Chapter Five

Cherokee Nation v. Georgia:
Shutting the Courthouse Doors

IT WAS A RAINY DAY in Georgia when they hung Corn Tassels. After midnight on a cold December night in 1830, an urgent message from Governor George R. Gilmer arrived ordering Sheriff Eberhart to execute the Indian immediately. George Corn Tassels had been convicted by the state courts of killing another Indian within the Cherokee Nation. He was prosecuted under a set of state laws enacted to harass, intimidate, and drive the Cherokee Nation out of Georgia. The Georgians wanted Cherokee land. And they wanted the Cherokee to leave. The so-called Cracker State was using all of its available legal and police powers to rid the state of Native Americans.1

Since Corn Tassels’s appeal to the United States Supreme Court had been granted, his execution should have been stayed. However, defiant and fearful Georgia could never allow the high court to review the state’s spurious race laws. Meeting in emergency session, the legislature decried “interference by the Chief Justice of the Supreme Court of the United States, in the Administration of the criminal laws of this State,” and directed state officials to execute the Indian.2 Corn Tassels had to die posthaste so Georgia could safely evade federal judicial review and continue its repugnant policies without outside interference from Washington do-gooders. Corn Tassels was hung the very next morning before a large crowd, including many Cherokee—he was lynched, really, because Georgia lacked any jurisdiction over Indian activity within the Cherokee Nation, as was belatedly determined by the federal courts. Afterward, the body was turned over to distraught relations who buried him nearby. Though legalized by Georgia laws and courts, the state’s actions in killing Corn Tassels, defying the US Supreme Court and persecuting a race of people through government machinery geared to abolish the Cherokee government, stripping the Cherokee of their human rights, confiscating their property, and, ultimately, removing and relocating them were acts of genocide rarely seen in American history.3

Sadly, the Supreme Court stood by and allowed this injustice to occur in Cherokee Nation v. Georgia, one of the ten worst cases ever decided.4 Cherokee Nation marks the first time that an Indian tribe went to federal court in a major lawsuit to protect the political, human, and property rights of an American Indian tribe and its members from destruction by a state. As you will see, this case involves an especially egregious set of facts: ethnic cleansing in the antebellum South via the machinery of the state. The Supreme Court dismissed the action, holding that it raised “political questions” that courts are not empowered to decide and, in addition, Indian tribes cannot bring suits in the courts of the United States. The Court turned its back on the Cherokee Nation during its time of need, in a decision that simultaneously denied full nationhood status to Indian tribes, prevented their access to the courts, and relegated them to a second-class wardship status under American law, all of which proved highly injurious to Indian tribes over the next 175 years. The decision spurred the national Indian removal movement and contributed to the removal of more than eighty thousand Indians from the eastern United States between 1828 and 1838,5 making the Cherokee Nation’s struggle to remain in its homeland during this chilling ethnic cleansing campaign one of many tribal histories that tug at the heartstrings.

To grasp these events, we must confront southern racism and consider the plight of minority groups when they are persecuted through the power of the state—that is, that menacing side of democracy described by Alexis de Tocqueville as “the tyranny of the majority.” What is the role of the courts when these factors come into play? This chapter explores the role of the Southern judiciary in the removal of the Indians from the eastern United States and the injustices that occur when Indian tribes are denied timely and meaningful access to the federal courts.

Today, everybody wants to be a Cherokee, and with good reason, given the rich culture and colorful history of that popular tribe. This esteemed American Indian tribe is one of the largest in the United States. I do not know how many people have proudly confided to me, over the years, that they are part Cherokee. “My great-grandmother was a Cherokee princess,” so the story goes, “but she was ashamed of being Indian so she never taught us anything about that side of our family; do you know how I can find my Indian roots?” Many notable Americans are reputed to be Cherokee, such as Elvis, Cher, Jimi Hendrix, Jesse Jackson, Rita Coolidge, Dolly Parton, Willie Nelson, Val Kilmer, Will Rogers, Oral Roberts, and Chuck Norris, to name a few.6 However, this phenomenon was not always so.

There was a time when many whites so reviled Cherokees that they recoiled at the very thought of living next door to supposed inferior Indian “savages.” Whites commenced an ethnic-cleansing program to remove the entire Indian race from the South. During this dark time, known as the removal era (1815–1846), the Cherokee bravely resisted forcible resettlement for many years. In the end, they were overwhelmed in the face of government-sanctioned racism from all quarters, backed by raw state police power, due to the lack of timely and enforceable legal protections. As a result, the Cherokee were dispossessed of their homeland and ultimately were marched at bayonet point out of their homes into temporary stockades for relocation. Hundreds hid in caves and remote mountainous regions, fleeing the Georgia militia and federal troops—just like Anne Frank and her family hiding in German-occupied Holland—but thousands more became refugees on the infamous Trail of Tears, where one-fourth of the tribe perished. It was all perfectly legal. Here is how it was done…

The Roots of the Cherokee-Georgia Conflict

The aboriginal Cherokee homeland extends throughout the mountainous Allegheny region of the American Southeast in present-day Georgia, Tennessee, Alabama, Virginia, Kentucky, and the Carolinas. This beautiful domain comprises over 40,000 square miles, bounded on the north by the Ohio River of Kentucky and Virginia and extending southward into northern Georgia and Alabama. This important tribe has a long diplomatic and legal history. In the colonial era, 20,000 to 25,000 Cherokee resided in over fifty towns throughout Cherokee territory. They greeted the Hernando de Soto expedition when it penetrated the interior in 1540, and they were courted as valuable allies by all the European colonial powers during their tumultuous struggles for hegemony over the region.7 Strategically located between territories claimed by the warlike English, French, and Spanish, the Cherokee Nation was drawn into the chronic warfare among these colonial powers. They participated in the French and Indian War (1754–1763), the Revolutionary War (1776–1782), hostilities against intruding American squatters following the Treaty of Hopewell of 1785, and the Creek War of 1812, while at the same time suffering several smallpox epidemics.

By 1800, the Cherokee numbered twenty thousand people. They occupied over forty thousand square miles of aboriginal land reserved for the Cherokee Nation in the Treaty of Hopewell, which guaranteed “the remainder of their country forever.”8 Half of the nation lay in Tennessee, while the rest was in Georgia and Alabama, with a sliver in North Carolina. The nation was governed by a national council composed of prominent chiefs and headmen from the Cherokee towns. Significant strides toward becoming a bicultural people were made under the federal policy to “civilize” Indians. In 1827, the Cherokee Nation adopted a constitutional government modeled after the United States’, with three branches and a capitol located at New Echota, close to present-day Calhoun, Georgia. During this time, several religious missions spread the Christian gospel within the borders of the Cherokee Nation, and the people shifted to an agricultural economy. After Sequoyah invented the talking leaves—the Cherokee alphabet—tribal members quickly became versed in reading and writing their language. The Cherokee government founded the country’s first tribal newspaper, the Cherokee Phoenix, in 1827, with national and international circulation.9 The Cherokee had adapted to the new American republic and were poised to prosper as an influential American Indian tribe in the southeastern United States, but a clash was brewing between this ancient culture and newcomers in the Georgia region of the Cherokee Nation.

Georgia was founded in 1732 as a penal colony, in a bizarre penological experiment to permanently rid England of its unwanted criminals and poor.10 By sending convicts to America, England’s swelling jails and harsh debtor prisons could be relieved and the inmates could provide labor and other needed services in the colonies.11 Unfortunately for the Cherokee, who lacked stringent immigration laws, north Georgia became the new home for the deportees. They were persons who were, by definition, undesirables that could not pass muster under today’s immigration standards. The idea was to resettle the convicts, then teach them how to become useful and self-supporting through labor. That laudable rehabilitation goal, like most penology experiments, failed. After African slavery was introduced, the slaves soon replaced indentured British convict labor, and the scheme to teach the former prisoners how to become industrious fell apart. The ex-prisoners became harsher slave drivers than their more aristocratic neighbors.

Since these folks lived at the very bottom of their own society—as an underclass composed of undesirable criminals or impoverished inmates—they needed someone that they could look down upon. Indians and blacks became scapegoats over whom these unfortunates could assert supposed racial superiority. Into this mixture came other poor white southerners, variously derided as “crackers” or “corn-crackers,” nicknames meant to label them as lawless, rootless rascals with a reputation as “boaster[s]” and “braggart[s].”12 Well, there goes the neighborhood. As one can imagine, early race relations among indigenous and these nonindigenous Georgians did not go well.

