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tv   Chief Justice John Marshall the Cherokee Cases  CSPAN  April 9, 2021 7:58pm-9:08pm EDT

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amazing. and that was is what happened the night of my election. the reaction was mixed, there were some people you know some newspapers printed stories and sit chapel hill elects a black power mayor. and some wrote the -- elected mayor of chapel hill. but some recognize the historical aspect of what had occurred. and i did not know until that night, they had never been a black mayor of a majority white municipality i don't think ever and so that started the headline. but even the more pleasant part is that even my hometown paper, had a positive story. atlantic atlanta journal had positive story. and i was confident that my election, certainly put a small
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lot on the fact that know who basically martin luther king had laid the groundwork and then the sacrifice for something like this to happen. i think if it had to happen, chapel hill was the place that it should happen. and i'm obviously very delighted that i was the person who is in the middle of that.
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oklahoma university law professor lindsay robertson discusses the decisions issued by the us supreme court in cases involving the cherokee nation, especially the role of chief justice john marshall. virginia museum of history and culture preservation virginia and the university of oklahoma center for the study of american indian law and policy co-hosted this event. good morning. i'm elizabeth kostelny and it's my great honor to serve as the ceo of preservation, virginia and to introduce our next speaker. lindsay robertson is the author of conquest by law that explores the subject that brings us here today. as we conceptualize this symposium lindsay has been invaluable and determining the
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format in our speakers and then our goals to share this history. we're excited to finally meet in person. it's been as jenny mentioned. it's been 18 months. i think of phone conferences and planning. lindsey joined the law faculty at the university of oklahoma and 1997. he teaches courses and federal law indian law comparative and international indigenous peoples law constitutional law and legal history. he serves as the faculty director of the center for the study of american indian law and policy and the founding director of the international human rights law clinic. he was the recipient of the david alborn award. i should say he was the first recipient of the david alborn award for outstanding global engagement. he's an elected member of the american law institute and the american bar foundation and serves as a justice on the
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supreme court of the cheyenne and the arapahoe tribes. please join me in welcoming lindsay robertson. it is an absolute delight to be here what didn't get mentioned is my dad's family from charlottesville. my mom's family is in the tidewater and i went to law school and did my history doctorate at the university of virginia. wahoowa, so i am i am back home in a sense. i've been a proud, oklahoma for 22 years and my kids identify as oklahoma. they don't really remember that when they were very young they lived in virginia, but my oldest child is now a first year law student at uva, so she's come back and connecting with her roots and we'll see what happens in her life, but i think she feels like she's back home too.
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so i am truly honored to be here. my thanks go out. i would be remiss if i fail to say to preservation, virginia, which has been just an absolutely fantastic organization to work with and those of you with spare change should tribute mightily to them they're doing important work and also to the museum, which i think i last visited in the 1960s with my dad. it's changed. it's changed in a lot of ways and i'm excited to have a chance to look around a little bit later now to follow up on what what kevin said i will pick the story up in the first decade of the 19th century, and i have some slides if i can get into them. and what i want to do is start with the big troublemaker in all of this. i'm gonna focus on john marshall and the cherokee cases and sort of the build up to the trail of tears forced migrations of the
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five southeastern tribes, but the culprit and all of this is, georgia. and i'm going to start with georgia in 1802 and then i'm going to move a little bit around in time and maybe revisit some of the some of the the themes that that kevin touched on. i'm with legal rights of indigenous. holes to land. this is a map of georgia and more or less 1802 many of you will remember in kevin mentioned this that in the confederation congress. he mentioned that northwest ordinance, but virginia ceded its colonial charter claims to the new united states. those will become the states of ohio and michigan and and illinois and indiana, north carolina had a bunch of western lands that they or claimed western lands under their colonial charter that they seeded also to the united states those would become the state of tennessee. and georgia had lands that they held on to as long as they could
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and so this is 1802 the last year of greater georgia's charter claims included what would become the states of mississippi and alabama different runs at profiting from this occurred in the last decade of 18th century? early first decade. oh, well this close to 1802 as they could pull off when they finally lost these to the united states what successive or a series of georgia legislatures attempted to do was to sell as much of this land as they could mostly to new england speculators. some of you will remember the famous yazoo controversy, which will give rise to a lawsuit. i'm actually visited about that. well, i'll say a word about that now and it'll sort of help set the stage because there's a legal rule that sort of rule that comes out of that that's going to be relevant in a minute. yazoo lands were out in mississippi.
