Our goals. Were excited to finally meet in person. As jenny mentioned, its been about 18 months of phone conferences and planning. Lindsay joined the law faculty at the university of love, italy 1997. He teaches courses in federal law, indian law, comparative and 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 a recipient of the david l. Boren award i should say he was the first recipient of the david l. Boren award. He is an elected member of the American Law Institute and the American Bar Foundation and serves as a justice on the Supreme Court of the cheyenne and the arapahoe tribes. Please join me in welcoming lindsay robertson. [applause] mr. Robertson it is an absolute delight to be here. What didnt get mentioned this is that my dads family is from charlottesville. My moms family is from the tidewater. And i went to law school and did my history doctorate at the university of virginia. [laughter] i am back home, in a sense. Ive been a proud oklahoman for 22 years. And my kids identify as oklahomans. They dont really remember that when they were very young, they lived in virginia. But my oldest child is now a law student at uva. She is back and connecting with her roots, so well see what happens. I think she feels like she is back home, too. I am truly honored to be here. My thanks go out. I would be remiss if i failed to say to preservation virginia, which as been an absolutely fantastic organization to work with and those of you with spare change should contribute mightily to them. Theyre doing important work. And also to the museum, which i think i last visited in the 1960s with my dad. Its changed. [laughter] its changed in a lot of ways. And im excited to have a chance to look around a little bit later. Now to follow up on 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 sort of get into them. And what i want to do is start with sort of the big troublemaker in all of this. Im going to focus on John Marshall and the cherokee cases. And the forced migrations of the five southeastern tribes. But the culprit in all of this is georgia. And im going to start with georgia in 1802. And then im going to move a bit around in time and maybe revisit some of the themes that kevin touched on, dealing with legal rights of indigenous people. This is a map of georgia in maybe 1802. Many of you remember that in the confederation congress, we mentioned virginia ceeded its colonial charters to the new United States. Those will become ohio, michigan, and indiana. North carolina had a bunch of western lands that they claimed or claimed esther lenz under their charted that they ceded to the United States. Those would become tennessee. And georgia had lands that they held on to as long as they could. This is 1802, the last year of greater georgia. Georges charter claims included what would become the states of mississippi and alabama. Different runs of profiting from this occurred in the last decade of the 18th century and the early first decade, as close to 1802 as they could pull off when they lost to the United States. A successive series of georgia legislators attempted to do was sell as much of this land as they could, mostly to new england speculators. Some of you will remember the famous yazoo controversy, which would give rise to a lawsuit. Ill say a word about that now and help set the stage. Theres a legal rule that comes out of thats going to be relevant. Yazoo lands were out in mississippi. In massive quantities sold by the Georgia Legislature to new englanders. This is the final sale, called the new england Mississippi Land company. And they were all scoundrels, but well respected scoundrels. And the Georgia Legislature, we learn, was almost to a man, bribed by these guys to agree to the terms of sale. The only legislator who wasnt bribed was absent. He was homesick. He showed up to get his check. So he wasnt bribed. But the rest of them were. Charles hudson, by the way, has another wonderful book about the yazoo claims and the decision that came out of them. Well, this legislature, having sold off much of georges patrimony, was ousted by the good voters of georgia in the succeeding election. New gang came in. First official act was to tear from the statute book the act that was to authorize the sale of much of georges western georgias western domain. The capital was milledgeville at the time. And they took this sheet of paper to the main square 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 and they handed him a magnifying glass. Many of you i never did this, but many of you did, tortured insects with magnifying glasses. What they had this guy do as they publicly repudiated the active sale as sort of satanically inspired, they had this old guy hold up the magnifying glass and fry the document. And the symbolism was this was the spirit of the revolution, bringing down fire from god. He really cant get cooler than that. Do this sometime if you have something to protest. I sort of liked it as a picture. They did repudiated. In any event, unsurprisingly, the new legislature get sued the new England Land Company. You cant repudiate the sale. Its too late. This claim will make its way to