It was only a matter of time before the immigrants began to yearn for Cherokee land and want the Natives to leave. In the early decades of the nineteenth century, several forces supported their desire to rid the South of Indians. Cotton was king and cheap land (preferably free) was needed to grow the ever-increasing quantity demanded by the textile industry. Expansionism was the order of the day, with opportunistic states’ rights politicians driving the bandwagon. Political power in Washington shifted to the South and West following the nation’s expanding population trend. With court rulings such as Johnson v. M’Intosh, whites were seemingly right when they expropriated Indian land. After all, went the common stereotype, Indians do not farm their land like God intended. In addition, widespread racism in the South played a significant role in animating the settlers’ anti-Indian sentiments and justifying their dispossession and removal of the Indians.

As a result of these abject prejudices, federal Indian policy began to shift from the work of assimilating tribal Indians into American society, which had been the goal from the beginning of the republic, to removing them from it altogether. By the late 1820s, these factors combined to make removal of the Indians from the South a popular imperative in the Cracker State. As you will see, instead of being bulwarks against ethnic cleansing, the southern courts and the Supreme Court in Cherokee Nation v. Georgia became willing instruments in the removal process. The southern judges acceded to the will of the popular anti-Indian movement and issued opinions that fanned the flames of prejudice and undercut the Indian tribes’ struggle to remain in their homelands.

Of these mounting forces, southern racism was the most destructive and invidious element that powered the removal movement, as Anglo Americans began in earnest to consider themselves racially superior to nonwhites. During this period, southern whites were becoming increasingly concerned, according to historian Tim Alan Garrison, with developing “putative racial distinctions between themselves and blacks and Indians.”13 Race and ethnicity have always been important concepts in America, with Georgia and other southern states usually in the forefront of the good-ol’-boy brand of American racism. Southern discourse on race was strongly influenced in the early 1800s by leading scientists and intellectuals of the day, along with court opinions that tagged Indians as “savages” and blacks as “inferior.” Early southern thought developed during this period was later used to justify slavery in national debates before the Civil War.

Leading antebellum scientists, such as Dr. Samuel G. Morton and Dr. Charles Caldwell, conducted experiments and wrote texts attempting to prove the racial superiority of whites. Their findings supplied a scientific justification for slavery and the dispossession of American Indians. As president of the Academy of Natural Sciences, the influential Dr. Morton ranked the races by measuring human skulls.14 Between 1820 and 1851, he acquired hundreds of human skulls to perform bizarre eugenics studies. In Crania Americana (1839), he proclaimed whites as the master race. “This race,” according to Morton, “attains the highest intellectual endowments” and “peopled the finest portions of the earth, and [has] given birth to its fairest inhabitants.“15 Native Americans ranked very low on his pseudoscientific scale. Among their many innately inferior racial flaws, Morton found, “in their mental character the [American Indians] are averse to cultivation, and slow in acquiring knowledge; restless, revengeful, and fond of war, and wholly destitute of maritime adventure”; and his “scientific” findings asserted they are savages—that is, they have intellectual faculties “of a decidedly inferior cast” and are a “warlike, cruel and unforgiving” people who “turn with aversion from the restraints of civilised life, and have made but trifling progress in mental culture or the useful arts.”16 Blacks barely made the scale, because Morton was unsure whether they were the same species as whites. By assigning them “the lowest grade of humanity,” he supplied a supposedly scientific basis for slavery.17

Dr. Charles Caldwell also contributed to the racial “science” of the day. As founder of the University of Louisville Medical School, he sprinkled a heavy dose of barefooted religion into the pseudoscientific discourse. In Original Unity of the Human Race (1852), Caldwell argued that God created four separate races—white, brown, red, and black—and placed them into a hierarchy, with whites at the top of the scale.18 After comparing the crania of these races, Caldwell determined that red Indians were inherently inferior beings who are biologically incapable of civilization and doomed to extinction, like “wild animals.”19 According to Caldwell, “animal propensities” rule Indian morality and intelligence, and this trait renders them more “animal than of a human being.”20

These “findings” provided scientific justification for removal. If wild savages cannot be absorbed into civilized society, shouldn’t they be separated and removed from white society? They are inferiors who cannot be civilized; they must be removed from civilization for their own good. Morton and Caldwell provide classic examples of scientific racism because they lent the veneer of science to support the racist paradigm of the day. Their findings resonated with southerners since they supported notions of racial superiority, justified slavery, and allowed them to rely upon science to justify the dispossession and removal of Native Americans. Thus, Georgia’s governor George Troup was actually spouting conventional science, not simply redneck prejudice, when he maintained that Indians are fixed “in a middle station, between the negro and white man” but will gradually sink “to the condition of the former” if allowed to remain in the East.21 These ingrained attitudes on race explain anthropologist James Mooney’s observation that, unlike Spanish and French colonists who frequently lived among and intermarried with Native Americans, the English and Americans were highly race-conscious settlers. For them, racial separation was the rule of the day. Mooney described the settlers’ attitudes as follows:

[I]t never occurred to the man of Teutonic blood that he could have for a neighbor anyone not of his stock or color…Indians were regarded as an encumbrance to be cleared off, like the trees and wolves, before white men could live in the country. Intermarriages were practically unknown, and the children of such union were usually compelled by race antipathy to cast their lot with the savage.22

Georgians were filled with racial prejudice in the antebellum South. “The idea of Indians residing around and among whites,” according to historian Garrison, was simply “not acceptable to citizens in Georgia”—they wanted racial separation “until it shall please God to bleach [their] skin.”23

Against this backdrop, the seeds of the Cherokee-Georgia crisis were planted. At the outset, the new republic made too many conflicting promises about land. First, the United States signed the Treaty of Hopewell in 1785 to make peace with the Cherokee Nation and to reserve land for it in northern Georgia “forever.” That promise was promptly broken. In the Compact of 1802, the fork-tongued government promised to extinguish all Indian land title in Georgia in exchange for a cession of land in western Georgia, as soon as Cherokee title could be “peaceably obtained, and on reasonable terms.”24 This thoughtless act of expediency broke the word of the United States in the Treaty of Hopewell and prompted one of the cruelest episodes in American history.

No one asked the Cherokee Nation about the deal. It flatly refused to cede any land in Georgia.25 To support their entreaties, the federal authorities argued that whites already owned Cherokee soil under the right of discovery.26 Resting on their treaty, the Cherokee rejected the doctrine of discovery espoused in Johnson v. M’Intosh, arguing that “[o]ur title has emanated from a supreme source, which cannot be impaired by the mere circumstance of discovery by foreigners; neither has this title been impaired by conquest or by treaty.”27 Tribal leaders informed the president that the “Cherokee Nation have now come to a decisive and unalterable conclusion, not to cede away any more lands” and suggested that other arrangements be made to accommodate Georgia’s desire for land.28 In the face of a dogged, nonviolent Cherokee resistance campaign to remain in their homeland, which included pacifism and noncooperation, sophisticated legal and moral arguments, public relations, and political lobbying in the nation’s capital, the federal government balked at using force to remove the Cherokee. (That would be “unjust” and “revolting” to the sensibilities of the American people, according to President James Monroe.29)

By the late 1820s, Georgia had grown impatient.30 Governor Troup maintained that racially inferior Indians could never be assimilated or allowed to remain in Georgia. He warned in 1827 that if the federal government would not remove the Cherokee, Georgia would assume authority over them and drive them out. The state legislature bleated, “[t]he lands in question belong to Georgia—she must and she will have them.”31 It cried, “the time must come when the soil of Georgia shall no longer be imprinted with the footstep of the savage.”32 The irate lawmakers warned that nothing in the Compact of 1802 prevented Georgia from “resorting to force” and threatened the Cherokee Nation with the dire consequences of turning “a deaf ear to the voice of reason and of friendship.”33 The shrill cries became absolutely hysterical with the discovery of gold in Cherokee country. In 1828, the Cracker State mobilized. Emboldened by the election of Indian fighter and removal advocate Andrew Jackson to the presidency, Georgia launched its legal scheme to bring about a final solution to the Indian question. It used the law to force the Cherokee Nation to relinquish its sovereignty, lands, and gold, and make life so intolerable and repressive that the recalcitrant Indians would become demoralized and emigrate to a more racially tolerant place.