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and the massive quantity sold by a georgia legislature to a group of new englanders. this is the final sale called the england, mississippi land company. and they were all scoundrels but well respected scoundrels and the georgia legislature we learn. a wonderful book by peter mcgraw called yazoo was almost to a man bribed by these guys to agree to the terms of sale. the only legislator who wasn't bribed was absent. he was home six so he didn't show up to get his check and so he wasn't bribed but the rest of them apparently were according to peter mcgraw's book charles hobson, by the way also has another wonderful book about the yazoo claims and the pleasure versus pec decision that came out of them. well this this legislature having sold off much of george's western patrimony was ousted by the good voters of georgia and the succeeding election new gang
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came in first official act was to tear from the statute book the act that had authorized the sale of george's much of george's western domain. this is my favorite story may or may not be true. but peter mcgraw relates it others do too. that they they took the capital is milledgeville at the time and they they took this sheet of paper to the main square and milledgeville as i remember it and they dragged out of retirement this old revolutionary war veteran. and had him put on his uniform or a uniform and the old guy sort of hobbled down to the square in the handed him a magnifying glass now many of you as i never did this, but i knew people who did tortured insects as children with magnifying glasses and tortures maybe putting it mildly immolated insects, i guess and what what they had this guy do as they
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publicly repudiated this act of sale is sort of satanically inspired. they had the old guy hold up a magnifying glass and fry to the document and the the symbolism was that this was the spirit of the revolution destroying this unholy act by bringing down fire. from god now. you really can't get any cooler than that, right? and so so do this sometime if you have something to protest think about anyway, i sort of liked it as a picture in any event. they did repudiate it but unsurprisingly the new legislature gets sued by the new england, mississippi land company. hey, that lands are so you can't repudiate the sale. it's too late. this claim will make its way to the supreme court of the united states in 1810 and in it's first such act ever the supreme court will invalidate a state statute as unconstitutional john marshall writing the opinion in the case of fletcher versus pack
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and his grounds are that there's a clause we call the contracts clause in the constitution that says no state may pass a law and pairing the obligation of contract. this was a contract by the state with the new england, mississippi land company and the succeeding legislature. is unconstitutionally acting when it repudiates that contractual obligation, and so it's invalid in new england, mississippi land company gets the land this will end up they won't ever actually get the land. it'll go to congress and congress will cut a deal to give them money for it, but part of the problem with the with the lawsuit. and fascinating story the losses collusive case etc, but part of the problem with the lawsuit was that it wasn't clear that georgia ever had the power to sell the land in the first place because tribes lived there it was and it was their land and so how was it that that george could do this now?
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i'm gonna disagree just well i went disagree, but give a cellular different take on something that that kevin said kevin mentioned that it was commonly understood that tribes that the real property interest the tribes had in their land wasn't occupancy, right and and it is that some people thought that but it was really unclear that that many people thought that and and part of the and a lot of people including jefferson thought why would that be tribes own their land like anybody else owns their land and and really it was kind of a non-issue. it was an academic issue for much of the early period it became meaningful in this case. because if if the tribes owned their land then indeed, georgia had nothing to sell except maybe the the possibility what we call a prescriptive right the georgia had a right to buy it. they could sell the land new england, mississippi land company. they're right to buy but they couldn't sell them the actual land again because they didn't
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own it. and so so somebody had to figure out whether in fact they did own some real property interest or whether this was just some kind of a breach of contract claim and the supreme court had to wrestle with that one justice william johnson, who was the jefferson point he wrote of course the tribes owned their land and so of course, you know, this whole deal is sort of flawed, but the majority john marshall hedged a little bit and said, well, you know, it's not it's not entirely clear that georgia owned the underlying what they would call feed title to the land, but because we're not really sure what interests the tribes have but whatever it is. maybe it's not entirely this is a this is hedging language entirely inconsistent with ownership in fee, and now let's talk about something else. and so they moved on and we don't really get a clear resolution in fletcher versus pack, but we get enough of a holding that the original grant was valid at the speculators
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could proceed to make their claim. all right, so that was all out in this western part and talk that away because it's gonna it's gonna return what happens in 1802 is the federal government finally shakes, georgia down enough to see whatever it's charter claim started these land so that they can become a new south west territory in georgia agrees to but one of the conditions that georgia imposes on the us when it seeds what would become alabama in mississippi is we want you to get rid of these indians that are going to be left within the bounds of the state of, georgia. the creeks were there. and importantly for our purposes the cherokees were there in northwest georgia couldn't get rid of them because the constitution vests the treaty power in the federal government. it's only the federal government can negotiate treaties with tribes the constitution also vested the warmaking power in the federal government.
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so georgia couldn't constitutionally kick them out, but they got a promise out of the federal government that they would take care of it and i'll show you where these were these lands were this is the view and we're about to switch perspectives of the same territory from the cherokee perspective kevin mentioned the tree of hopewell, so it used to be a cherokee lands included kentucky and all the rest. these are successive treaties at 1785 at hopewell. that's the peace treaty between cherokee and the united states at the end of the revolution. the the kentucky lands are giving up and then we have another treaty and so by the time of our story in the 1820s and 30s where we're headed. we're down at this circle down at the bottom. and so this is the cherokee perspective on all this. here's george's perspective by the time we get to 1830 creeks would have been in this middle part, but by 1830 you can see cherokee indians up in the upper. northwestern corner of georgia and that's the area that the georgians want the feds to clear
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and the problem is it turns out that the cherokees don't want to leave but for a number of years the federal government will send agents down usually at the at the urging of georgia. hey guys, you know, it's like 18 five three years. have you got the cherokees to agree to go somewhere and the whoever's the president will say? oh, yeah. yeah, we'll get on that and they'll send somebody down and they'll say hey you guys you want to go somewhere else and they'll say no say all right. see ya and then i'll go back and another year too will pass and george will show up and i'll have the same conversation and and unsurprisingly they're patience eventually will wear out and we're going to set that aside for a minute and and spend a moment or two with the cherokee nation who are on the receiving end of all of these. full solicitations the chief of