the Supreme Court of the United States in 1910. In its first such act ever, the Supreme Court will invalidate a statute as unconstitutional. John marshall and his grounds are the contracts clause in the constitution that says no state may pass a law impairing the obligation of contract. This was a contract by the state with the Mississippi Land company and the succeeding legislation is unconstitutionally it. Its repudiating it and so its invalid and new England Land Company gets the land. They wont ever actually get the land. It will go to congress. Congress would cut a deal to give the money for it. But part of the problem with the lawsuit and its a fascinating story, the lawsuit. Part of the problem with the lawsuit was it wasnt clear that georgia ever had the power to sell the land in the first place because tribes lived there and it was their land. So, how was it that georgia could do this . Now, im going to a sort of different take on something kevin said. Kevin mentioned that it was commonly understood that tribes, the Real Property interest that tribes had in their land was an occupancy right. And it is true that some people thought that, but it was really unclear that many people thought that. And a lot of people, including jefferson, thought, why would that be . It was their land. And really, it was kind of a nonissue. It was an academic issue for much of the early period. It became meaningful in this case. Because if the tribes owned their land, then indeed georgia had nothing to sell. Except maybe the possibility, what would we call the prescriptive. Their right to buy, but they couldnt sell them the actual land, again because they didnt own it. So somebody had to figure out whether, in fact, they did own some Real Property interest or whether this was some kind of a breach of contract claim. And the Supreme Court had to wrestle with that. One justice, william johnson, who was a jefferson appointee, wrote, of course the tribes on their land. Of course this whole deal is flawed. The majority, John Marshall, hedged and said, its not entirely clear that georgia owned the underlying, what they would call the title to the land. Because were not really sure what interest the tribes have, but whatever it is, maybe its not entirely this is hedging language entirely inconsistent with ownership. Now lets talk about something else. So they moved on and we dont get a clear resolution. But we get enough of a holding that the original grant was valid and speculators could proceed to make their claim. Alright, so that was all out in this western part. Tuck that way, because its going to return. What happens in 1802 is the government finally shakes georgia down enough to cede its title claims. One of the conditions that georgia imposes on the u. S. When it cedes what would become alabama and mississippi is, we want you to get rid of these indians that would be left in the bounds of the state of georgia. Creeks were there. And, importantly for our purposes, the cherokees were there in northwest georgia. Georgia couldnt get rid of them because the constitution vests the treaty power and the federal government. Only the federal government can negotiate treaties with tribes. The constitution also vested the warmaking power and the federal government. So, georgia couldnt constitutionally kick them out. But they got a promise out of the federal government that they would take care of it. And ill show you where these lands were. This is the view, and were about to switch perspectives, of the same territory from the cherokee perspective. Kevin mentioned the treaty of hopewell. These are successive treaties. Hopewell, thats the peace treaty between the cherokee and the United States at the end of the revolution. The Kentucky Lands were given up and then we have another treaty. So by the time of our story, in the 1820s and 1830s, were headed down to the circle at the bottom. So, this is the cherokee perspective all all of this. Heres georgias perspective. By 1830, creeks are in this middle part. Its in the northwestern corner of georgia. And thats the area the georgia that georgia once the feds to clear. And the problem is, it turns out that cherokees dont want to leave. But for a number of years, the federal government will send agents down, usually at the urging of georgia, hey guys, its 1805. Have you got the cherokees to go somewhere . Wherever the president is will say, yeah, well get on that. Theyll send somebody down and say hey, you guys, do you want to go somewhere else . Theyll say no. Alright, see you. Another year or two will pass and georgia will show up and they will have the same conversation. Unsurprisingly, their patients will wear out. Well spend a moment or two with the Cherokee Nation. Who were on the receiving end of these helpful solicitations. The chief of Cherokee Nation for the period that were going to be concerned with, which is the removal period, and on through most of the civil war is john ross, which is a name with which you should be familiar, maybe you are familiar. John ross is the great hero of mid19th century cherokee history. And hell end up in oklahoma , where his descendents