Extending the Law of the Crackers over the Cherokee Nation

The legislative blitzkrieg began in the late 1820s with the enactment of a series of anti-Indian laws. Georgia’s 1827 Indian policy called for an all-out assault on the Cherokee Nation.34 It formulated what was to become “the legal ideology of removal,” in the apt words of historian Garrison. The policy began by protesting the federal government’s failure to extinguish Indian title despite repeated appeals by Georgia. Next, it provided a disingenuous and self-serving rationale for the state’s ownership of Indian land. The rationale rested, first and foremost, on the bald assertion that “force becomes right” under a homegrown, backwoods theory of “domain and empire.”35 Georgia’s theory posited the false notion that British law only allowed Indians to possess land with permission by the Crown and assumed that this royal prerogative passed to Georgia as Britain’s heir (a dubious presumption given the humble origins of the penal colony). Guided by these notions, the policy asserted that Georgia may legally exercise sovereignty over the lands and citizens of Indian nations within her chartered limits and take their land, since Indian title is “only permissive and temporary” under American law.36 The policy urged the federal government to extinguish all Cherokee title to land in Georgia, protested the adoption of the Cherokee Constitution of 1827 by the Cherokee Nation, and announced that Georgia would not recognize that government.37 In response to northern moral concerns, a more humanitarian gloss was placed on the mean-spirited policy in 1827. Georgia argued transparently that removal is for the Indians’ own good and began burping out a bevy of anti-Indian race laws to bring the Cherokee Nation to its knees.38 These Jim Crow laws are part of the dark side of the law. They illustrate such ill will and hostility against Indian tribes witnessed during much of the nineteenth century that the Supreme Court was prompted to oust the states from the administration of Indian affairs in later years to protect the tribes, because the states had become—in the eyes of the Supreme Court—their “deadliest enemies.”39

To prevent Indian opposition to Georgia’s policy, several statutes were enacted to prevent their access to state and tribal courts. The 1826 law stated: “no Indian and no descendant of an Indian, not understanding the English language, shall be deemed a competent witness in any court of justice created by the constitution or laws of this State.”40 This bar was expanded two years later:

[N]o Indian, or descendant of an Indian, residing within the Creek or Cherokee nations of Indians, shall be deemed a competent witness, or a party to any suit, in any court created by the constitution, or laws of this state, to which a white man may be a party.41

Nor could Cherokees resort to their own courts, since Georgia declared all Cherokee laws null and void, prohibited the application of those laws in Georgia courts, and outlawed the use of Cherokee courts for any purpose.42

Other civil liberties were restricted in laws that isolated Cherokees from contact with other peoples. An 1828 law prohibited neighboring Creek Indians from entering Georgia without a permit since they were seen as supportive of the Cherokee cause.43 White males could not reside in the Cherokee Nation without a permit issued only after a loyalty oath was sworn.44 To discourage commercial intercourse, contracts between Cherokee Indians and white persons were declared null and unenforceable.45 As you will see below, the rights of assembly and property ownership were abolished under increasingly harsh martial laws.

The legislature extended Georgia laws over the Cherokee Nation in three annexation laws. The first annexed part of the Cherokee Nation lying within two counties.46 Remaining portions of Cherokee territory were gobbled up by subsequent extension laws that declared all Cherokee laws in the annexed territories “null and void, as if the same had never existed.”47 To fill the void, martial law was provided by magistrates specially empowered to hear legal matters in the annexed territory. They could “call out a sufficient number of militia…to aid and protect [them] in the execution of [their] duty.”48

Removal—the final solution—crept into the picture in an 1828 resolution of the Georgia House of Representatives. It instructed the governor to ask the president of the United States to remove “every Indian, whether Creek or Cherokee, who may be found residing within” a boundary area between the two nations.49 To encourage removal, Georgia outlawed the use of Cherokee law or courts to prevent or punish Indians from “enrolling as an emigrant or actually emigrating, or removing from said nation” or selling or ceding their land to the United States.50 On the national level, Georgia’s laws were supplemented by its incessant urging that the federal government remove the Indian nations across the Mississippi River. The branches of the federal government began lining up in the late 1820s. A receptive President John Quincy Adams lamented that Indians refused to assimilate or accept Christianity and were instead intent on forming independent sovereignties. His secretary of state, Henry Clay, added that Indians were “inferior to the Anglo-Saxon race” and “not worth preserving”; to him, “their disappearance from the human family will be no great loss to the world.”51 In the late 1820s, government plans for removing the Cherokee and other Indian tribes were presented to Congress by the administration, complete with a chilling deportation list that inventoried the tribes, tallied their populations and acreage, and slated 129,266 Native Americans for emigration.52

Congress finally agreed to act. With the election of President Andrew Jackson in 1828, it passed the Indian Removal Act of 1830, despite strong opposition by the Cherokee Nation and its supporters, authorizing the president to make the necessary arrangements.53 Though emigration was supposedly voluntary, the Indians were advised that “refusal to emigrate meant the end of federal protection and abandonment to state jurisdiction.”54 President Jackson made it clear that tribal sovereignty in the East was quickly coming to an end, and tribes were no longer welcome in that part of the nation.

By the time the national Indian Removal Act was signed into law, Georgia’s removal program was already in full swing. To hamper Cherokee resistance, the assembly of tribal officials was criminalized by a law that prohibited,

any person, or persons, under colour or pretense, of authority from said Cherokee tribe, or as head men, chiefs, or warriors of the tribe, to cause or procure by any means the assembly of any council, or other pretended Legislative body of the said Indians, or others living among them, for the purpose of legislating, (or for any other purpose whatever).55

The offense was punishable by imprisonment at hard labor for four years. (Georgians had by this time forgotten their penal roots and were running harsh prisons of their own.) To enforce Georgia’s growing body of anti-Cherokee laws, a special paramilitary force was created—the infamous Georgia Guard. It’s mission was to enforce state law within the Cherokee Nation, arrest violators, “protect” Cherokee gold mines, and otherwise harass and intimidate the Indians.56

Georgia was now poised to confiscate Cherokee land, water, and gold. This was accomplished by two remarkable statutes. The first created a lottery system for disposing of Cherokee land.57 It divided the Cherokee Nation into four sections, and subdivided each into ninety-six districts containing plots of various sizes. The plots were surveyed under military protection and any interference was strictly prohibited. The lottery allowed white males to draw lots for the land. Indian homes were supposedly protected, but no Indian could “rent, sell or convey, his right of occupancy to any person or persons, unless it be to the government of this State, or of the United States,” or to a lottery winner.58 No compensation for taken Cherokee land was provided. As elated lottery winners entered the Cherokee Nation to take possession of the land, “some Cherokees fled in bewilderment,” according to historian Walter Conser, while “others stubbornly refused to leave their homes and lands until they were evicted.”59

The same law also turned regulation of navigable waters within the Cherokee Nation over to the state. The second law confiscated Cherokee gold mines. They were declared “the property of Georgia.”60 The governor was directed to “take immediate possession of all the gold, silver and other mines…in the said Cherokee country,” by “military force” if necessary. Unauthorized digging by any “white man, Indian, negro or mulatto,” or slave was prohibited (the latter could “be confiscated and sold”). Now, all that remains is to run out the redskins, if only the feds would put military teeth behind their Indian Removal Act.

By 1830, the crisis came to a head. The Cherokee government had been outlawed and its citizens stripped of their civil liberties and property. The Georgia Guard was goose-stepping its way into the Cherokee Nation, intimidating Indian residents, making arrests, seizing their land, and stationing guards at confiscated gold mines. The Cherokee Nation was overrun by prospectors, surveyors, militia, lottery winners, squatters, and other trespassers. Chaos and intimidation ruled the day. The Cherokee government protested the anti-Indian laws and trespasses, stating that “the Cherokee people [are not] prepared to submit to [Georgia’s] persecuting edict” and appealed to the United States “for justice and protection.”61 Federal troops were dispatched to the tumultuous region, but withdrew as soon as the state complained about their presence, leaving the Cherokee Nation vulnerable to trespassers and the Georgia Guard. Were Georgia’s actions legal?