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cherokee nation for for the period that that we're going to be concerned with which is the removal period and and on through most of the civil war is john ross, which is the name with which you should be familiar and maybe most of you are familiar. john ross has sort of the great hero of mid 19th century cherokee history in hill end up in in oklahoma where his descendants still live today. there are many of the roster send in south there ross presided over what's been called by one author at cherokee renaissance the cherokee renaissance in the 1820s where that the cherokees who were in northwestern, georgia and parts of, tennessee and north carolina had to sort of come to grips with how they were gonna make it surrounded by this non-native population that was rapidly as kevin illustrated spreading west and and so what they decided to
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do in part keep their traditions, but at the same time to a certain extent modify those traditions in order to maybe better fit into the neighborhood and so they would become there in the south they become sort of a plantation based economy in in part slavery is legalized because they're surrounded by georgians. they will develop a written language and i do want to say we're about this. so this is this sequoia story sequoia's still much revered cherokee historical figure. he'll also end up end up dying i think but he's in uh cherokee nation in oklahoma for much of his adult life, but sequoia invented a syllabary. those are vocabulary word for the day a syllabary is different from an alphabet. any people think he invented the cherokee alphabet, but he didn't
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an alphabet includes one symbol per sound. so the word sound would have a bunch of symbols for so oh and for instance a syllabary is one symbol per syllable. so the word sound in cherokee would have one symbol so simple for the syllable sound and what that means. of course, is that a syllabary has many more symbols than an alphabet does because they're more combinations of sounds in a language than there are individual sounds but once you've memorized them, it's much easier to read you don't have to use my kids. it sounded out each individual. it's just oh sound right? that's the word. that's the symbol for that and in consequence of this truly ingenious creation the cherokee nation became wine was widely conceded time to be almost overnight the most literate political community in the world people ask to mate something like 95% literacy, which was way more than georgia at the time at
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the time right and and the the i didn't mean that yeah, so the the presence of the syllabary enabled the creation of a newspaper and written documents and that sort of thing and so what we have and and the construction of a new constitution a new capital city the place they chose an area city called new at chota. which was in is in and still is in northwest, georgia. you can visit it today. it's a georgia state park. perhaps ironically a number of buildings. the georgians have very i think well reconstructed. it's it's definitely worth a visit. the council house is here. there's a supreme court building which is charming which is there
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and this is these are just a sample of the have set up. this is the cherokee phoenix offices the print shop where the newspaper was printed, by the way, it's still in print the cherokee phoenix in tahlequah, oklahoma, and i imagine you could subscribe if you wanted to it's available online as well. now these entities absent the phoenix were created pursuant to a constitution as i suggested and this is another thing that the cherokee nation decided to do in order to establish. it's intent perpetually to remain essentially they adopted a constitution in 1827 and the constitution included among other things separation of powers government and that sort of thing but it included all so a statement of boundaries. these are our lands and an affirmation that these will always remain our land so it's it's clear from the adoption of the constitution the chair from the cherokees vantage there.
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they're not going anywhere and this i think is one of the things that drove origins to contemplate more extreme action the cherokees having failed to agree to remove pursuant to federal and treaties over the previous two decades. the other thing. i think that that kicked the georgians into life in the late 1820s was that gold was discovered in cherokee nation. and so crossing the chair that chattahoochee river and getting rid of these folks became an absolute economic imperative in the minds of many non-native georgians. so what happens? this guy george troop i credit with being the the mastermind of the strategy that would ultimately be employed successfully to engineered cherokee removal true interesting guy actually had was had creek relations became
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governor of georgia. was eager to acquire the lands of the cherokee nation and and said about to find a legal way that he could do. so and he found it. thanks to john marshall in the supreme court of the united states and in 1823 decision the second marshall court decision dealing with native land rights, but the first to deal comprehensively with native land rights the case johnson versus mcintosh rose from late colonial land speculation. that was frankly illegal under british law, but involve the acquisition of millions of acres of land and what would become indiana and illinois from the pianca and we are another of the illinois and indiana nations. and the land speculators would would push for recognition of title for 50 years the purchases
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were in. 73 and 70 five and eventually, they'd get before the supreme court and what the supreme court did in that case was to hold the purchases invalid on the grounds that the tribes didn't own their own land and this is the point at which 1823 the federal government does adopt a rule about indian occupancy rights being the limit of tribal land rights, and it's it's a construct of this case and what the what the court finds is that when europeans discovered the new world they founded in the possession of native peoples and the question arose who owns the discovered lands. the europeans says john marshall for the court in johnson versus mcintosh determined that the way it should work is as follows upon discovery the underlying title to all discovered lands
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becomes the property of the discovering european sovereign. that's the king of england fine if it's the king of france find that european sovereign owns all the title to all discovered lands the tribes retain an occupancy, right? which more or less meant a right to occupy in that formulation and they could so they could stay there and and they could sell the occupancy right if they wanted to or legal term is alienate cell or give away the occupancy, right? but only two the same discovering sovereign. and we call that a preemptive right? so write a first purchase. so only the sovereign can buy it. that portion of the discovery doctrine is still the law. and it's enshrined in the trade intercourse act that kevin discussed, which says that only the united states now is successor to the british crown can buy indian lands. that's still the law today. so the only way we can buy
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cherokee land if you wanted to is with an act of congress through an activists authorizing or validating the sale. okay, so that's the second part of the discovery doctrine. it's that first part though that the underlying title to all discovered lands bested upon discovery in the discovery sovereign that troop gets excited about that now johnson mcintosh came down in 1823. and by the way my belief and this is the position i take in the the book. is that the reason that john marshall essentially adopted this rule in order to solve a completely related problem having to deal with the rights of virginia and revolutionary war vets to lands in southwestern kentucky that again by accident had been given to virginia soldiers while they were in full possession and ownership of the chickasaw nation. and so he had to come up with a theory so that there was a land right to give it's like the
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fletcher versus pec case part two and you just sort of adopts this rule a little bit more thoroughly in that case. i think to solve that problem without really thinking through potential consequences, so and here come the consequences. so true. somebody presents johnson versus mcintosh to troop and any sits back and thinks well, well, wait minute. okay, so if we so we declared independent, georgia declared independence from england. and so and we want right so when we want our independence doesn't that mean that we acquired from them the ownership of the underlying title to the lands of the cherokee nation which are within our our bounds. and if and and they retain an occupancy, right, okay, but if but if we own the underlying title. and they own an occupancy right? then doesn't that mean? that we're sort of like their landlord. right because that's the one
