Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court

Abstract

Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court STEPHEN G. BRAGAW* The Cherokee Removal Cases—Cherokee Nation v. Georgia' and Worcester v. Georgia2— stand as the dramatic last act ofthe Marshall Court era. Thomas Jefferson was long dead by the time of the removal of the American Indians from the land north and south of the Ohio River. Yet in many ways the Cherokee Removal Cases that bedeviled Marshall in his final years on the Court were Jefferson’s revenge, the first bitter fruits of policies adopted during his presidency that created the political and legal environment for the Indian Removal Act of 1830 and the Cherokee Nation litigation itself. This Jeffersonian legacy is ironic, given that Jefferson as a scholar, diplomat, and Secretary of State was an ardent supporter of Indian sovereignty and eventual citizenship. Yet these views were subordinated during his presidency to concerns of what we would term “national security,” to preserve the Union, and to advance the interests and needs of his political party. After briefly examining the political de­ nouement of the Cherokee litigation, this ar­ ticle will outline Jefferson’s views on Indian citizenship and sovereignty before turning to a study ofhow Jefferson’s administration set the stage for the Cherokee Removal Cases. The Cherokee Crisis and the Marshall Court The tragedy of the Cherokee Removal crisis resonates through time as the somber endnote to the career of Chief Justice John Marshall. Marshall devoted his thirty-four years on the United States Supreme Court to promoting a strong national union and with it a capable fed­ eral government, while building the Court’s in­ dependence and autonomy.3 Yet by late 1832, Marshall was despairing, writing to his long­ time colleague Joseph Story, I yield slowly and reluctantly to the conviction that our Constitution can­ not last. I had supposed that north of 156 JOURNAL OF SUPREME COURT HISTORY the Potomack a firm and solid gov­ ernment competent to the security of national liberty might be preserved. Even now that seems doubtful. The case of the South seems to me to be desperate. Our opinions are in­ compatible with a united government even among ourselves. The Union has been preserved so far by miracles, I fear that they cannot continue.4 All that Marshall had worked for seemed to be coming to naught. Marshall’s melancholy in September 1832 was fueled in large part by the impending reelection of President Andrew Jackson.5 Six months earlier, the Court had issued the de­ cision in Worcester6 that held unconstitutional Georgia’s detainment and arrest of Reverends Samuel Worcester and Elizur Butler for being in the Cherokee County without a Georgiaissued passport. The Court had found their detentions an unconstitutional violation ofthe federal treaties of Hopewell and Holston,7 as well as the various federal trade and intercourse acts. It was in many ways no accident that this case came before the Court in an election year. The counsel for the Cherokees was William Wirt, a long-time nemesis of Andrew Jackson and former presidential candidate, who was a close ally of Jackson’s principal opponent, Henry Clay. Clay was portraying Jackson as a tyrant, and opponent ofthe Constitution. Jackson had made a signature feature of his first term his opposition to the Court.8 The Indian Removal Act had narrowly passed Congress two years before and was very unpopular in the North.9 By ruling against the state of Georgia, Marshall was effectively leaving Jackson two choices: enforce the decision and inflame his southern and western base in the midst of the election; or refuse to enforce the decision and give proof in the north and northwest of the This cartoon of a burlesque parade being led by Andrew Jackson satirizes his administration, particularly Jackson’s controversial Indian resettlement program whereby thousands of Cherokees, Seminoles, and mem­ bers of other tribes of the southern United States were uprooted and moved to less desirable lands in the West. JEFFERSON AND THE AMERICAN INDIAN NATIONS 157 William Wirt (pictured), counsel for the Cherokees, was a longtime nemesis of Andrew Jackson and an ally of Henry Clay, Jackson's principal opponent. characterization...