In the Courts of the Crackers: Enforcing Georgia’s Extension Laws

With all other avenues closed, the Cherokee leaders retained legal counsel to seek relief in the US Supreme Court. As the struggle spilled into the courts during the summer of 1830, the Cherokee Phoenix explained:

If we are to be removed…by the United States…we wish to leave in the records of her tribunals, for future generations to read, when we are gone, ample testimony that she acted justly or unjustly.62

William Wirt, a famous litigator and former US attorney general, was picked to direct the legal offensive. As Wirt was figuring out how to get the Cherokee cause before the Supreme Court, the Georgia Guard arrested George Corn Tassels in Hall County, a chaotic place in the annexed region where Indians were frequently detained and incarcerated. Under Wirt’s direction, Corn Tassels’s lawyers challenged the constitutionality of the state’s actions, making Georgia v. Tassels (1830) the perfect vehicle for taking the matter to the high court.63

In Tassels, the defendant contended that the extension laws were repugnant to the Constitution, because they violated the Treaty of Hopewell, which was the supreme law of the land, and infringed upon the sovereignty and right of self-government of an independent Cherokee Nation.64 In reply, the state denied the Cherokee held any political or property rights. It asserted, first, that “Indian tribes are inferior, dependent, and in a state of pupilage to the whites,” and, second, that the treaty is “void, because the general government had no right to treat with Indians within the limits of the State.”65

The state court accepted Georgia’s bigoted states’ rights argument and upheld Georgia’s laws in a bizarre opinion that turns the foundational principles of modern federal Indian law on their head. At the outset, the judges complained that the issue would never have surfaced except for outside political agitation, but promised that it would not influence their decision.66 Relying on Johnson v. M’Intosh, they ruled that Cherokee sovereignty and land rights were destroyed by the doctrine of discovery and, as heir to Great Britain, Georgia could appropriate land belonging to the Indians.67 Shucks, since Georgia already owns the disputed lands, it must have jurisdiction over them.

To support its circular logic, the Tassels court held that Indian tribes are not considered sovereignties by the US Constitution and the federal government erroneously entered into treaties with them.68 Even if the United States could enter into Indian treaties, they become void, according to the court, when they conflict with states’ rights or property.69 Furthermore, the court announced that Cherokees are under a “state of pupilage” by Georgia and no treaty “could change that relation” or provide them with “the right of independent self-government.”70 Thus, treaties cannot obstruct “the act of Georgia, extending jurisdiction over the country in the occupancy of the Cherokee Indians.”71 In coming to this conclusion, the court found it patently unfair that everyone else took Indian land, “but so soon as the State of Georgia pursues the same course, a hue and cry is raised against her, and a lawyer residing near 1,000 miles from her borders has been employed to controvert hers and obstruct her laws.”72 Furthermore, Indians are merely “a savage race, and of imbecile intellect,” according to the court, “incapable of complying with the obligations [of] civilized society.”73 The state laws were upheld and Corn Tassels was sentenced to death.

The idea of halting the state’s onslaught against the Cherokee Nation never occurred to any of the Georgia judges. Their Tassels opinion espoused a dark southern view of Indian rights—an amoral world where aboriginal affairs are governed exclusively by the states without federal interference, in which Indians are an underclass; a place where treaties are void and tribes hold no political, property, or human rights. In this dark vision, states wield “plenary” power over Indians—unrestrained by constitutional limitations—because they are savages with an “imbecile intellect,” incapable of civilization, and exist only under state tutelage as wards of the state without rights of citizenship. No one can accuse the judiciary of holding enlightened views in this case.

Nevertheless, Tassels did pave the way for appeal to the US Supreme Court. On December 12, Chief Justice Marshall granted a writ of appeal and ordered Governor Gilmer to appear before the Supreme Court. The appeal alarmed the state government. Governor Gilmer called the legislature into an emergency joint session. Preaching to the hastily assembled choir, he ranted that Marshall had no jurisdiction to intrude on Georgia or control its courts, and he promised to disregard Marshall’s order. Outraged, the legislature directed Gilmer “to disregard each and every mandate” of the Supreme Court and to “resist and repel, any and every invasion, from whatever quarter upon the administration of the criminal laws of this State.”74 The disgruntled lawmakers vowed not “to become a party” to the appeal and ordered Corn Tassels’s immediate execution—provocative acts calculated to moot the appeal, defy and forestall federal judicial review, and create a constitutional crisis.75 Corn Tassels’s death ended the appeal, but not the Cherokees’ resolve to seek Supreme Court review. Three days later, Wirt amended the Tassels pleadings and refiled the case as an original action in the Supreme Court brought by the Cherokee Nation against the State of Georgia, entitled, Cherokee Nation v. Georgia.76

Cherokee Nation v. Georgia: How the Cracker State Got Away with Injustice

The Cherokee Nation appeared before the Supreme Court as a “foreign state, not owing allegiance to the United States, nor to any state of this union.”77 Its lawsuit sought to protect Cherokee sovereignty, self-government, and Indian-owned land derived “from the Great Spirit” from encroachment by Georgia.78 By challenging the constitutionality of Georgia’s extension laws—together with their underlying legal doctrines, fictions, and prejudices—the lawsuit called the foundation of colonialism into question.

The petition declared that Georgia lacked legal authority to seize Chreokee land. It asserted that the Georgia Charter and the doctrine of discovery do not clothe the state with the power to usurp Indian land, because these authorities are at odds with natural law. How can sailing along the coast possibly operate to appropriate Cherokee title, the petition asked? Cherokees “never assented” to the discovery doctrine; nor is it “a principle of the natural law, or obligatory on them.”79 Similarly, Georgia cannot disturb Cherokee self-government. British and American law never granted that authority to Georgians, and the numerous treaties between 1775 and 1819 recognize the Cherokee Nation as a “sovereign and independent state” with a right of self-government free from state interference.80 The petition pointed to the Cherokee constitution, courts, laws, schools, and churches, and described how the people of the nation have become “civilized Christians and agriculturalists.”81 We are not savages, it urged; the Cherokee are just like “their white brethren around them.”82 Relying on American law, the petition reminded the Court that “treaties are the supreme law of the land; and all judges are bound thereby”—no state may pass laws impairing treaties.83 Taking aim at Georgia’s extension laws, the petition asserted that their invidious purposes were

to parcel out the territory of the Cherokees; to extend the laws of Georgia over the same; to abolish the Cherokee laws, and to deprive the Cherokees of the protection of their laws; to prevent them, as individuals, from enrolling for emigration, under the penalty of indictment before the state courts of Georgia; to make it murder in the officers of the Cherokee government to inflict the sentence of death in conformity with Cherokee laws, subjecting them all to indictment therefore, and death by hanging; extending the jurisdiction of the justices of the peace of Georgia into the Cherokee territory, and authorizing the calling out of the militia of Georgia to enforce the process; and, finally, declaring that no Indian, or descendant of any Indian, residing within the Cherokee nation of Indians, shall be deemed a competent witness in any court of the state of Georgia, in which a white person may be a party, except such white person who resides within said nation.84

The petition decried the United States’ failure to protect the Cherokee Nation from these unconstitutional acts, telling the Cherokee instead that federal troops “would co-operate with the civil officers of Georgia in enforcing their laws upon them.”85 The petition also informed the Court of the hanging of Corn Tassels in defiance of the chief justice in order to evade judicial review; recounted the most recent bevy of state laws enacted to confiscate Cherokee land and gold mines, and to abolish their right to assemble, including the stationing of armed forces at Cherokee gold mines; and, finally, it pointed out ongoing acts of violence and injustice by Georgia officers and agents within Cherokee territory under color of state law.86 Georgia’s laws are intended to force the Indians from their territory, the Cherokee Nation asserted, in direct violation of the Cherokee treaties and the US Constitution.