still live today. Ross presided over whats been called by one author a cherokee renaissance. In the 1820s, 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 going to make it surrounded by this nonnative population that was rapidly, as kevin illustrated, spreading west. And so, what they decided to do, in part keep their traditions, and at the same time , to a certain extent, modify those traditions in order to better fit into the neighborhood. So, they would become sort of a plantationbased economy, in part. Slavery is legalized because theyre surrounded by georgians. They will develop a written language. And i do want to say a word about this. So, this is sequoias story. Sequoias still very much revered. Hell also end up dying in mexico. Sequoia invented a syllabarie. There is your vocabulary word for the day. A syllabarie is different from an alphabet. Many people think he invented the cherokee alphabet, but he didnt. An alphabet includes one symbol per sound. A syllabarie is one sound for each syllable. So the word sound in cherokee would have one symbol. The syllable for sam. What that means is it has many more symbols than an alphabet does because there are or more combinations of sounds and there are individual sounds. But once you have memorized them its much easier to read. Like my kids, you dont have to sound it out. And the consequence of this truly ingenious creation, the Cherokee Nation became widely conceded to be almost overnight, the most literate Political Community in the world. People estimate Something Like 95 literacy, which was way more than georgia at the time. [laughter] at the time, right . [laughter] i didnt mean that. [laughter] so, the presence of a syllabary enabled the creation of written newspaper and written documents and that sort of thing. And so what we have, and the construction of a new constitution and new capital city. The place they chose, a city. Its still in northwest georgia. Thecan visit it today at georgian state park. Perhaps ironically. Georgians have very well constructed, its worth a visit. The Council House is here. Theres a Supreme Court building, which is charming, which is there. This is just a sample of the buildings they have set up. This is the Cherokee Phoenix offices printshop aware the newspaper was printed. Still in print, the cherokeephoenix. I imagine you could subscribe. Its available online, as well. 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 its intent to remain, essentially. They adopted a constitution in 1827. And the constitution included, among other things, a separation of powers government and that sort of thing. It included also a statement of boundaries. These are our lands. And an affirmation that these will always remain our lands. So, its clear from the adoption of the constitution that they from the cherokees vantage, theyre not going anywhere. This, i think, is one of the things that drove the georgians to contemplate more extreme action, the cherokees having failed to agree to remove pursuant to federal treaties over the previous two decades. The other thing i think that kicked the georgians into life in the late 1820s was that gold was discovered in Cherokee Nation. And so crossing the chattahoochee river and getting rid of these folks became an absolute economic imperative in the minds of many nonnative georgians. So, what happens . This guy, george troup, i credit with being the mastermind of the strategy that would ultimately be employed successfully to engineer cherokee removal. Interesting guy. Actually had creek relations, became governor of georgia, was eager to acquire the lands of the Cherokee Nation and set about to find a legal way that he could do so. And he found it, thanks to John Marshall and the Supreme Court. And an 1823 decision, second Marshall Court decision dealing with native land rights. The first deal, and civilly with native land rights. The case rose from a late colonial era land speculation. That was, frankly illegal under british law. But involved the acquisition of millions of acres of land in but would become indiana and illinois. And the land speculators would push for recognition of title for 50 years. The purchases were in 1773 and 1775. And eventually they would 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 didnt own their own land. And this was the point at which, in 1823, the federal government does adopt a rule about indian occupancy rights being the limit of tribal land rights. And its a construct of this case. And what the court finds is, that when europeans discovered the new world, they found it in the possession of native peoples. And the question arose, who owns the discovered lands . The europeans says John Marshall for the court, determined that the way it should work is as follows. Upon discovery, the underlying title to all discovered lands becomes the property of the discovering european sovereign. Thats the king of england. Fine. If its the king of france, fine. The tribes retain an occupancy right, which more or less meant a right to occupy. In that formulation. And so they could stay there. And they could sell the occupancy right if they wanted