The Constitutional Origins of Native American Tribal Sovereignty Howard Kaplan & Tiffany Middleton National Council for History Education April 22, 2016

In this session: Discuss The Cherokee Cases ( ) Provide background & context Highlight major takeaways from the story Connect to the conference theme of “Crossing Borders”

The Cherokee Cases Major Characters Andrew Jackson, President John Marshall, Chief Justice of Supreme Court John Ross, Principal Chief Cherokee Nation William Wirt, U.S. Attorney General

sovereignty: / ˈ säv( ə )r ə n(t)ē/ noun “pre-eminence,” from Anglo-French sovereynete, Old French souverainete, from soverain, Meaning: authority, rule, supremacy of power or rank, sense of “existence as an independent state” is from Source: Online Etymological Dictionary

Political climate : Contributing Factors Distinction between property rights and sovereignty Fletcher v. Peck (1810) Cherokee Constitution of 1827 Johnson v. M’Intosh (1828) Jeremiah Evarts essays (1829) Indian Removal Act (1830)

Cherokee Constitution of 1827 Preamble: We the representatives of the people of the Cherokee Nation in Convention assembled, in order to establish justice, ensure tranquility, promote our common welfare, and secure to ourselves and our posterity the blessings of liberty, … do ordain and establish this Constitution for the Government of the Cherokee Nation.

Cherokee Constitution of 1827 Article I, Section 1: The boundaries of this nation, embracing the lands solemnly guaranteed and reserved forever to the Cherokee Nation by the Treaties concluded with the United States, …

Cherokee Constitution of 1827 Article I, Section 2: The Sovereignty and Jurisdiction of this Government shall extend over the country within the boundaries above described, and the lands therein are, and shall remain the common property of the Nation; …

Political climate : Contributing Factors Fletcher v. Peck ( 1810) Cherokee Constitution of 1827 Johnson v. M’Intosh (1828) Jeremiah Evarts essays (1829) Indian Removal Act (1830)

Case #1: The State v. George Tassels (1830) Accused of murdering Sanders “Talking Rock” Tried and convicted in Georgia court Petition to the U.S. Supreme Court original jurisdiction Executed in Georgia, December 24, 1830 Supreme Court has “original jurisdiction” over: Disputes between states Cases involving ambassadors or public ministers Cases involving ships on the “high seas” and navigable waterways not governed by states Cases involving the United States as a party, including treaties

Case #2: Cherokee Nation v. Georgia (1831) Seeking an injunction against laws that " go directly to annihilate the Cherokees as a political society.“ Wirt argued that " the Cherokee Nation [was] a foreign nation in the sense of our constitution and law " and was not subject to Georgia's jurisdiction. Georgia argued that the Cherokee Nation couldn’t sue as a “foreign” nation due to the fact that they did not have a constitution or a strong central government.

Case #2: Cherokee Nation v. Georgia (1831) Though the Indians are acknowledged to have an unquestionable and, heretofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

Case #3: Worcester v. Georgia (1832) Finally, the test case! Samuel Worcester ( ), American Board of Commissioners for Foreign Missions, arrested for not obtaining a permit from Georgia to live among the Cherokee

Case #2: Worcester v. Georgia (1832) The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the Government of the United States.

President Jackson’s Quote Probably more accurate: "The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.“ Probably apocryphal: "John Marshall has made his decision; now let him enforce it! ”

Crossing Borders: Actual borders—Samuel Worcester Abstract borders—jurisdiction, sovereignty Cherokee commitment to nonviolence and legal strategy

Thank you for joining us!