The lawsuit requested the Supreme Court to declare Georgia’s laws null and void and enjoin the state “from interfering with the lands, mines and other property, real and personal, of the Cherokee nation, or with the persons of the Cherokee people.”87 These actions would “annihilate the Cherokees as a political society, and…seize, for the use of Georgia, the lands of the nation which have been assigned to them by the United States in solemn treaties repeatedly made and still in force.”88 Appealing to the conscience and sense of justice of the Court, the Cherokee sought “to be left in the undisturbed possession, use, and enjoyment of [their property], according to their own sovereign right and pleasure, and their own laws, usages, customs, free from any hindrance, molestation, or interruption by the state of Georgia, her officers, agents, and servants.”89

How could the courts of the conqueror entertain such claims? Like the slaves in the Dred Scott case, Indians were at the courthouse doors asking a court that had not previously even recognized their standing to sue to strike down laws and principles that subjugated them. Furthermore, Georgia warned it would not participate in or obey the Supreme Court, creating a potential constitutional crisis. These factors sorely tempted the Marshall Court to sidestep the issues. After all, under Article III of the US Constitution, no one could sue Georgia due to its sovereign immunity from suit secured to the states by the Eleventh Amendment. The only way this could be done was if the Cherokee Nation was treated as a foreign nation because foreign nations are not barred from suing states.90 The Cherokee Nation therefore had vital jurisdictional, as well as substantive, reasons to appear as a foreign nation, especially since Georgia had successfully blocked other avenues for Supreme Court review.91 Thus, the nation’s legal status became a central issue as the case came before the six black robes on the Marshall Court.

The Court voted 4-2 to deny the Cherokee Nation standing to sue Georgia in four different opinions. A majority agreed the nation was a state, with the right of self-government and owned-property rights that could not be disturbed, but did not consider it a foreign state. Jurisdiction was also denied because the majority considered the request to protect Cherokee self-government from interference by Georgia to be a “political question” courts may not decide.

Chief Justice Marshall acknowledged that the nation is “a distinct political society, separated from others, capable of managing its own affairs and governing itself,” and determined that federal treaties and laws “plainly recognize the Cherokee nation as a state.”92 However, he did not consider it a foreign state for purposes of suing a state of the union in federal court, despite the general rule that “nations not owing a common allegiance are foreign to each other.”93 Resorting once again to bare racial stereotypes, Marshall denied that the founders intended to allow Indian tribes to sue in federal court as foreign states. Considering Indian “habits and usages,” he wrote, the framers of the Constitution did not have “tribes in view, when they opened the courts of the union to controversies between a state…and foreign states”; nor did it enter “the mind of an Indian” to use American courts because “[t]heir appeal was to the tomahawk.”94

Justice Thomas Johnson rejected Cherokee nationhood status on racial grounds. Admitting no concern for “the morality of the case,” he disagreed that Indian tribes are sovereignties because they are, in his eyes, “so low in the grade of organized society.”95 To him, tribes were a lowly “race of hunters connected in society by scarcely a semblance of organic government” and composed of a “restless, warlike, and signally cruel” people with “inveterate habits and deep seated enmity.”96 How could “any nation on earth treat them [as] a member of the community of nations?” he asked.97 Like the Tassels decision, Johnson expressed deep-seated racial prejudice and animosity throughout his opinion—denigrating Cherokee land claims (their territory is “allotted to them as a boon, from a master or conqueror”),98 scoffing at their nationhood (“the law of nations would regard [them] as nothing more than wondering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state”),99 and chiding them for going to court (they should not “appeal to any arbiter but the sword”).100 This tirade was joined by Justice Baldwin, who warned that if we allow Cherokees into the courthouse, “countless tribes…will rush to the federal courts in endless controversies, growing out of the laws of the states or of congress.”101

Upholding the doctrines of colonialism, Marshall denied that Indian nations can be considered foreign nations under American law, because the indigenous nations “occupy a territory to which we assert a title independent of their will” and “they are in a state of pupilage” in their relations to the United States that “resemble that of a ward to his guardian.”102 In this imperialistic setting, he coined the phrase “domestic dependent nations” to denominate Indian tribes—a distinctly second-class political status since it meant that Indian tribes would not have attributes of external sovereignty in international relations and are nations subjugated by and subsumed into the domestic political system of the United State.103 The holding also incorporated the trust doctrine first articulated in Victoria’s law of nations into American law through Marshall’s “state of pupilage” language, spawning the federal Indian trust doctrine—another second-class political status for Indian wards. Both of these principles remain foundational principles of federal Indian law today. Though some commentators assume they benefit Native Americans, it must be remembered that they were not espoused in Cherokee Nation to help Indian tribes, but rather to deny access to the courts.

Significantly, two justices considered the Cherokee Nation a foreign state and would have ruled in its favor.104 Because the majority did not consider it a foreign state, the case was dismissed for lack of jurisdiction. The Court held that “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.”105 It also described Georgia’s assault on Cherokee sovereignty as a political question beyond “the proper province of the judicial department.”106 Turning a blind eye to the destruction of Cherokee self-government, Marshall sidestepped the issue with the following platitudes forever etched in records of the nation’s judiciary:

If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.107

Foregoing an opportunity to prevent manifest injustice, the Supreme Court ducked the issue in Cherokee Nation. In an opinion dominated by prevailing prejudices against Native Americans, the court closed its doors to the Cherokee during a pivotal time in their struggle to remain on their land as an independent people. By sending a signal that now all branches of government were lined up against the Cherokee people, the black robes paved the way for dispossession and forcible removal and became part of the process.

The Impacts of Cherokee Nation on Native Americans

The Cherokee Nation decision had several devastating impacts on Native Americans, most of which linger today. The most immediate was on the tribes in the South, because it encouraged the dispossession and removal fervor sweeping the region. Encouraged by the decision, other states joined Georgia in extending their laws over the Cherokee Nation and other Indian tribes in the South to rub out their independence and force them to leave.

By closing its eyes to bald aggression against a Native American minority, the Supreme Court sent a larger message to Pilgrims everywhere that was to guide their relations with Indians during the rest of the nineteenth century: Indian tribes, in Marshall’s words, “cannot maintain an action in the courts of the United States.”108 Following that ruling, the tribes ceased being litigants in the courts of the conquerors as Manifest Destiny ran its course. They were not welcome in the courthouse. Neither were their members, individual Indian wards of the government who, as noncitizens, were without the right to use American courts. It was not until the 1890s that Indian tribes began to reappear in the federal courts. Seemingly without reliable access to court, the tribes were forced to cede their land and sovereignty to land-hungry states or fight for their rights. In creating that perception, if not that reality, Cherokee Nation did far more to advance the goals of Manifest Destiny than divine intervention, as violence, warfare, and intimidation became coequal partners with the law as the principal means for moving indigenous peoples aside.

Cherokee Nation’s guardianship doctrine and “domestic dependent nation” status were not espoused to help the Cherokee Nation, but to avoid ruling on its case. These doctrines have become cornerstone principles of federal Indian law since 1831. As we will explore in subsequent chapters, they often worked hardships on Indian tribes until advocates in the modern era of federal Indian law converted them into a shield as tools to protect Native American sovereignty, property, and human rights. On the dark side, trusteeship is a common feature in colonialism that means the government owns title to your property and guardianship is easily abused when unchecked by the courts—the government “can do things” to wards of the state that it could never do to citizens. In modern federal Indian law, the guardianship principle is supposed to inure to the benefit of the wards, as I will discuss in chapter fifteen. In that context, whenever the government is called upon by Native Americans to live up to the fiduciary standards of conduct normally imposed upon trustees in its management of Indian trust property or resources, federal agencies strenuously deny any trust obligation or responsibility to act like a trustee.109 And what do we make of the “domestic dependent nation” status of American Indian tribes? At first blush, the loss of independence and the normal attributes of nationhood are obvious. For those Indian tribes who had not been conquered or, for that matter, who had not even encountered whites to any significant degree by 1831, the imposition of this subordinate political status by the Supreme Court was conquest by judicial fiat, especially when done without their consent to join the United States duly expressed in appropriate treaties. The second-class nature of this governmental status within our political system is seen today in the ease by which the Supreme Court trims the sovereignty rights and jurisdiction of tribal governments in recent years, making it painfully evident that the existence, scope, and nature of tribal sovereignty in the United States is vulnerable because it depends upon judicial fiat in the courts of the conqueror.110

Our immediate concern, however, is the struggle of the Cherokee people. Southerners rejoiced at the Cherokee Nation decision. Georgia had successfully bullied the high court and was now free to continue its vitriolic Indian policy. Alabama quickly jumped into the fray as Cherokee refugees fled into the Creek Nation within that state by enacting its own extension laws to assume jurisdiction over the Creek Nation. Relying heavily upon Cherokee Nation and the doctrine of discovery, the Alabama Supreme Court upheld those laws in Caldwell v. State (1832) in an opinion that also provided a legal justification for Indian removal.111

In Caldwell, a white farmer was charged with murdering an Indian in the Creek Nation. He asserted that Alabama’s extension law was unconstitutional because it interfered with the sovereignty of the Creek Nation and the United States’ power over Indian affairs. The Court rejected Creek sovereignty as no more than a “high pretension to savage sovereignty.”112 Applying Southern notions of international law, it held that Indian tribes are too savage and “ignorant of the customs and usages of civilized society” to have sovereignty and observed that treaties with these inferiors might as well be done with a “beast of the…forest.”113 They do not even own their own land, under Johnson v. M’Intosh, the court explained; and state extension laws are needed to carry out the Indian wardship principle of Cherokee Nation.114 Such laws may legally destroy tribal sovereignty because whites conquered the tribes and obtained their national rights, the court reasoned, even though it admitted most tribes had never in fact been conquered.115 Fiddlesticks. We would have conquered them if they resisted.