to, or the legal term is alienate. But only to the same discovering sovereign. We call that a preemptive right. A right of first purchase. So only the sovereign can buy it. That portion of the discovery doctrine is still the law. And its enshrined in the trade in the trade and intercourse act that kevin discussed, which says that only the United States, now a successor to the british crown, can buy indian lands. Thats still the law today. The only way you could buy cherokee land is through an act of congress, congress authorizing or validating the sale. Thats the doctrine. Its that first part, though, that the underlying title to all discovered lands vested upon discovery in the discovering sovereign, that troup gets excited about. Mcintosh came down in 1823. And by the way, my belief is that John Marshall essentially adopted this rule in order to solve a completely unrelated problem having to do with the rights of virginian and revolutionary war vets. To lands in southwestern kentucky. But again, by accident, had been given to virginias soldiers while they were in full possession and ownership of the chickasaw nation. So he had to come up with a theory so he had the line right like fletcher part two, and he adopts this more thoroughly. I think to solve that problem without thinking through potential consequences. So, here come the consequences. Somebody ok. Georgia declared independence from england. And said, we won, right . When we won our independence, doesnt that mean that we acquired from them the ownership of the underlying title to the lands of the Cherokee Nation . Which are within our bounds . And they attain an occupancy right. But if we own the underlying title and they own an occupancy right, then doesnt that mean that we are their landlord . That is the one we are familiar with. The landlord owns the building, you have an occupancy right to live there. How do you get rid of tenants you dont like . You change the lease terms. Now it would be like, i love your dog. But a 20,000 pet deposit is not unreasonable. You are 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. I will miss you. Youve been great, right . [laughter] that is sort of what happens to the cherokee. What troup does is he marches into the legislature and says, look, we are their landlords. He uses that. Basically, they are our tenants and we can change the lease and you guys should do something to act on this. That is pretty much his contribution at this stage because he leads the governorship immediately afterwards and moves to washington to be georges new senator, where he is going to play a role in the adoption of the indian removal act. What does georgia do . This is 1827. Georgia issues these resolutions in december 1828. The next governor, john forsythe, pushes through the legislature a statute that acts on this idea that says, cherokees, you guys stay as long as you want, but from now on we are going to divide up your land and youre going to be parts of four georgia counties and you can keep your own laws until june of next year. You will be subject to the law of georgia and all of your laws will be null and void. But you are welcome to stay. Unsurprisingly, the Cherokee Nation says no. That is not how this is going to work. What made georgia confident he 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. And he was on record of being forcingve of the idea, indians out of the southeast and finding a new place for them. They thought, jackson will get sworn in and actually take some federal action to support us. Of course, it turned out that they were correct. March, 1829, jackson is sworn in. By the way, for this happens, alabama steps up and says, look what georgia is doing. They impose their laws over the creek nation. As we will see, within a year , mississippi is going to do the same thing. Imposing over the chickasaw and choctaw. This is more than just georgia by the time all of this becomes the subject of litigation. December 1829, jackson delivers what we would now call his first state of the union address. A lot of it is about indian removal. He says, look, georgia, alabama have passed these laws. Imposing their laws over the indian nations. They are perfectly right in doing so. The tribes are welcome to stay. But they will be subject to state law. What i would Like Congress to do is to pass legislation offering, if they want to, to trade with these tribes in the southeast their current lands for lands out in what was essentially the Louisiana Purchase territory. Way out in the Louisiana Purchase territory, as far as you could go before you were in mexico. Basically right at the Mexican Border and what eventually would be the texas border when texas is an independent state. That corner is where these tribes were going to be tucked. If jackson had his way. This message was delivered. In the audience, troup. ,nd former governor forsythe holding the other Georgia Senate seat. They were architects in georgia of the idea and they will be the backers of the indian removal act in congress when it comes up, and it comes up almost immediately, the removal act debate begins early in 1830. The debate