With the creation of the U.S. Constitution and a national government, political and legal policy-makers had to determine how to deal with Native American tribes that resided on lands granted to them by treaties. By the 1820s, U.S. policy toward what was regarded as the "Indian problem" was one of forced removal and resettlement to lands to the west. In 1830, Congress passed the Indian Removal Act (4 Stat. 411) and appropriated $500,000 for that purpose, signaling a determination to affect great changes.
The Cherokee, faced with growing hostility to their presence in the state of Georgia, were the first group of Native Americans to press their legal rights all the way to the U.S. Supreme Court. The Court issued decisions in two cases that are commonly known as the Cherokee Cases: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832). These are landmark cases that have continued to shape judicial analysis of disputes between tribal governments and state and federal governments. A key issue in both cases was the legal and political status of Native American tribes. The Cherokee claimed they were an independent, sovereign state, akin to a nation such as France or Great Britain. The Supreme Court rejected this claim in the first case but developed a different theory of sovereignty in the second decision.
In Cherokee Nation, the Cherokee asked the Court for an Injunction that would prevent Georgia from executing laws that the tribe contended were being used to drive them off their land and to "annihilate" their existence as a political society. Chief Justice John Marshall, writing for the Court, acknowledged that the plight of the Cherokee and other Native American tribes was real: they were "gradually sinking beneath our superior policy." The Court, however, could not base its analysis on sympathy.
Marshall concluded that before the merits of the Cherokee case could be considered, the Court had to determine whether it had jurisdiction to hear the case at all. The Cherokee argued they were a foreign state, pointing out that the tribe was a distinct political society that managed its own affairs, and that both the colonial and U.S. governments had regarded them as a state. The fact that the federal government negotiated treaties with the Cherokee seemed to be good evidence that the tribe was regarded as a foreign state.
The Court rejected these claims. Marshall stated that the Cherokee tribe was not a foreign state "in the sense of the Constitution" since the Indian Territory was located inside the geographical and jurisdictional boundaries of the United States. Moreover, the Cherokee had acknowledged, in the very treaties in question, that they were under the protection of the United States. Therefore, a better classification for the Cherokee and other Native American tribes was that of "domestic dependent nations."
The Court noted that the Constitution was silent on the issue of permitting the federal courts to hear disputes between states and Indian nations. Chief Justice Marshall found that the Commerce Clause empowers Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This clause clearly distinguished between foreign nations and Native American tribes, making them distinct entities. The relation between the tribes and the United States resembled that of a ward and his guardian rather than of coequal states. Based on this analysis the Supreme Court dismissed the case for lack of jurisdiction.
The Cherokee returned to the Supreme Court the following year in Worcester, and this time had the opportunity of arguing the merits of the case. The issue in question involved Georgia legislation, which made it a crime for white persons to live in Cherokee country without first obtaining a license from the state. The state of Georgia indicted Samuel A. Worcester, a missionary of the American Board of Commissioners for Foreign Missions, and six other white persons for the offense of "residing within the limits of the Cherokee nation without a license." All seven defendants were convicted and sentenced to four years in prison.
Worcester and the other defendants appealed to the Supreme Court, arguing that Georgia had no jurisdiction over Cherokee sovereign territory. Under the Constitution, Congress has the power to regulate commerce with Native American tribes. The Indian Commerce Clause (Article I, Section 8, Clause 3) is the main source of federal power over Native American tribes. Worcester contended that this clause demonstrated that the federal government had exclusive jurisdiction over the establishment and regulation of intercourse with Native Americans. In addition, Worcester pointed to treaties between the United States and the Cherokee nation. No state could interfere with these agreements, which were the supreme law of the land.
Chief Justice Marshall, writing for the majority, agreed with Worcester's legal position and found that the relationship between the existing treaties and the constitutionality of the state law were the paramount issues. Marshall reviewed the colonizing of the continent and noted that the colonists' legal basis for claiming the land as their own was questionable:
It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
Marshall analyzed two treaties negotiated between the United States and the Cherokee. He found that these agreements recognized the national character of the Cherokee and their right of self-government. In addition, the treaties guaranteed their lands, and the federal government assumed the duty of protecting the integrity of the agreement.
Marshall then pointed out that from the beginning of the Republic, Congress had enacted a series of laws to regulate trade and intercourse with Native American tribes. These laws treated the tribes as nations, respected their rights, and sought to give the tribes the protection that the treaties stipulated. He concluded that "Indian nations are distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States."
In light of Cherokee Nation, a key question was whether a treaty negotiated with Native Americans should be treated differently than one negotiated with a foreign nation. Marshall concluded that it should not:
The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.
Therefore, Marshall ruled that the Cherokee nation was a "distinct community occupying its own territory," where the laws of Georgia had no force. The Cherokee were vested with the power to determine whether the citizens of Georgia could enter their territory, subject to treaty provisions and acts of Congress. He concluded that "the whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States."
The decisions involving the Cherokee nation established the basic principles of Native American sovereignty. Native American tribes, by occupying North America, possessed some elements of preexisting sovereignty. This sovereignty could be diminished or eliminated by the United States, but not by the individual states. Finally, because the tribes had limited sovereignty and were dependent on the United States for protection, the United States had a trust responsibility. This meant that the U.S. government was a trustee with the duty of looking after the best interests of Native Americans, who were wards of the government.
The legal victory proved of little benefit to the Cherokee nation, however. The demand for land in Georgia grew more intense after gold was discovered on Cherokee land. More ominously, President Andrew Jackson, who favored the removal of the Cherokee nation and other Native American tribes, refused to enforce the Court's decision. His refusal illustrated the problem that occurs when one branch of government refuses to honor the decision of another branch. During Jackson's term of office (1829–37), 94 removal treaties were negotiated, demonstrating his resolve to move Native American tribes westward.
In December 1835, the Treaty of New Echota, signed by a small minority of the Cherokee, ceded to the United States all their land east of the Mississippi River for $5 million. Though the tribe sought to repudiate the treaty, they were unsuccessful. Under the Indian Removal Act, the Cherokee were forced to leave Georgia beginning in 1838. Nearly a quarter of the 15,000 Cherokee died during the relocation. The Cherokee called the western trek to Oklahoma and Indian Territory the Trail of Tears.
Berutti, Ronald A. 1992. "The Cherokee Cases: the Fight to Save the Supreme Court and the Cherokee Indians." American Indian Law Review 17 (spring).
Norgren, Jill. 1994. "The Cherokee Nation Cases of the 1830s." Journal of Supreme Court History Annal 1994.