The moral consequences of abject colonialism were completely lost on the Caldwell court. Siding steadfastly with the colonizers, it asserted “our forefathers were justifiable in clearing away the forests and cultivating the fields formed by their industry, and in bringing the Indians into subordination to them…let us continue to act in the same way.”116 If Indians disliked living under the thumb of the state, they should leave. After all, Alabama “has looked with the deepest solicitude” upon “the removal of the Indians, and the opening of the territory occupied by them to a valuable population” and “to the time…when the whole state would be freed from its Indian population.”117 These inferiors are naturally bound for extinction, in any event, the Alabama judges predicted, and will be replaced by cheerful “cities, smiling fields, and happy habitations.”118 The Court rejoiced that “our happy political institutions and the religion of the Bible have displaced their barbarous laws, and wretched superstitions” and ended its opinion on a self-righteous religious note: “Are we not compelled to admit that the superintending providence of that Being who first formed the earth, is to be seen in this mighty change?”119

Thus, encouraged by Cherokee Nation, the Alabama courts eagerly lined up with the Christian God, the Georgia judiciary, and Congress to force Indians from the South. To evade Supreme Court review, Alabama did not expedite Caldwell’s execution, like Georgia. Instead, the governor pardoned him to moot any possible appeal from the Caldwell decision.120 In 1836, the United States army marched 14,000 Creek Indians out of Alabama to Indian Territory in present-day Oklahoma.

Cherokee resistance remained steadfast in the face of these crippling setbacks. William Wirt returned to court shortly after Caldwell was decided in a last-ditch legal effort to seek judicial protection. On this occasion, the Georgia Guard arrested several missionaries living in the Cherokee Nation without a state permit. They were convicted and sentenced to four years in prison at hard labor under Georgia law. The missionaries challenged their conviction on the same grounds used in Cherokee Nation. Their appeal became a vehicle for bringing another test case to the US Supreme Court, where Wirt reargued the merits of the Cherokee cause in the famous case of Worcester v. Georgia (1832).121 This time, Wirt scored an astounding victory.

Worcester came in the twilight of Chief Justice Marshall’s distinguished career, at a time when his thinking about the place of American Indians in society and law had fully matured. By 1832, he had seen—to his surprise and dismay—how his prior rulings in Johnson and Cherokee Nation had been used to gravely harm American Indians. As you will see, Marshall was now prepared to address the Cherokee issues head-on and set a path for correctly understanding Native American rights.

Deeply moved by Wirt’s eloquent and forcible argument in Worcester, the Marshall Court struck down Georgia’s extension laws.122 Rejecting the South’s dark version of Indian law, the Marshall Court ruled that Georgia had no right to tread on the sovereignty of the Cherokee Nation or take its land. Abandoning derogatory racial stereotypes, the majority simply described American Indians as “a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws.”123 The landmark decision ridiculed and restricted the doctrine of discovery as “an extravagant and absurd idea.”124 The king’s royal charters and the doctrine of discovery do not transfer Indian land title to anyone, the Court ruled. They simply granted England and its successor, the United States, an exclusive right to purchase such land as the Natives were willing to sell, and nothing more; and this power does not affect tribal sovereignty, much less empower states to govern Indian tribes or intrude into their self-government.125 Laying to rest Georgia’s pompous claims to “domain and empire,” the Court observed that the goal of Georgia’s royal charter was simply to enable England’s incarcerated poor “to gain a comfortable subsistence by cultivating lands in the American provinces,” and this charitable purpose is “incompatible with the lofty ideas of granting the soil, and all its inhabitants from sea to sea” to the penal colony.126

Worcester established the principle that the borders of Indian reservations form an inviolate barrier to intrusion by state laws. The Court stated, “[t]he treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried out exclusively by the government of the union.”127 Thus, Georgia’s laws were declared a nullity, because the “Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial” and treaties made with Indian nations are “the supreme law of the land.”128 The Court concluded:

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 acts of congress.129

Accordingly, the Court reversed the missionaries’ conviction and ordered their release. The ruling no doubt absolved the conscience of many of the justices for encouraging the removal fervor in Cherokee Nation. A relieved Justice Story wrote shortly afterward, “[t]hanks be to God, the Court can wash its hands clean of the inequity of oppressing the Indians and disregarding their rights,” adding, “[t]he Court has done its duty. Let the Nation now do theirs.”130

Unfortunately, the belated decision did the Cherokee little good, for it came too late in the day to deter the Indian removal movement. By 1832, federal removal policies were entrenched. Upon learning of the Worcester decision, President Andrew Jackson reputedly said, “John Marshall has made his decision, now let him enforce it” and did nothing to enforce the judgment.131 Georgia, of course, ignored the ruling and defiantly refused to release Samuel Worcester and his fellow missionaries from prison. The rest of the South had already lined up under the green light given in Cherokee Nation. In fact, one southern court repudiated Worcester in State v. Foreman (1835).132

Foreman arose in 1835 during a period of turmoil and confusion within the Cherokee Nation. Tribal unity was at last beginning to crumble under incessant removal pressures, the invasion of frenzied white trespassers, and the oppressive conditions of Native life under southern rule. By then, their only judicial champion, John Marshall, had died. His court was now under the leadership of Chief Justice Roger Taney, a stalwart slavery proponent and Jackson appointee. Against this backdrop, one Cherokee was charged in Foreman with murdering another in the Tennessee portion of the Cherokee Nation—a reputed political assassination of a removal advocate. The prosecution was brought under a state law extending criminal jurisdiction over the Cherokee Nation. To breathe life back into the southern doctrines of Indian law rejected in Worcester, the prosecuting attorney attacked that decision as being contrary to all of Marshall’s prior holdings and repeated the old arguments against tribal sovereignty made in Tassels, Caldwell, and Cherokee Nation. In a rambling 2-1 decision, the Tennessee Supreme Court embraced the arguments. Chief Justice Catron handed down the decision of the court in one of the most racist judicial opinions ever written.

Describing Pope Alexander VI’s papal bull of 1493 as the law of nations, Catron contended that none of the inhabitants of the New World “were allowed any rights” under international law and casually observed that European claims in the New World were “enforced by the sword.”133 North America should “be peopled by Europeans,” he declared, rather than be “the haunt of savage beasts, and of men yet more fierce and savage.”134 We cannot allow “mere wandering tribes of savages” to own land, because they are infidels without rights in Christian courts, as held by Lord Coke in Calvin’s Case.135 Absolutely livid with hate, the court ranted that nonagricultural peoples “deserve to be exterminated as savage and pernicious beasts.”136 Embracing the racist element of Manifest Destiny, Catron predicted that Indians will melt away “under the influence and superior powers, mental and moral, of the white man, as did the savages of Europe, Asia, and Africa”—they must “accept a master or perish.”137 How can Cherokees possess sovereignty and soil when “North American savages…had no government”? Rejecting Worcester, the court reinstated the harsh settler-state law of the South:

Our claim is based on the right to coerce obedience. The claim may be denounced by the moralist. We answer, it is the law of the land. Without its assertion and vigorous execution this continent never could have been inhabited by our ancestors. To abandon the [doctrine of discovery] now is to assert that they were unjust usurpers, and that we, succeeding to their usurped authority and void claims to possess and govern the country, should in all honesty abandon it, return to Europe, and let the subdued parts again become a wilderness and hunting ground.138

Despite Worcester, the court held that Indian treaties are void if they conflict with state’s rights.139 In short, pejorative racial stereotypes of American Indians controlled the Foreman decision.