lasts, eventually, about five months. There is support for the tribe position, from new england representatives and midatlantic representatives. Among the most vocal was a man from new jersey. He says, what are you doing . How can you possibly assert your laws over these people . The response that comes from forsythe and troup and supporters of indian removal is johnson versus mcintosh. John marshall told us we own the land and we can do this. We have the right to do it. We are the landlord. But surely that position will prevail. At the end of april, the Senate Approves the indian removal act and the house approved it one month later with slight modifications, which were accepted the following day. Andrew jackson signed them into law. Almost immediately, the Jackson Administration starts negotiating with southeastern tribes. Look, we have land for you now. The first tribe to say ok is the choctaw nation. They signed the treaty of dancing at rabbit creek in 1830 and includes two provisions. I will spotlight one because it helps explain what is going on and reinforces what we have said. A provision that says, when you move out to these lands, were going to swap you for what would become known as the indian territory, now oklahoma, no state shall ever be allowed to pass laws to govern the choctaw nation. This line becomes a standard feature of these removal treaties. No state shall ever be allowed to pass laws to govern the nation. The other provision in there is a provision saying, and you will own the title to those lands. That is important, because that had been the means by which georgia had claimed the power to impose those laws. That cant happen, because you guys will only title to your land. Today, that is still the rule. The five tribes from the southeast, almost uniquely, own as a matter of u. S. Law title to the land. We call it restricted fee lands. That is a consequence of these removal treaty negotiations. To avoid having to deal once again with the problem they faced in the 1830s. John marshall this is a 1830s portrait of John Marshall was appalled by all of this. Marshall wrote to dabney car, humanity must bewail the course just pursued. Elsewhere, if memory serves, he described the effort of these Southern States as Something Like the unholy combination of unrighteous power. I have to say, i think that part of the reason he was so upset must have been that he felt partly to blame for it. He is the one who had handed georgia the tool to independently start initiating the ouster of the Cherokee Nation by claiming rights as a landlord to impose the law and for the senate to impose the tribes to leave. Month the treaty at rabbit creek was signed with the chickasaw, the richmond inquirer published the full text of a georgia judicial opinion. The organizational georgia convention, which was the equivalent, acted as the georgia Supreme Court in those days. In the case of a man named george tassels, his english name, this was a cherokee who was accused of killing another cherokee. In Cherokee Nation. In northwest georgia. Because georgia had imposed its law, the georgians went in and grabbed this guy, prosecuted him in state court and sentenced him to death. Tassels tried to appeal through the Georgia Court system on successively unsuccessfully and pleaded for help. 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 talk about whether georgia had the authority to do any of this. The georgia governors response i will read to you. I am paraphrasing slightly. George gilmer, then the governor, when he received marshalls citation, called the legislature together and informed them that as far as he was concerned, orders received from the Supreme Court for the purpose of staying or interfering with the decisions of the courts of the state in the exercise of their constitutional jurisdiction would be disregarded. Any attempt to enforce such orders would be resisted with whatever force the laws had placed in his command. That is 1830. Marshall might have turned tassels into what would become the cherokee cases. But was denied the opportunity to, because they legislature upon hearing this and after denouncing marshalls order as a violation of georges rights told the governor, basically, kill him now. The governor agreed. Dispatched a writer midnight midnight23 rider december 23 and georgia hanged george tassels as scheduled on christmas eve. This is chilling. I think this mustve been upsetting to the chief justice. It may well have been at that point that he resolved he had to do something to fix this problem that he in large part had created. Helpfully, there was a case in the pipeline that might allow him to do so. Four days before george tassels was hanged, john ross had informed governor gilmore at the George Gilmore that the cherokee were going to file suit. This would be the case of Cherokee Nation versus georgia. The lawyer they had retained was william wort. He spent most of his professional life in richmond. He served as attorney general of the United States for more years than anyone. Two terms for james monroe and one term for john quincy adams. He ran for president in 1832. As the candidate for the