Class 03: Treaties, removal, and the Cherokee Cases Professor Sarah Krakoff University of Colorado Law School Sarah.Krakoff@Colorado.edu

Review of Last week Origins Pre-Revolutionary Legal Developments Crusades Age of Discovery Colonialism in the New World Pre-Revolutionary Legal Developments French/Indian War British Proclamation of 1763 American anger and resistance

Review, cont. Post1776: United States Indian Policy THEMES: Articles of Confederation U.S. Constitution, Art. 1, sec. 8., cl. 3: “The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” U.S. Treaty Making with Tribes THEMES: Ideological/religious/economic rationales Assumptions or lies about inferiority Consolidation of power in Crown/Federal government Emergence of protectorate (or trust) relationship

Review, Cont: The Role of US Courts in developing American Indian Law Johnson v M’Intosh, U.S. Supreme Court (1823) Can Indian tribes convey title to private individuals that will be recognized in federal courts? No. Why not? Steps in Justice Marshall’s reasoning 1. Doctrine of discovery gave European nations exclusive right to acquire title from Indian tribes. P. 36 Is this de Victoria’s discovery doctrine? How is it different? 2. US stepped into England’s shoes in this respect. P.37-38 3. US government therefore has exclusive right to extinguish Indian title, by purchase or conquest. P. 38 Note: US does not acquire automatic absolute title to all Indian lands; just exclusive right to acquire title. De Victoria did not articulate an automatic right to acquire title exclusively. Though one could argue that this was implied. De Victoria articulated, to the contrary, that there were no automatic rights; only ones that could be acquired based on the need to convert, the need to enter into trade, etc. Review also: most favorable way to read the opinion on behalf of tribes: See Ball quote on page 42. “Little consequence” for tribes, because tribes can still convey to the full extent of their property rights. This view is bolstered by Marshall’s paragraph on page 40, which we emphasized. Marshall’s tone: Wistful, realist, ultimately accepting. Read from page 39– “fierce savages..” languaged that several of you noted as disturbing, and resonant of the justifications from Columbus on for arriving, converting, confiscating. But another way to read it is to note that what Marshall is saying is that the ordinary forms of absorption would not and will not work for tribes. They insist on maintaining their separate identity. This much was and is true. Marshall faces the reality of tribal assertions of indepdendence, but ultimately punts. Read paragraphs from But the tribes… on page 39 to the end. Finish with “However extravagent…”

Johnson, slide 2 What effect does Johnson’s holding about Indian title have on Indian property rights? Indian tribes retain a “right of occupancy” and “legal and just claim to possession” of the land. But they lose the right to convey legal title to any purchaser other than one: The U.S. can acquire Indian title through purchase or ”conquest.” Why not hold that conveyance to Johnson’s predecessors were invalid under the Proclamation of 1763? Need for broader resolution for acquisitions from tribes either after 1776 or outside of former English territory Notes from previous slide (if not covered, cover here):

Today’s class Political and Legal Context: Removal Era (1817-1848) Emerging foundational principles of federal Indian law Property rights of Tribes (Johnson v. Macintosh) Power of the federal government in Indian affairs (Johnson and Worcester) Federal obligations to Tribes (trust responsibility) Legal status of Tribes (Nature of Tribal Sovereignty)

Removal Era 1817-1848 More land, fewer competitors Louisiana Purchase (1803); War of 1812 Pressures to exploit and settle President Andrew Jackson elected in 1828 Discovery of gold in Georgia (1829) Promises to states (GA) that had ceded western land claims Fear of real sovereignty? Cherokee Nation (and Choctaw, Chickasaw, Seminole and Cree) success breeds state concerns about permanence. Removal Act, 1830 Expansion of U.S. territory to west of Mississippi; settlement of claims w/ Britain Southern States : Wanted Indians out of their boundaries. Georgia relied on an 1802 compact that promised to extinguish Indian title. Cherokee Nation meanwhile expanding and acting like a “real nation:” textiles, roads, a constitution, a written syllabary, a newspaper. Terms of Cherokee Removal Act: Move tribes to the west; but on consensual terms.

Cherokee Nation v Georgia (1831) Backdrop: why did the Cherokee Nation decide to sue Georgia directly, and why in the Supreme Court? Removal era policies The issue in the case: Is the Cherokee Nation a “foreign nation” in the U.S. Constitution? Marshall’s conclusion: Tribes are “domestic dependent nations.”

Worcester v. Georgia (US 1832) Two missionaries challenge Georgia’s assertion of its laws in the Cherokee Nation This time, Justice Marshall sides with the Cherokee Nation. ”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 or effect." Why do the tribal interests finally win?

Aftermath Many trails of tears… 1835: Treaty with an unrepresentative group of Cherokees 1838 forced removal. “The conduct of the Americans of the United States towards the aborigines is characterized by a singular attachment to the formalities of law….It is impossible to destroy men without more respect for humanity.” --Alex de Tocqueville