Journal of Supreme Court History

The Cherokee Indians and theZYXWVUTSRQPONMLKJ Supreme CourtdcbaZYXWVUTSRQPONMLKJIHGFEDCBA S T E P H E N B R E Y E R xwvutsrqpon In 1838, the United States and the State of Georgia forced the Cherokee Indian tribe to leave its home in Georgia and move to the West. The tribe did not want to move. It believed it had a legal right to stay, and in the early 1830s it brought two actions at law designed to enforce that legal right in the Supreme Court of the United States. The story of those lawsuits is a story of courts caught in a collision between law and morality on the one hand and desire and force on the other. It forces us to examine the relation between law and politics, particularly with respect to the Court’s ability to enforce its judgment during the early years of the Republic. I B ackground We shall begin the Cherokee story during the Revolutionary War. With their Creek and Choctaw neighbors, the Cherokees hunted, fished, and made their homes upon land that now comprises Northern Georgia and Eastern Tennessee. Unfortunately, they supported the British—the wrong side—during the war. However, in May 1777 they signed a peace treaty with the newly independent American states that permitted them to retain their land in Georgia. In a second treaty, the Treaty of Hopewell, and then a third treaty named after the Holston River, the United States promised it would protect Cherokee land and guaran­ teed its boundaries. Congress ratified the third treaty, which contained that guarantee, in Philadelphia in 1793, well after the U.S. had adopted its Constitution and the thirteen inde­ pendent states had become a single nation. During the next forty years, the Cherokee tribe dramatically changed its way of life. In 1817, those who wished to lead the hunting and fishing life (about one third of the tribe) moved to Arkansas, under the auspices of a treaty with the U.S. that gave the hunters and fishermen Arkansas land. The Cherokees who remained in Northern Georgia turned to agri­ culture for their livelihood; they lived as farm­ ers, much as did the nearby Georgians. They used an alphabet developed by a tribal leader, 216 JOURNAL OF SUPREME COURT HISTORYZYXWVUTSRQPONMLKJIHG U n d e r th e le a d e rs h ip o f th e g re a t C h ie f J o h n R o ss, th e C h e r­ o k e e s a d o p te d a fo rm a l C o n s ti­ tu tio n in 1 8 2 7 .xwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA Se qu o y a h. The y e s ta blis he d a p rintingp re s s . The y bu ilta c a p ita l, c a lle d Ne w Ec ho ta . And in 1827, under the leadership of the great Chief John Ross, the tribe adopted a Constitu­ tion similar in some respects to that of the United States. At that time the Cherokee pop­ ulation in Northern Georgia stood at about 13,500—including, I am sorry to say, 1,277 black slaves. Since at least the early 1820s, the Chero­ kees had made it very clear that they were happy on their tribal lands in Northern Geor­ gia and did not want to move. President Mon­ roe sent Commissioners to the Cherokees to see if they would sell their lands. The Council of Chiefs replied, “It is the fixed and unalter­ able determination of this nation never again to cede one foot more of our land.” The chiefs then sent a delegation to Washington to re­ mind the President that “the Cherokees are not foreigners, but the original inhabitants of America” and “they now stand on the soil of their own territory.” The delegation added that “they cannot recognize the sovereignty of ZYXWVUTSRQPONMLKJIHGFEDCBA any State within the limits of their territory.” Why, one might ask, was it necessary to emphasize this last point—that a state could not exercise its “sovereignty” within the lim­ its of the Cherokee territory? The answer is that the state...