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that we're familiar with. so the landlord owns the building you have an occupancy right to live there and how do you get rid of tenancy? you don't like well you change the least terms. so now it would be you know, i love your dog. he's a great dog, but you know the twenty thousand dollar pet deposit. it's not unreasonable. and so you're more than welcome to stay as long as you want to as long as you want to with the dog, but i need 20,000 dollars. you're like, oh, this is terrible. i'm moving you. so i'll miss you, you know, even you've been great, right and that's sort of what happens to the cherokees. what what troop does is he marches into the legislature of george and says look, we where their landlords any uses that and so so we can basically there are tenants we can change the least terms and you guys should should do do something to act on this. and that's pretty much troops contribution at this stage because he leaves the governorship immediately afterwards and moves to washington to be george. senator where he's going to play
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a major role in the adoption of the indian removal act presently. right. what is georgia do this is 1827, georgia issues these resolutions in december 1828 the next governor john forsythe persuades or pushes through the legislature a statute. that acts on this idea from troop that says okay cherokees you guys stay as long as you want, but from now on we're we're going to divide your lands up and you're going to be parts of four george accounts. and you can keep your own laws until june of next year or june 1830 at which point you will all be subject to the laws of georgia and all of your laws will be null and void. so, but you're welcome to stay. and unsurprisingly the cherokee nation says no. that's not how this is going to
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work. now. what made georgia confident that it could get away with this now after so many years was the election the previous month of this guy andrew jackson to the white house in jackson was on record as being supportive of the idea of forcing indians out of the southeast and finding some other place for them. they thought jacksonville gets sworn in and he'll actually take some federal action to support us in this effort. and of course it turned out that they were exactly correct 18 december or march 1829. jackson is sworn in by the way before this happens, alabama steps up and says look what george is doing and they pass a law imposing their laws over the creek nation and as we'll see and within a year mississippi is going to do the same thing imposing its laws over the chickasaws and the choctaws and so this this is more than just georgia by the time all of this
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becomes the subject of litigation december 1829 jackson delivers his first, we would now call state of the union address his first annual address as he called it. a lot of it is about indian removal. he says look, georgia, alabama had passed these laws imposing their laws over the indian nations. they they're perfectly right in doing so and the tribes are welcome to stay but they will be subject to state law what i'd like you congress to do is to pass legislation. offering if they want to to trade with these tribes in the southeast. they're current lands for lands out in what was essentially the louisiana purchase territory and way out in the louisiana purchase territory. it was as far as you could go before you were in mexico. it was right at the basically the mexico border and what would eventually be the texas border
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when texas is an independent state and that little corner is where these tribes were going to be tucked if jackson had his way this message was delivered in the audience by the way, troop and former governor forsyth who's holding the other georgia senate seed and they were going to become as they were architects in georgia of the idea of ousting the cherokees. they're going to become nature backers of the indian removal act in congress when it comes up and it comes up on this immediately the removal act debate begins. in 1830 the debate lasts eventually about five months. there is support for the tribe's position mostly from new england representatives and mid-atlantic representatives among the most vocal was theodore frailinghausen from new jersey who takes the floor on multiple occasions to say, you know, what are you doing? how how can you how can you
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possibly assert your laws over these people and the response that comes from true and forsyth and other supporters of indian removal is johnson versus mcintosh. we own the land john marshall told us we own the land and so we can we can do this. we have the right to do this. we're the landlord eventually that position will will prevail and in april end of april the senate approves the indian removal act the house approves it a month later may 26th with slight modific. the senate accepts those the following day and on may 28th. andrew jackson signs it into law almost immediately. the jackson ministration starts negotiating with southeastern tribes to get them to remove. because look we got land for you. now the first tribe to say okay is the choctaw nation. which signs the treaty of dancing rabbit creek in
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september 18, 18 30 and and it includes two provisions that i want to spotlight for you because they sort of x help explain exactly what's going on here and reinforces what we've just said the first is a provision that says that when you when you move out to these lands, we're going to swap you for in what would become known informally as the indian territory now, oklahoma, no state shall ever be allowed to pass laws to govern the chocked on nation and this line becomes a standard featur. of these what we call removal treaties. no state shall ever be allowed to pass laws to govern your nation the other provision that's in there is a provision saying and you will own the title to those lands. and that's important because that had been the means by which georgia had claimed the power to impose its laws that can't happen out there because you guys will own the title to your
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lands and i'll mention that today. that's still the rule the five tribes from the southeast almost uniquely not entirely but almost uniquely owned as a matter of us law the title to their land we call it restricted vlans and that's a as a consequence of these removal treating negotiations to avoid having again to deal with the problem that they had to face in the john marshall. and this is a early 1830s portrait of john marshall. so he's older than you may be used to to seeing him was appalled by all of this marshall wrote to dabney carr humanity must be wail the course, which is pursued elsewhere in a letter if memory serves to frailing house and with him, he was in contact during the removal debates he described the effort of the southern states as something like the unholy combination of unrighteous power and i have to say i think that
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part of the reason he was so upset must have been that he felt partly to blame for it. because he's the one who had handed george of the tool to independently start initiating the ouster of the cherokee nation by claiming rights as a landlord to impose its laws and that provided incentive for the tribes to leave etc. i think that got thrown in his face very soon after all of this started in fact the same month the treaty of dancing rabbit creek was signed with the chickasaws the richmond inquirer published the full text of a georgia judicial opinion the organizational the georgia judicial convention, which was the equivalent the acted as the george's supreme court in those days in the case of a man named george tassels his english name he was this was a cherokee who was accused of killing another cherokee in cherokee nation in northwest, georgia. and because georgia had imposed
