The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians

American Indian Law Review Volume 17 Number 1 1-1-1992 The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians Ronald A. Berutti Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indigenous, Indian, and Aboriginal Law Commons Recommended Citation Ronald A. Berutti, The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians, 17 AM. INDIAN L. REV. 291 (1992), https://digitalcommons.law.ou.edu/ailr/vol17/iss1/12 This Note is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . THE CHEROKEE CASES: THE FIGHT TO SAVE THE SUPREME COURT AND THE CHEROKEE INDIANS Ronald A. Berutti* Introduction The United States Supreme Court cases Cherokee Nation v. Georgia1 and Worcester v. Georgia2 (the Cherokee cases) were the culmination of a longstanding political dispute over the rights of American Indians in the face of the expansionist policies of the United States. Both Cherokee Nation and Worcester were argued during the administration of avowed "state's rights" supporter President Andrew Jackson, who had no sympathy for the Indian cause. Embroiled in political intrigue, the Cherokee cases can be seen as the historical low point of the Supreme Court. However, the ultimate result of the Cherokee cases was to greatly enhance the protections afforded American Indians. Two quotes - one real, one allegedly real - highlight the dynamics of these cases which pitted Chief Justice John Marshall, an ardent Federalist, against President Jackson. The first quote, taken from Chief Justice Marshall's obituary,3 reads: John Marshall, Chief Justice of the Supreme Court of the United States, died at Philadelphia on the 6th day of July, 1835 ... His private virtues as a man, and his public services as a patriot, are deeply inscribed in the hearts of his fellow citizens. His extensive legal attainments, and profound, discriminating judicial talents, are universally acknowledged. His judgments upon great and important constitutional questions affecting the safety, the tranquility and the permanency of the government of his beloved country - his decisions on international and general law, distinguished by their learning, integrity and accuracy, are recorded in the reports of the cases adjudged in the Supreme Court of the United States, in which he presided during a period of thirty-four years. © 1992 Ronald A. Berutti J.D., 1992, Seton Hall University School of Law; B.S., 1988, University of Massachusetts, Amherst. This note is dedicated to my parents and to Keva Treacy. Second place winner, 1990-91 American Indian Law Review Writing Competition. 1. 30 U.S. (5 Pet.) 1 (1831). 2. 31 U.S. (6 Pet.) 515 (1832). 3. 35 U.S. (10 Pet.) v (1835) (obituary of Marshall, C.J.). * Published by University of Oklahoma College of Law Digital Commons, 1992 292 AMERICAN INDIAN LA W REVIEW [Vol. 17 As long as the c6nstitution and laws shall endure and have authority, these will be respected, regarded and main4 tained. The second quote is attributed to President Jackson just three years earlier. Upon learning of the Worcester decision in 1832, President Jackson allegedly said, "John Marshall has made his decision; now let him enforce it."s Whether this quote is real or imagined, Jackson's refusal to execute the Worcester mandate could have rendered the Court impotent. Should a President fail to execute a Supreme Court decree because of his ideological opposition to it, he would effectively be vetoing the Supreme Court's interpretation of the Constitution and replacing it with his own interpretation. Such precedent could potentially destroy the Supreme Court's role as a functional branch of government, and its opinions could be rendered meaningless on a presidential whim. This was the scenario of the Cherokee cases. How is it that Chief Justice Marshall was so highly praised only three years after President Jackson refused to execute Worcester? How did the Supreme Court survive President Jackson's failure to execute the law, as was his constitutional duty? 6 The answers to these questions are the result of many contributing factors. In order to understand those factors as well as the Cherokee cases themselves, an overview of the United States' Indian policy is necessary. I. A. United States Policy Toward the Indians Removal Following the Revolution, the United States expanded as its population increased and American cotton became the nation's major crop. Since it ravaged the soil, cotton perpetually required new land upon which to be grown. The Indians, who possessed thousands of miles of land east of the Mississippi River, became an obstacle for those who needed or wanted that land. 7 To many, "removal" was the answer to this problem. Removal basically entailed moving the Indian tribes west of the Mississippi River. Displacing the Indians would enable white Americans 4. Id. 5. ARTHUR M. SCHLESINGER, THE IM.IA.L PRESMENCY 37.40, 56-57, 157-58 (1973). 6. U.S. CONST. art. II, § 3 reads in pertinent part, "[The President] shall take care that the laws be faithfully executed." 7. See generally Robert A. Williams, Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law, 31 Aiz. L. REv. 237, 243 (1989). https://digitalcommons.law.ou.edu/ailr/vol17/iss1/12 No. 1] NOTES to have plenty of farmland. As early as 1789, it was argued (in a report to Congress by Henry Knox, President George Washington's Secretary of War) that Removal would be America's wisest policy in dealing with the Indians.8 Others- of the day concurred. Benjamin Lincoln, an American statesman and Revolutionary War general, wrote that "civilized and uncivilized people cannot live in the same territory or even in the same neighborhood." 9 These discourses in favor of Removal during the Constitution's formative years cast an ominous shadow over future Indian relations. In 1802 the United States government took a large step toward making Removal a national policy. In what was known as the "Georgia Compact," Georgia agreed to cede to the national government all of its western lands which were occupied by Indians. In return, the United States would extinguish Indian title to these lands as quickly as possible.' 0 Obviously, Removal was the easiest way to accomplish this. One of President Thomas Jefferson's primary purposes for making the Louisiana Purchase in 1803 was to effectuate this policy." In a letter written to Louisiana Governor William Henry Harrison, Jefferson wrote, "Our settlements will gradually circumscribe and approach the Indians, and [the Indians] will in time either incorporate with us 2 as citizens of the United States, or remove beyond the Missi (...truncated)