shortlived antimasonic party. Partyere any antimasonic members here . I havent heard from you lately. [laughter] in any event, he failed. And died almost immediately after. Wirt is also famous for having written two mediocre works. According to critics, i have read them and i thought they were ok. One was a book called the letters of the british spy, and include sketches of famous richmonders. Including John Marshall and a lot of anecdotal information we have about marshall comes from him. The other book that he wrote was a biography of patrick henry. It enjoyed some celebrity. It appears that it was wirt who had henry say, this is where it appears first, give me liberty or give me death. A lot of people think that was a quote that wirt made up. That is the first appearance of that quote for patrick henry. In any event this is another trivial piece. Kind of interesting. The story that i had always heard as an indian lawyer was that wirt represented the Cherokee Nation for free. A principal thing. Ple thing. I mentioned that to one of chief hopkins predecessors and he said, we have got his bill. [laughter] that story may not be true either. History. Ok. Wirt teamed up with the guy named john sergeant. He was a frequent here before the Supreme Court and filed the before thequent peer Supreme Court and filed the case. This is where the case will be argued. Georgia doesnt show. His theory was that the federal courts had jurisdiction and had original jurisdiction, which meant he did not need to go through the lower courts before he went to the Supreme Court. He could go straight there. Because the constitution gives the Supreme Court original jurisdiction in cases where state is a party. Andy georgia was a party. Was a party. A the federal judicial power extends to suits between states and foreign states. Georgia is a state and the Cherokee Nation as a foreign state. It is a foreign state because state just means a political entity. It is clearly a political entity. It has a constitution and stuff. It is foreign, because none of its citizens are u. S. Citizens. So it has to be foreign. It cannot be anything else. This is the argument he made. This is the argument on which jurisdiction rested. If the court doesnt find that to be true, then they cant consider the case on the merits and that ended up being the big stumbling block. Here is the court at the time. Justice devol did not participate. The six guys did and they split three ways. Cherokee nation versus georgia over the jurisdictional question. The two guys on the right let me back up. The two guys on the left, smith saidson and joseph story, wirt is right. They are a foreign state and we can go ahead and hear this case. The two guys on the right, Henry Baldwin and william johnson, said no, it is neither foreign nor a state. Johnson said if we admit these guys to be a foreign state, and then every tribe has a foreign state and we are going to become an indian law court. Because every tribe everywhere is going to sue for something or another. It may have been not concerned with caseload that motivated him. Baldwin was a jackson appointee. We will learn more about baldwin momentarily. He did not believe in any of this. He did not think much of tribes. Marshall and john mclean came up with a third path. Marshall ends up writing an opinion which he calls the opinion of the court. Although it is really only joined by himself and one other guy. John mclean, another jackson appointee. What marshall says is, the Cherokee Nation are a state, but they are not a foreign state. They are something different. They are a domestic dependent nation. What does that mean . He said they are not entirely freestanding. Their relationship to the United States resembles that of a ward to his guardian. This will be the source of what we will later come to be the guardianward relationship. A doctrine between the federal government and the tribes. What does that mean . We dont know, says marshall, but we know what it doesnt mean. It does not mean that we have jurisdiction. It means we do not have jurisdiction. So we are going to have to kick this case back. Georgia celebrates great victory, but marshall at the end of the opinion that in a proper case with proper parties, we would be happy to entertain the merits of the claim the Cherokee Nation is making. That is an invitation to Cherokee Nation to try again. And they will. The very next term, they will try again after the arrest of this guy. Samuel wister, a young new england missionary. He was also a pastor. Butler, a new arrestedissionary are by georgia for failing to have a Georgia State license as nonnatives to be in Cherokee Nation territory. They are sentenced 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 this becomes the case where we finally get a resolution of georges claim to extraterritorial legislative jurisdiction. How does it work out . This is a fascinating opinion. The part that is probably best remembered is the part in which marshall says, the u. S. Has a treaty with the Cherokee Nation in which they contemplated that they are a separate state capable of entering into treaty relations with the