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its criminal law the georgians went in and grabbed this guy prosecuted him in state court and sentenced him. death and tassels are tried to appeal through the georgia court system, unsuccessfully and then pleaded with the supreme court of the united states to help him marshall within three days after the richmond inquirer ran the georgia opinion ordered the governor of georgia to halt proceedings and send legal representatives to washington to to talk about whether georgia had the authority to to do any of this the georgia governor's response. i'll read to you and i'm paraphrasingly when when george gilmer who was then the governor received. marshall citation ordering them to appear etc called the legislature together in informed them that as far as he was concerned orders received from the supreme court for the
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purpose of staying or interfering with the decisions of the courts of the state in the exercise of their constit. jurisdiction would be disregarded. and any attempt to enforce such orders would be resisted with whatever force the laws had placed at his command. that's 1830 now marshall. might have turned tassels into what would become the cherokee cases, but was denied the opportunity to because the legislature on hearing this by after denouncing marshall's order as i'm quoting again a flagrant violation of georgia's rights told the governor basically kill him now and the governor agreed the spatched a rider at midnight on december 23rd and georgia hanged george tassels as scheduled on christmas eve. now this is chilling and i think
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this must have been upsetting to the chief justice and it may well have been at that point that he resolved he had to do something to fix this problem that he had in large part created. helpfully. there was a case in the pipeline that might allow him to do so four days before tassels. george tassels was hanged john ross had informed governor george gilmer that the cherokee were going to file suit. to stop george's in position of its laws and this would be the case of cherokee nation versus georgia the lawyer that they had retained. this is the first of the great cherokee cases was william word some of you may know him. he spent most of his adult professional life in richmond. he served as attorney general of the united states for more years than anyone.
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he was two terms for james monroe and one term for john quincy adams and then he ran for president in 1832 as the candidate of the short lived anti-masonic party and if there any anti-masonic party members here, maybe it's still around. i don't we haven't heard from them lately i guess but in any event he failed in his we have a president wert and died almost immediately after so there you go. we're also by the way is famous for having written two mediocre works according to critics. i haven't i've read both of them and i thought they were okay one was a book called the letters of the british spy, which were serialized and one of the richmond papers and include sort of portraits sketches of famous richmonders and other political figures including john marshall and a lot of the anecdotal information we have about marshall's character and stuff comes from where the other book that he wrote that enjoyed some celebrity was a biography of
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patrick henry. and it appears that it was worked who had henry say this is the first time disappears anywhere. give me liberty or give me death at saint john's church and a lot of people think that that was a quote that weren't made up because because it sounded like something henry might at if he had thought to but that's the first appearance of that quote for patrick henry and any event and here's another this is another sort of trivial piece on work, but maybe sort of interesting the story that i had always heard as as an indian lawyer and law profess that weren't represented the cherokee nation for free, right? this was a principle thing. i mentioned that to one of chief hoskins predecessors chad smith one time and he said actually we've got his bill so so that story may. anyway, we'll see but there so that may not be true either history. okay, so we're teamed up with a guy named john sergeant who was a frequent peer before.
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the supreme court and filed this case in the supreme court and his theory was and this is where the case will be argued. george doesn't show his theory. was that the federal courts had jurisdiction and had original jurisdiction, which meant he didn't need to go up through the lower federal courts before he went to the supreme court. he could go straight there because the constitution gives the court the supreme court original jurisdiction in cases where a state is a party and georgia was a party and it also the federal judicial power extends to suits between a state and foreign states or foreign nations and george is a state and the cherokee nation is a foreign state. it's a far in state because state just means a political entity and it's clearly a political entity. he's got a constitution and stuff and it's foreign because none of its citizens or us citizens, so it has to be
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foreign. it can't be anything else and this is the argument that he made and and this is the and so this is the the argument on which jurisdiction rested and so if the court doesn't find that to be true then they can't consider the case on the merits and that ended up being a big stumbling block. here's the court at the time. we had one justice justice of all who was absent didn't participate but these six guys did and they split three ways. in cherokee nation versus georgia over this jurisdictional question the two guys on the right now, let me back up the two guys on the left smith thompson and in the upper left-hand corner joseph's story said words, right? they're a state they're foreign. they're far in state and so we can go ahead and hear this case the two guys on the on the the right henry baldwin and william johnson said, no, it's neither foreign nor a state and and
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johnson in particular said if we you know, if we admit these guys to be a foreign state then every tribe is a foreign state and we're just going to become an indian law court because every tribe everywhere is gonna sue for something or other and we're gonna have to act as a trial court and may well have been that you know concerned with caseload that motivated him baldwin was a jackson appointee and we're gonna learn more about baldwin movementarily and but he just he just didn't in any of this, he didn't think much of tribes. marshall and john mcclain came up with with a third path here and marshall ends up writing an opinion which he calls the opinion of the court. although it's it's really only joined by himself and one other guy john maclean who's another jackson appointee and what marshall says is the cherokee nation are a state. but they're not a foreign state. there's something different they are and this is his phrase a
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domestic dependent state or he used the phrase domestic dependent nation. well, what does that mean? he says well, it's like this they're they're not entirely free-standing their relationship and i'm quoting now to the united states resembles that of a ward to his guardian and this will be the the source of what will later come to call the guardian ward relationship doctrine between the federal government and the tribes so, okay. well, what does that mean? well, we don't really know says marshal we know we know what it doesn't mean it. it doesn't mean that we have jurisdiction. it means we don't have jurisdiction and so we're going to have to kick this came back case back now. george is celebrates great victory, but marshall at the end of the opinion rights that in a proper case with proper parties, we'd be happy to entertain the merits of the claim that the cherokee nation is making and that's an invitation to cherokee
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nation to try again and they will the very next term they'll try again after the arrest of this guy samuel worcester. who is a young new england missionary. he's also the postmaster federal postmaster and cherokee nation, which might have bought him exemption from georgia law, but he didn't make that argument samuel wister and eliza butler who was another new england missionary or arrested by georgia for failing to have a georgia state license as natives to be in cherokee nation territory their sentence to a period of years in jail. they request relief from the supreme court of the united states and john marshall says, this is the proper case with proper parties. so worcester versus georgia decided in the 1832 term becomes the case where we finally get a resolution of george's claim to extraterritorial legislative jurisdiction. how does it work out?