Thus, the courts of Tennessee, Georgia, and Alabama enthusiastically supported the South’s legal framework for dispossessing the Cherokee people and destroying their government. The dark trilogy of legal opinions in Foreman, Caldwell, and Tassels not only fanned the flames of prejudice against Native Americans, but set an ugly malignant tone for anti-Indian racism in the South. This trilogy became the de facto law of the South in flagrant disregard for the belated decision in Worcester. In the meantime, Indian tribes throughout the East were being relocated, one after the other, to Indian Territory far beyond the borders of existing states under the federal removal policy.

Demoralized and disillusioned by the overwhelming removal pressures that were engulfing the Cherokee Nation, the people’s resolve faltered and a few succumbed. Under constant harassment by the Georgia Guard, who arrested and detained Principal Chief John Ross without charge and seized the Cherokee Phoenix, national unity began to splinter. While the Ross government was negotiating with President Jackson to find a compromise solution that would allow the Cherokee to remain in their homeland, a tiny removal faction of individual Cherokees approved the administration’s Treaty of New Echota. Even though this “treaty” was not entered into by the Cherokee government, the bogus document quickly supplanted all prior treaties entered into between the Cherokee Nation and the United States. Signed on December 29, 1835, it purported to require all Cherokee to “remove to new homes within two years.”140 A petition protesting the so-called treaty was signed by nearly 17,000 Cherokee and the tribal government bitterly repudiated the document. However, in the eyes of the United States, that nefarious treaty—part of the dark side of the law—completed the legal framework for removal. The president refused to consider the Cherokee petition and directed that no further assembly would be allowed for the Cherokee government to discuss the matter.141 The law of the conquerors now required the Cherokee to leave.

After tidying up the paperwork, the bureaucrats turned the distasteful task of forcible removal over to the military. The unpleasant job fell to General Wool, the commander of federal troops in the Cherokee territory. His first step was to disarm the Cherokee and quell any further tribal opposition to the removal treaty. The departure deadline came and went. However, only a handful of Cherokee voluntarily removed. Thus, Wool’s successor, General Winfield Scott, assembled 7,000 soldiers in May of 1837 to forcibly remove nearly 17,000 Cherokee. His proclamation warned every man, woman, and child to remove in one month or face the consequences:

My troops already occupy many positions…and thousands and thousands are approaching from every quarter to render resistance and escape alike hopeless…Will you, then, by resistance compel us to resort to arms…or will you by flight seek to hide yourselves in mountains and forests and thus oblige us to hunt you down?142

Stockades were built throughout Cherokee territory for holding the prisoners. From these posts, the soldiers rounded up every Indian they could find. Mooney describes the sickening hunt from eyewitness accounts:

[S]quads of troops were sent to search out with rifle and bayonet every small cabin hidden away in the coves or by the sides of mountain streams, to seize and bring in as prisoners all the occupants, however and wherever they might be found. Families at dinner were startled by the sudden gleam of bayonets in the doorway and rose up to be driven with blows and oaths along the weary miles of trail that led to the stockade. Men were seized in their fields or going along the road, women were taken from their wheels and children from their play. In many cases, on turning for one last look as they crossed the ridge, they saw their homes in flames, fired by the lawless rabble that followed on the heels of the soldiers to loot and pillage. So keen were these outlaws on the scent that in some instances they were driving off the cattle and other stock of the Indians almost before the soldiers had fairly started their owners in the other direction. Systematic hunts were made by the same men for Indian graves, to rob them of the silver pendants and other valuables deposited with the dead. A Georgia volunteer, afterward a colonel in the Confederate service, said: “I fought through the civil war and have seen men shot to pieces and slaughtered by the thousands, but the Cherokee removal was the cruelest work I ever knew.”143

Amid the brutality, some Indians were shot and hundreds escaped into hiding as fugitives. After the people were herded into General Scott’s concentration camps, the death toll and dirty work of removal began. By the time it was over, more than 4,000 Cherokee exiles had died as a direct result of removal.144 The sickness, heartbreak, malnutrition, exposure, dispossession, and death that accompanied the six-month winter journey known as the Trail of Tears illustrate the staggering cost in human suffering that forcible removal causes.145

The removal of the Indian race from the South is one of the greatest tragedies found in American history, marked by terrible injustice, broken treaties, discriminatory laws, unenforced court rulings, greed, and abject racism. It is hard to fathom the great capacity for evil that lies in the human breast, for we cannot tarry long at that doorstep without being utterly repulsed. In 2000, one descendent of those who were removed, Joy Harjo, the Muscogee Creek poet and musician, posed a universal question that seems apt as we contemplate the harm brought about by the Indian removal movement. She wrote:

Why does evil exist? I ask the question we all continue to ask. And why does evil often sit in the chairs of rulers, presiding over history, over human and other lives they are charged to protect? We are the ones who give these people power. Andrew Jackson was made president after being medaled with high war honors by the US Government for killing Mvskoke women and children who were resisting being forced from their homelands.146

What can be said of the legal framework that made the tragic Trail of Tears possible? Two observations can be made.

First, though it was all very legal, we know it was wrong. Government removal of indigenous groups from their aboriginal lands is considered an act of genocide in the world today. To what extent does the legal structure for Cherokee removal resemble the legal framework for removing the Jewish population from German society? There are uncomfortable parallels. In both instances, the roots of removal began with the development of putative racial distinctions that justify the supposed racial superiority of the dominant majority group. This racism was fermented in the South by politicians, scientists, and intellectuals and supported by statutes and judicial opinions until it was deeply embedded in the minds of most Southerners. Similarly, in Germany the vitriolic writings of Hitler and others contributed to widespread prejudice against Jews. Nazi laws singled them out from the rest of the population by requiring Jews to wear yellow armbands and stars. In both places, the target group was stripped of its civil liberties during the second phase of removal. We have seen how thoroughly this was done by Georgia law. Similarly, German statutes disallowed Jewish access to the courts, removed them from the professions and economy, and severely restricted interracial contact. The third phase involved state confiscation of property. This was accomplished in both instances through the law. Thereafter, the target populations were incarcerated pending deportation, and the victims were rounded up by force if necessary and taken away. Ghettos were established for those purposes throughout Europe, similar to the military stockades in Cherokee territory. Finally, the exiles were physically removed to their final destinations by the machinery of the state. Removal was perfectly legal in both places.147 Not a judge could be found in Germany or Georgia to declare the framework for removal illegal, as their tribunals were effectively closed to Indians and Jews. Instead, the courts in both instances enthusiastically supported the legal framework for removal. The law was employed as an instrument for evil in both instances. The biggest difference between the two removal programs is that the deplorable actions of the Nazis are burned into the public consciousness while the framework for Indian removal is barely remembered.

Second, the legal framework for Cherokee removal illustrates the pivotal role of the courts in democracies in protecting minority rights from what Alexis de Tocqueville and John Stuart Mill described as the “tyranny of the majority.” These nineteenth-century thinkers pointed out that one of the biggest challenges in a democracy is to protect minority rights and liberty from the excesses of majoritarian rule. Every form of government carries an inherent danger of intrusion upon individual liberty. For democracies, it is the absolute power of the majority. When every institution of democratic government gives sway to the daily passions of the majority that are hostile to minority liberty, as in the case of the Georgia-Cherokee conflict, it falls to the courts to control these excesses of democracy. The Supreme Court in Cherokee Nation failed to discharge that function. The Court closed its doors, shut its eyes, and allowed the tyranny of the majority to dispossess and remove the Cherokee people from their homeland. It is important to safeguard the rights and liberty of indigenous peoples who are often permanent minorities in settler states. They can never hope to become part of the majority without shedding their indigenous rights, values, and way of life and quietly assimilating into the settlers’ society. For democratic settler states who prize free institutions, an independent judiciary must provide a legal bulwark against encroachments upon Native peoples. When they fail to do so, the tyranny of the majority can do great harm, even in a democratic form of government.

