An Historical Analysis of the Legal Status of the North Carolina Cherokees

NORTH CAROLINA LAW REVIEW Volume 58 | Number 6 Article 2 8-1-1980 An Historical Analysis of the Legal Status of the North Carolina Cherokees Ben Oshel Bridgers Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Ben O. Bridgers, An Historical Analysis of the Legal Status of the North Carolina Cherokees, 58 N.C. L. Rev. 1075 (1980). Available at: http://scholarship.law.unc.edu/nclr/vol58/iss6/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact . AN HISTORICAL ANALYSIS OF THE LEGAL STATUS OF THE NORTH CAROLINA CHEROKEES BEN OSHEL BRIDGERSt The CherokeeIndians ofNorth Carolinahavefought many battles in their strugglefor survival and legalrecognition. They have endured constantly changing Indianpolicies of both the federal and the state governments. In this Article, Mr. Bridgers, Tribal Attorney for the EasternBand of Cherokee Indians,attempts to clarify thepresent legal status of the Cherokees by presenting a chronologicalanalysis of the historicaland legal developments affecting this Indian tribe. Throughout a muddle ofinconsistent court decisions,as well asfederalandstate statutes, Mr. Bridgers traces the issue of thejurisdictionalauthorityof North Carolinaover these Indians. He argues, contraryto theposition of the North Carolina courts, that the federal government has preempted authorityover the Cherokees andthat the generalprincip/es of federalIndian law should be appliedto the North CarolinaCherokees. As this Article went to print, the Fourth Circuit accepted Mr. Bridgers' argument and held that North Carolina could not constitutionally tax the income earnedon the Cherokee Reservation by members ofthe Bandresidingon the Reservation. The court also held that a county could not tax the Cherokees'personalproperty located on the Reservation.#4 INTRODUCTION As Chief Justice John Marshall remarked in one of his landmark opinions, "The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence." 1 The uniqueness of this relationship has not been altered significantly in the nearly 150 years since Marshall's observation. Of all the Indian tribes encountered by the white settlers, none has been more persistent in its struggle for existence and legal recognition than the Cherokees of North Carolina. These Indians, now known as t Member, Holt, Haire & Bridgers, Sylva, N.C.; Tribal Attorney for Eastern Band of Cherokee Indians; B.A. 1961, Hendrix College; M.A. 1962, University of Arkansas; J.D. 1970, University of North Carolina. # Eastern Band of Cherokee Indians v. Lynch, No. 79-1588 (4th Cir., filed Oct. 10, 1980). Mr. Bridgers argued the case for the Eastern Band. For a complete discussion of this case and its implications, see note 290 infra. 1. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831). 1076 NORTH CAROLINA LAW REVIEW [Vol. 58 the Eastern Band of Cherokee Indians, are comprised of descendants of approximately 1000 Cherokees who refused to leave their homeland in the Smoky Mountains of North Carolina during the removal in 1838 to the Indian Territory west of the Mississippi River. 2 The Cherokees who remained did so after all their land had been taken pursuant to a treaty with the federal government 3 and despite great pressure by both the federal and state governments to move them to the west.4 Pressure for their removal did not abate until after the turn of the present century.5 In the meantime, these Cherokees patiently sought to achieve a legal status that would enable them to live their own way of life in their aboriginal homeland. In their attempt to gain a settled legal status, the Cherokees have been plagued by an inconsistent line of -federal and state statutes and court decisions, and. a vacillating Indian policy of the federal government. There has been confusion over who should control these Indians-the federal government, the state government, or the Tribe itself. In spite of a score of congressional acts and some forty court decisions specifically dealing with the North Carolina Cherokees, this important legal question remains unanswered: What is the jurisdictional authority of the State of North Carolina over the Cherokee Indians residing on the Cherokee Indian Reservation? Surprisingly, considering the volume of litigation involving these Indians, no court or legal commentator has ever examined this question in depth. The courts have accepted earlier cases as determining jurisdictional questions for all time.6 But close scrutiny of the cases raises serious doubts whether the courts have always reached the proper conclusions, or whether they even have used the proper legal analysis. By applying well-established principles of federal Indian law to the North Carolina Cherokees, the federal government appears to have preempted supervisory duties and jurisdiction over the Cherokees. Except for those matters specifically designated to North Carolina by Congress in special Cherokee legislation or in general Indian legislation, the State presently is without proper authority to impose its laws and regulations on these Reservation Indians and is without legal basis to enforce them against the Cherokees in state courts. 2. 3. 4. 5. 6. See text accompanying notes 75-80, 119-124 infra. See text accompanying notes 75-77 infra. See text accompanying notes 79-80, 121-122 infra. See text accompanying notes 157-162 infra. See text accompanying notes 344-432 infra. 1980] CHEROKEEHISTORICAL ANALYSIS I. A. 1077 THE TREATY PERIOD (1785-1835) The Treaties During the eighteenth century the Cherokees inhabited land over parts of what are now eight states.7 These lands bordered the original colonies and were in the direct path of the western expansion of white settlers. During the colonial period between 1721 and 1783 the Chero-8 kee nation entered into ten separate treaties with the various colonies. These colonial transactions were called treaties, but really were only concessions forced upon the native Cherokees, who resisted each in turn only to finally sign under protest after being given solemn assurances that no further demands would be made.9 This pattern was to be repeated after the colonies revolted against Great Britain. The first treaty between the United States government and the Cherokees was the Treaty of Hopewell, executed in South Carolina in 1785.10 This treaty fixed boundaries for the Indian country, withdrew the protection of the United States from settlers on Indian lands who would not leave within six months, made arrangements for the punishment of criminals, and declared in solemn tones, "the hatchet shall be forever buried."" North Carolina, however, lodged a formal protest with Cong (...truncated)