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well, this is a fascinating opinion part of it the part. that's probably best remembered is the part in which marshall says the us has a treaty with the cherokee nation in which it's contemplated that they are a separate state capable of entering into treaty relations with the us given that george can't assert it has legislative authority over them. we have a conflict between what the federal government thinks in a treaty and what a state government wants to 2 and under the supremacy clause of the us constitution if there's a conflict between the federal government the state the federal government wins, so that might have decided that the marshall had one more thing to do and that was to fix the problem. he had created in johnson versus mcintosh and so the bulk of the worcester decision is devoted to essentially a rewrite without ever mentioning it by name of the johnston macintosh discovery rule in johnson mcintosh as i
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mentioned earlier, the court said that on discovery what the discovering sovereign required was ownership of the underlying title and an exclusive right to purchase basically what the court says in worcester is upon discovery by european sovereigns what the europeans acquired was an exclusive right to purchase. period there is no vesting of fee title in the discovering sovereign. in the worcester version of the discovery doctrine rule, and he really goes out of his way to say it. it's a real it's a fascinating sort of you get a fascinating insight into the way that marshall drafted because he doesn't want to say we're overruling a case. we just decided he never overruled a case that he had decided because that would have undermined the authority of the court potentially the confession of error. so instead he says here's what the european scott. that's all they got. they didn't get anything else. there's nothing more here folks.
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nope, nothing but preemption. that's all there is and nobody has ever understood otherwise, and then he moves on and it is that long the section is three or four sentences of his making sure we get the point that there's nothing more without ever mentioning what the something more might be. but of course the purpose for this is to avoid this situation recurring so that we won't have other states attempting to claim the authority to legislate over indian. based on their ownership of the soil because they don't after worcester versus georgia. how does this play with the other justices? everybody joins him with two exceptions john mcclellan writes a concurring opinion that i find reprehensible. a claim basically says yeah all that's right. but if the tribe if a tribe were so degraded. that you know, it couldn't really function then it would be okay for a state to exercise legislative authority and the question of whether that was proper probably wouldn't be a
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gestational question a question for the court to consider which is essentially as i read in an invitation to georgia go around start killing people, right and eventually they'll be degrade and then you can take over and we won't stop, you know, he's an opinion of one but he says this mclean it might be mentioned was a perennial presidential candidate and i suspect that he was campaigning for southern votes in this opinion and thinking you wouldn't risk losing new england because he had agreed with the majority. last opinion is by henry baldwin and i'll say something briefly about baldwin baldwin was a nut. apparently he was jackson appointee was from pennsylvania. he wanted to be secretary of the treasury jackson's vice president john c. calhoun had already given that job to a south carolina friend of his so they put baldwin on the court to give him something to do and it cracked somehow he was there were stories. he had a running fight with the court reporter henry wheaton wheaton would write letters of complaint to john marshall and joseph story saying, you know,
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is it the court last night and baldwin is sitting in his room in the dark where nothing but a socks and i mean it was weird stuff like that baldwin repeatedly, they the reporter of decisions is the one who handled publication of opinions and baldwin refused to give stuff to wheaton because he couldn't stand him for some reason and so if you read through the court reports, it's they always conclude with mr. justice baldwin decline to deliver his opinion to the reporter, but he descended any almost the scented for some reason. other what happened in? wester versus georgia, he dissented he declined to give his opinion to the reporter, but that doesn't mean it never it never showed up and i discovered this by accident when i was researching. this this book on these cases and there's a can tell you this is basically had to do with my being really tired and pushing the button on a microfilm reader for holding it for too long, and it was one of the and it's paid you shot forward and i was looking and i think it was the washington globe from the week or so after the worcester versus georgia opinion came out and i
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shot ahead. i don't even remember how long and the screen froze i jumped back, you know sort of in shock at the noise and and there it said the opinion of mr. justice baldwin in the case of worcester versus georgia, and i started reading it and it was nuts and it was long. it was something like 50 or 60 pages long and so i ran home because i thought this isn't i've never didn't know this thing existed and i did a lot of investigating and i called the supreme court and stuff. it turns out i'm probably the first human it may be ever to have read the entirety of mr. justice baldwin's descending opinion in worcester versus georgia, and if you're interested in it, and i do not recommend this, but if you're interested in it the supreme court historical society published it they were excited. it was an unpublished and unknown supreme court opinion from a landmark case. it's basically what baldwin's position was if memory serves was that the rid of error process which we inherited from england, which is the process by