Could the Supreme Court have forestalled these events with a timely declaration of tribal rights in Cherokee Nation? We shall never know. An injunction in 1831 might have changed the political equation by dampening Georgia’s assault and stopping the other southern states in their tracks, or at least made it clear to the nation at a pivotal time that their actions were illegal. On the other hand, the belligerent states’ rights mood of antebellum southern states willing to secede to preserve their slave-based way of life may have rendered any decision impotent. We do know that the Cherokee Nation Court deftly sidestepped the issue when it was first presented in an opinion that encouraged the movement, and that it was too late in the day for Worcester to rectify those mistakes. There is wisdom in the adage “justice delayed is justice denied.”

Native American Efforts to Overcome Hardships Created by Cherokee Nation

Toward the end of the nineteenth century, Indian tribes slowly gained reliable access to the federal courts, years after Manifest Destiny had spent itself on the Pacific Rim. The celebrated case of United States ex rel. Standing Bear v. Crook (1879) sparked renewed interest in litigation as a means to protect Indian rights.148 In Standing Bear, Judge Elmer Dundy ruled that a Ponca Indian chief was a “person” under the habeas corpus law and could therefore maintain an action in the courts of the United States to challenge the legality of his tribe’s confinement, despite the argument by the US attorney that none but free American citizens are entitled to bring such cases in federal court. The Ponca Tribe had been removed to Indian Territory, but Standing Bear’s band escaped and returned to their Nebraska homeland, where they were arrested by General George Crook. The court set Standing Bear’s people free, after holding that Crook lacked the authority to incarcerate them, and allowed them to remain in their homeland. This decision opened Indian eyes to the possibility of protecting their rights through litigation.

A handful of tribes became litigants in the 1890s. This trend increased dramatically with the passage of twentieth-century laws increasing tribal access to the courts, such as the Indian Claims Commission Act of 1946, which established a special forum to hear Indian claims against the United States.149 In 1966, another statute authorized Indian tribes to bring suit in federal court to protect rights arising under the Constitution, laws, or treaties of the United States.150 From then on, the courthouse doors were open and tribes took full advantage of their right to sue. During the modern era of federal Indian law, tribes scored a number of astonishing legal victories as they reclaimed their sovereignty and held America accountable for obligations owed to Native people under the law.

In closing the courthouse doors to the Cherokee Nation at a crucial time, Cherokee Nation illustrates that justice delayed is justice denied. Today, the United Nations Declaration on the Rights of Indigenous Peoples (2007) makes it clear that denial of access to the courts on indigenous land issues is a human-rights violation. Articles 26–28 require states to recognize and protect indigenous lands, to implement “a fair, independent, impartial, open and transparent process…to recognize and adjudicate the rights of indigenous peoples pertaining to their lands,” and to afford them a right to participate in that process. None of these human-rights protections were available to the Cherokee Nation in 1831. Further, when indigenous land has been “confiscated, taken, occupied, used or damaged without their free, prior, and informed consent,” as done to the Cherokee people, Article 28 requires the state to give restitution of lands equal in size and quality or other appropriate redress. Failure to provide those protections, processes, and remedies amounts to a clear-cut human-rights violation under the UN declaration. Though this international law development comes too late in the day for the Cherokee Nation, it leaves little doubt about the injustice done in 1831 and may help forestall future landgrabs. The declaration also leaves no doubt that the Indian removal policy promoted by Cherokee Nation, the southern judiciary, and Congress in the 1800s amounts to a massive violation of human rights, if executed today under current international standards. Article 10 states: “Indigenous peoples shall not be forcibly removed from their lands or territories.”

The remarkable holdings in Worcester helped Native Americans mitigate the hardships imposed by Cherokee Nation’s doctrines of colonialism. Worcester arose in the wake of Cherokee Nation, during a frightening time when the nation was aligned to oppress, dispossess, and remove the Cherokee. As the single shining beacon from that dark period, Worcester established several important legal principles that endure today: (1) the Indian tribes enjoy a sovereign right of self-government free from interference by the states; (2) their treaties must be honored as the supreme law of the land; (3) the doctrine of discovery and edicts from Europe do not divest Indian land or sovereignty; and (4) reservation borders are protective barriers against hostile states and land-hungry settlers. Although belated and ineffectual in 1832, Worcester eventually became the law of the land over time under principles of stare decisis. Today, Worcester is cited every time a court protects tribal sovereignty. On the other hand, the bigoted trilogy of the southern judiciary is no longer cited as legal precedent. Tassels, Caldwell, and Foreman fell into obscurity and cannot be found in modern treatises, such as Cohen’s Handbook on Federal Indian Law. Access to the courts has made a difference in the lives of Native Americans, who even use the courts to confront vestiges of racism in public life that have been so injurious in the past.151

At the same time, Cherokee Nation remains good law today, but in a mitigated form. It is relied upon by the courts mainly to denominate Indian tribes as “domestic dependent nations”—the second-class political classification became the legal basis used by Indian tribes during the Native American sovereignty movement to solidify their remaining sovereignty within the American political system. It is cited also for espousing the federal Indian trust doctrine, which tribal litigants converted into a shield for protecting tribal rights during the modern era of federal Indian law. The dark side of Cherokee Nation—it’s noxious use of the discovery doctrine and prevailing racial prejudice to place Indian tribal nationhood into a colonial legal structure—has been largely obscured, superseded, and mitigated over time by Worcester. Thus, when those two decisions are read together by modern-day courts, powerful principles of federal Indian law emerge. Those principles solidify the presence of tribal governments in the American political system, which comprises over five hundred federally recognized Indian tribes who are fully functional “domestic dependant nations” in the eyes of the law, including three Cherokee governments—the Cherokee Nation, United Keetoowah Band, and Eastern Band Cherokee Tribe. In short, after lawyering up, tribal litigants made the best out of a bad case and turned a sow’s ear into a silk purse. Unfortunately, the dark side of Cherokee Nation still resides in the law, ready for use by any jurist who wishes to impose harsh colonial doctrines upon Indian tribes.

The human spirit is hard to snuff out. Few acts of genocide are entirely successful, due to the human will to survive. Despite the United States’ efforts to remove every Cherokee from the South, many escaped. These fugitives were befriended by W. H. Thompson, a longtime friend of the Indians. A man of goodwill able to rise against the anti-Indian sentiments of his day, Thompson was an orphan who had been adopted by a Cherokee chief and given the name Wil-Usdi’. Under his protection, over one thousand Cherokee found refuge in North Carolina.152 Today, 13,400 of their descendants remain in the South. They reside deep in the Smoky Mountains on an Indian reservation of 52,000 acres governed by the Eastern Band of Cherokee Indians, a federally recognized Indian tribe.153 The presence of this flourishing Indian nation represents victory over the Indian removal movement. It gives testament to the determined will of indigenous peoples to remain in their homeland.

Those Cherokee emigrants who survived the Trail of Tears managed to flourish in dusty Oklahoma. With a diverse tribal membership comprising more than 200,000 Cherokee Indians, Delaware Cherokees, Shawnee Cherokees, and former slaves known as Cherokee Freedmen, the Cherokee Nation is located in northeast Oklahoma, where 70,000 real, live Cherokee Indians reside in a territory spanning fourteen counties. The Nation continues to exercise self-government with a strong cultural and economic base.154 Today, everyone wants to be a Cherokee, even movie stars. Many prominent Americans proudly belong to this popular tribe of Indians.

In the fall of 2008, I journeyed to the heavily forested mountains of Cherokee, North Carolina. I came to address a historic joint council held between the Cherokee Nation of Oklahoma and North Carolina. As I looked out upon the Principal Chiefs and council members of this great people assembled in the luxurious casino auditorium, there was no doubt that I was in the midst of a handsome and vibrant people with a rich, storied past. Perhaps God smiles on those who have suffered great misfortune, because the resilient Cherokee people have largely overcome the immense burdens placed on their ancestors by the harsh law of the South. Looking back on the tragic events surrounding Cherokee Nation, my nephew Taylor Keen, a former member of the Cherokee National Council, observed in 2008:

The Cherokee Nation suffered greatly from the tyranny of Georgia and its Harassment Laws, as each of our sovereign capacities as a Nation were systematically stripped from us. These events were mirrored once again by the State of Oklahoma at the end of the allotment period. But all of these events help galvanize the resolve of the Cherokee Nation, who has time and time again learned to survive, adapt, and prosper.155

And what became of Georgia’s vainglorious dreams of domain and empire? Shucks, they never amounted to much.

(Cherokee People, it is good you are still here.)156