u. S. Given that, georgia cant assert it has legislative authority over them. We have a conflict between what the federal government thinks in a treaty and what the State Government wants to do. Under the supremacy clause of the u. S. Constitution, the federal government wins. That might have decided that, marshall had one more thing to do, and that was to fix the problem he had created. In johnson versus mcintosh. The bulk of the worcester decision is devoted to a rewrite, without ever mentioning the name of the johnson and mcintosh discovery rule. Johnson and mcintosh, as i mentioned earlier, the court said that on discovery, but the discovering sovereign acquired was ownership of the underlying title and an exclusive right to purchase. What the court says in worcester is upon discovery, what the europeans acquired was an exclusive right to purchase. Period. There is no vesting of fee title in the discovering title. Discovering sovereign. In his version of the rule. He really goes out of his way to say it. It is a fascinating insight into the way that marshall drafted. He doesnt want to say we are overruling the case. He never overruled the case that he had decided. That would have undermined the authority of the court. Instead, he says, here is what the europeans got, thats all they got. They did not get anything else. There is nothing more here, folks. Nothing but preemption. That is all there is. Nobody has ever understood otherwise. Then he moves on. It is that long. The section. It is three or four sentences of him making sure we get the point that there is nothing more without ever mentioning what the something more might be. The purpose is to avoid this situation recurring. So that we will not have other doing this based on ownership of the soil. How does this play with the other justices . Everybody joins him with two exceptions. John mclean writes an opinion i find reprehensible. He says it is right, but if a tribe were so degraded that it could not really function, then it would be ok for a state to exercise legislative authority. The question of whether that was proper probably not be a justiceable question. A question for the court to consider. Which is essentially, an invitation to georgia to go around killing people. Eventually they will be degraded and you can take over and we will not stop you. He has an opinion of one. Mclean was a perennial president ial candidate and i suspect he was campaigning for southern votes. Thinking he would not risk losing new england because he agreed with the majority. The last opinion is by Henry Baldwin. I will Say Something briefly about him. Baldwin was a nut, apparently. [laughter] he was a jackson appointee. He was from pennsylvania. He wanted to be secretary of the treasury. Jacksons Vice President had already given that job to a South Carolina friend of his. They put baldwin on the court to give him something to do. He cracked. Somehow. There were stories. He had a running fight with the court reporter, henry wheaton. Wheaton would write letters of at thent saying i was Court Last Night and baldwin was sitting in the room wearing nothing but his socks. Weird stuff like that. Baldwin, the reporter is the one who handled publication of opinions. Baldwin refused to give stuff to wheaton. Because he cannot stand him for some reason so if you read through the court reports, they always conclude with Justice Baldwin declined to give his opinion to the reporter. He dissented. He almost always dissented, for some reason or another. What happened in worcester versus georgia, he declined to give his opinion to the reporter. But doesnt mean it never showed up. I discovered this by accident when i was researching this book. On these cases. I can tell you, it basically had to do with my being really tired and pushing a button on and microphone reader for too long. This page shot forward and i was looking at it. I think it was the washington globe from the week or so after the opinion came out and i shot ahead. I do not even remember how long. The screen froze and i jumped back in shock at the noise. There it said, the opinion of mr. Justice baldwin. I started reading it, and it was nuts, and it was long. Something like 50 or 60 pages long. I ran home because, i didnt know this thing existed. I did a lot of investigation and i called the Supreme Court and stuff and it turns out, i am probably the first human ever to have read the entirety of mr. Baldwins dissenting opinion. If you are interested in it, and i do not recommend this [laughter] but if you are interested, the Historical Society published it. They were excited. It was an unpublished, unknown Supreme Court opinion from a landmark case. It is basically, what baldwins position was, if memory serves was, that the writ of error process, which is the process by which you take appeals from lower court, required that files be sent by the clerk of court of the lower court. This file had been sent by the chief judge of the lower court. What should happen is that should be sent back and the clerk of courts should get it and send it up again and then we could decide it. He took 55 pages to say that. It is this