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which you take appeals from lower court required that files be sent by the clerk of court of the lower court and this file had been sent by the chief judge of the lower court. and so what should happen is it should be sent back and the clerk of court should get it and send it up again and then we could decide and he took 55 or so pages to say that. long history of the writ of error process if anybody's interested there, you know occasional humorous there's one line and this is what you get from reading every word where he says something like, you know, those some may think me mad with the flights of fancy of spring and it's like, hahaha. you're thinking yeah. yeah kinda anyway, so he goes on but what makes baldwin a hero in my judgment after all this is when i discovered the newspaper was publishing it and they then they told us why it was so late. they said mr. justice baldwin
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declined to give his opinion to the newspaper for publication until some period had passed because he didn't want the georgians to have any grounds for refusing to obey the expected supreme court mandate to let those two guys out of jail, and that's heroic. i think even though we disagree he didn't want to give them anything to hang on. he was a team player for the court despite his eccentricities and the fact that he was a jackson. pointy which made this even more heroic in my judges. i mentioned that because he's a bit of a hero of mine. i don't think people know enough about it. now, what did what did jackson say? well famously this is the point at which history records that jackson says john marshall is made his decision. now let him enforce it. i mean truth. he almost certainly didn't say that that's a quote from horace greely. it's a bit like the patrick henry quote later, but he may have thought it and it's certainly through that. he did nothing to help out in the early days with the
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anticipated mandate a mandate is an order would have been in order from the supreme court to the georgia courts to order the jailer to let these guys out of jail, but before that was issued the supreme court broke up and so it was going to be the end of the summer before a mandate would issue which gave george a time to decide what it wanted to do. and initially it will not surprise you in the least to learn that georgia said hell, no, right? we're not we're not. to let these guys out of jail. we're going to keep them there and there are some indication that the jackson ministration wouldn't have done anything to force them to do. otherwise it at least initially the problem. is that that south carolina was watching this whole thing develop. and south carolina decided it's time to act against the federal tariff. so that summer they cooked up the nullification ordinance. which some of you may remember south carolina believed that the federal government did not have
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the power to pass a protective tariff, which was hurting imports coming into south carolina, which produced nothing but indigo and rice and you can only get so far in life with indigo and rice, they needed stuff like clothing and you know, so they were opposed to a high protective tariff nullification ordinance said since we can't push our new tariff or repeal is tariff in congress. we don't have the votes. let's let's adopt this view. the constitution is a compact among the states. state where a party we get to interpret it as anybody else does and so our we don't want to impose our interpretation on by else. we're kindly folk, but if we believe that your federal interpretation is wrong, then we have the right as a party to the deal to nullify the impact of a federal statute past pursuant to your understanding, which means you can collect the tariff anywhere you want accept south carolina, and they go even farther and if you try to we'll
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send you to jail. they made it a state crime for federal tax collectors to try and collect tariffs. they made it a crime for judges to try and enforce tariff collection. they'd put you in jail etc and they thought they could do this that summer because andrew jackson was letting georgia stand up to the supreme court south carolina's action. i think push this into a whole new playing field andrew jackson. who i think probably wouldn't have cared if the missionaries had died in prison was not about to preside over the dissolution of the union which is what the nullification doctrine portended push through the force act which basically empowered him to send the army down to hang everybody and it being jackson. that was a threat that was taken seriously and south carolina repealed the nullification ordinance at which point jackson got on the 1832 equivalent of the phone called the governor of georgia and said you let those missionaries out of jail. and they hemmed and hod and at
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the last possible moment the day that the supreme court reconvened the day that a mandate would have had to issue and we would have had a constitutional crisis the governor of georgia let the two missionaries out of jail. and so that sort of ended at least the story of worcester versus georgia with the victory for the tribe it appears. yay. but unfortunately history had sort of one more wrinkle in store. and that's that jackson decided. there's no way i'm going to let the cherokees stay now and so he started a campaign political and press campaign to get rid of them lewis cast was his secretary of war cast and already been tasked with negotiating removal treaties. he had persuaded or the government had persuaded the choctaws to remove as i mentioned in september 1830 now he went to work on the chickasaws and the creeks
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convinced them that this worcester decision was not going to stand there's no way this could be the law johnson mcintosh was the law the state acted properly and you guys better get out and take the same deal the choctaws did and the creeks agreed. majority did and all of these tribes by the way left remnants behind groups that refused to move including the purge creek band who were represented here today, but also the florida seminoles who were subject to this the mississippi the eastern cherokee and the mississippi choctaws who were groups of the tribe. that didn't leave but so cass engineered those cass road a piece for publication called examination of the cherokee question, which got published in newspapers all over the country, which was the jackson ministrations argument that worcester had been wrongly wrongly decided and and so things started to appear to be turning at least with tribes that weren't the cherokee the cherokees refused to go anywhere still they had a court victory.
