedthat two ofthe best-regarded studies oftheAge ofJacksondo not mentionPresident Jackson’sIndianpolicydespite its importance to his election and political vision. ContemporarysurveysofAmericanlegalhis­ torysimilarly devotelittle attentiontolegislative and judicial lawmaking as they have affected NativeAmericans, althoughlawwasundeniably the handmaiden for colonial and American na­ tional expansion in North America and contin­ uestobe importantin guidingNative AmericanUnited States relations. Most legal historians have shied from examining law in this context because they are not well-schooled in its content andbecauseits contentpresentstough questions concerning European occupation of the conti­ nent. As a result ofthis neglect and, perhaps for political reasons, federal Indian law has come to be thought of—to the extent that it is thought about at all—as a dull, complex “backwater of law” that many legislators, jurists, and scholars would willingly avoid.3 The error ofthisjudgment is amply demon­ strated by the Cherokee cases of the 1830s. In three appealstothe Supreme Court ofthe United States, the leadership of the Cherokee Republic petitioned the American jurists to address the most fundamental issues of power and rights. This article tells the story ofthese appeals, legal casesthatrequiredtheMarshallCourttodevelop an American law of real property and, in so 66 1994 JOURNAL doing, to consider nothing less than who should control the North American continent. In 1830 theleadersofthe Cherokee Republic, having internalized the ideals of American law, hired lawyers to litigate in courts of the United States. The lawyers they hired were Americans; the goal was to protect the Cherokee Nation’s internationally recognized political rights in­ cluding their national boundaries and sover­ eignty. The Cherokee soughtprotection fromthe actions ofthe people and the government ofthe stateofGeorgia. Georgianswereneighborsofthe Cherokee. Early Georgia-bound colonists had cometo the southeastern seaboard fromEngland beginning in the 1730s. As their numbers grew, the colonists came into increasing conflict with the Cherokee and other original inhabitants of the region over land and its use. The European colonists, whose standard ofliving was not nec­ essarily superior to that ofthe Cherokee, never­ theless had certain advantages in their pursuit of land. First, their numbers grew quickly, aidedby high population and apoor economyin England. Theirweapons weresuperior. Theybroughttrade and capital that permitted the creation of eco­ nomic and social networks helpful to expansion. Finally, the eighteenth century colonists had, in written language, a more efficient system of com­ munication in their far flung ventures than the Cherokee who, until the early nineteenth century, did not have a written form oftheir language. But most critically, the Cherokee and the Georgia colonists were separated by different world-views. The colonists came out of a tradi­ tion that honored individual effort and acquisi­ tiveness. Individual rights—however limited by gender, race, and class—was an emergingtheme in British colonial culture. The Cherokee, in contrast, livedbymore communalnorms. Among the Cherokee, for example, land was not held individually and was not considered a commod­ ity subject to individual commercial transaction. Very different understandings of the universe also separated Cherokee and Georgians. The colonists, drawingupon Western religious ideas, believed naturetobe God’s giftto man, subjectto man’s dominion. The colonist was both permit­ ted and expectedto tame nature and to develop it in ways appropriate to the growth of empire and the enhancement of...