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they didn't have to go anywhere this map shows. you can see chickasaw. those are the dates of the removal trees choctaw's 1830. chickasaws 1832 creeks 1832 seminoles, 1832 and 33, but the is no they're still there. that's a later date up there. and so so, why did the cherokees go and i'll tell you what, i think. finally drove the cherokees to depart georgia is a rather the supreme court justices are getting old by this time marshall marshall's last term is the 1835 term. chickasaws are the cherokees will hold out that long, but it isn't marshall's death. i think that triggers this, it's william johnson's william dies in 1834. and that leaves a seat jackson fills it. with this guy james wayne who
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had been a georgia jurist and a vigorous proponent of indian removal. then the same day that wayne is sworn in justice gabriel duval resigns which opens up another seat for a jackson appointment. so he's already got one two, this is three. this will be four justices on a court of seven duval's resignation makes clear that there's no turning back the majority of the supreme court are going to be jackson appointees pro removal and we all know about the politics of supreme court appointments the cherokees. send two delegations to washington in 1835 after wayne is sworn in and after duval is resigned in the open seat is in process of being filled with yet. another jackson appointee one group is john ross and his national party who were the elected government and they show up to say we're staying right? but there's a second group headed by sub chief named john
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ridge. who i think reading the writing on the wall makes the call. let's get the best deal we can and so the ridge faction, which is known in cherokee history. is that the treaty party or the treaty faction though unelected and operating illegally under cherokee law agree in the spring of 1835 to sign a removal treaty, which will be signed in final form by that faction in the capital of newachota in december 1835, and it's that treaty in which the cherokee nation again illegally executed under cherokee law will agree to remove to leave its lands and remove west and this is the beginning then this complicated story of the trail of tears migration for the cherokees and of the trails of tears migrations for the other tribes.
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thank you. now i think. do we want to do a minute of q&a or do you want okay? kevin kevin and i are going to tag team q&a for just a few minutes since i went a little longer than expected. there's so much to cover. that's right. all right, so there are microphones in the aisle if anyone has any questions. questions are not required by the way, but if you have any questions in the early 1800s land anywhere presumably was fairly cheap. was there any possibility that? money could be gotten together and buy land for cherokees and
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other indian tribes and give them title to the land. they bought and avoid the problem. well, that's kind of what happened with removal right that that land was purchased from tribes indigenous to what would be the indian territory by the united states and then given to the cherokees and they would own the title said it's a bit of i think what happened is what you're saying. yeah. um i just wanted to say my second great grandfather and his brother were also jailed with worcester. oh good. i want to talk with you later and get wondered if you're new anything about that. i don't and actually these are stories that aren't widely known and i'm one of my missions in life is to get more publicity for the other folks like like butler when they filed a day in
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1842 worcester wrote letters and i'll be happy to give you a copy. yes driving exactly what happened to them and they're imprisonment how they were treated and i would love that. it's very thank you. i i understand that the cherokees had. acclimated to their particular settlements and where they were in the country a lot of them were trading in commerce and were part of society so to speak the question is were the indians so hated and despise that. we as a nation couldn't consider offering them citizens yet. and given them an option of being a citizen of, georgia or north carolina instead of moving away to another property that
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the country owned and so the question is, how did they how did the communicate or the indians actually taking advantage of? yes, and i'm sure though and in the early the earlier part of your question. yeah, so citizenship actually will become a deal in some of the removal treaties. you know, you you give us your land and it wasn't state citizenship. it was united states citizenship. there's actually a group who lived whose lands are just east of where i am in central oklahoma the citizen potawatomi nation and the citizen part. is that as a part of their removal deal. they were granted us citizenship, but i don't think it was so much so there are two parties we're talking about here, so i can't really speak to the the any sort of collective congressional animist towards native people, but i can't tell you a lot of native people who aren't particularly interested in here united states citizenship. it's not an unmixed blessing right? they were citizens of their own
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nations and and happy to sort of live life as citizens of cherokee nation or chickasaw nation or or whatever. there are individ. little cases of sort of tribal citizens exactly as you say sort of becoming a culturated through commercial relations, and then maybe through intermarriage who did individually come and become citizens of states and sort of leave their tribal communities, but i think especially in those early days there wasn't any real appetite for that from the from the tribes themselves and and there and there was a probably a fair amount of you know hatred maybe probably in a lot of instances is dead on but also jealousy, you know, desire for property and a real desire to just move move people out. so it's very it's a very complicated story, but you raise a really interesting question some of you may not know when tribal citizens got united states citizenship universally by active congress and it may
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surprise you 1924. 1924 and there were some states that didn't grant state citizenship. to tribal citizens until the 1960s. i would just add on the non-legal side of citizenship that the earlier period that i was describing the 1787 90s the the image that you saw in the washington peace medal of essentially native americans adopting all the practices everything but the legal conception of citizenship and sort of adopting agriculture the western agriculture and and practicing those what that was all over the place people had that sort of sense that that would that would happen and that they would essentially acclimate and become transformed in that way, but also as henry knox said within 50 years there won't be all that many left anyway, so there's a weird sort of sense of will the will native people's acclimate. well and again, they use the term civilization all the time or will they disappear or will
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they move west all those things are sort of overlapping and people have sense that all of those things are are simultaneously possible when obviously none of none of them could could happen simultaneously. it's an interesting world. there and that earlier period of what will happen. two things really one the titles that were supposedly given to the american indians. did they include mineral rights at that time? and also would you say that george's position against the federal government? was that sort of the beginning of the state's rights? kind of idea. do you think or yes, you want to talk about? yeah, go ahead. yeah, so overall professor. yeah. so so yeah, so the second one. yeah. so this is george's was one of the earliest loud blasts of states. it wasn't the first i mean you have going back in the 18 20s, virginia made noises after he's called cohen versus virginia about states. and so the i mean you go


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