long history of the writ of error process. If anybody is interested. Line where he says Something Like, though some may think me mad with the flights of fancy of spring, youre thinking, yeah. Kind of. [laughter] what makes baldwin a hero in my judgment after all of this is, when i discovered the newspaper was publishing it they told us why it was so late they said Justice Baldwin declined to give his opinion to the newspaper for publication until some period had passed because he did not want the georgians to have any grounds for refusing to obey the expected Supreme Court mandate. To let the two guys out of jail. And that is heroic, i think. Even though he disagreed, he did not 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 appointee, which makes him a bit of a hero of mine. I do not think people know enough about him. What did jackson say . Famously, this is the point at which history records jackson says, John Marshall has made his decision, now let him enforce it. In truth, he did not say that. That is a quote from horace greeley. But he may have thought it. And certainly he did nothing to help out in the early days. With the anticipated mandate. And mandate would have been in order for the Supreme Court to the Georgia Courts to order the jailer to let these guys out of jail. Before that was issued, the Supreme Court broke up. It was going to be the end of the summer before a mandate was issued which gave georgia time , to decide what it wanted to do. It should not surprise you in the least that initially, georgia said, hell no. Were not going to let these guys out of jail. We are going to keep them there. There is some indication that the Jackson Administration would not have done anything to force them to do otherwise, at least initially. The problem is that South Carolina was watching this whole thing develop and South Carolina decided, it is time to act. Against the federal terrace tariff. That summer they cooked up the nullification ordinance, which some of you may remember. South carolina believed that the federal government did not have the power to pass a protective tariff, which was hurting imports coming into South Carolina. Which produced nothing but indigo and rice. You can only get so far in life with indigo and rice. They needed stuff like clothing. They were opposed to a high protective tariff. Nullification ordinance said, lets adopt this view the constitution is a compact among the states. We are a state and a party and we get to interpret it as anybody else does. So, we dont want to impose our interpretation on anybody else. We are kindly folk. If we believe your federal interpretation is wrong, then we have the right as a party to the deal to nullify the impact of a federal statute. Passed pursuant to your understanding. Which means you can collect the tariff anywhere you want, except South Carolina. And they go even farther. And if you try to, we will send you to jail. They made it a state crime for federal tax collectors to collect tariffs. They made it a crime for judges to try to enforce tariff collection. They put you in jail. They thought they could do this that summer because Andrew Jackson was leading georgia wasa standup to the Supreme Court. Action, i think pushed this into a whole new , playing field. Andrew jackson, who i think probably would not have cared if the missionaries died in prison, was not about to preside over the dissolution of the union, which is about the nullification doctrine pushed through the force act which basically , allowed him to send the army down to hang everybody. This being jackson that was a , threat that was taken seriously, and georgia revealed a notification ordinance, which jackson got on the 1832 equivalent of the phone, and said, you let those missionaries out of jail. They hemmed and hauled. At the last possible moment, the day we would have had a constitutional crisis, the governor of georgia let the two missionaries out of jail. So that sort of ended, at least, the story of worcester vs. Georgia with a victory for the tribe it appears. But unfortunately, history had one more wrinkle in store and that is that jackson decided there is no way i am going to cherokees stay now. So he started a campaign, political and press campaign, to get rid of them. Lewis cass, the secretary of war, who had already been tasked with negotiating removal treaties. 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, convinced them that the worcester decision was not going to stand. Theres no way this could be the law. Johnson v. Mintosh was the law. The state acted properly, and you guys better get out and take the same deal that the choctaws did, and the creeks agreed. The majority did. All of these tribes left remnants behind. The florida seminoles were subject to this, the mississippi eastern turkey and of the mississippi choctaws, the roots of the tribe that is not leave. That did not leave. Cass wrote a piece for called, examination of the cherokee question which , was published in publications all of the country, which was that worcester was wrongly decided, and so things started to appear to be turning at least with the tribes that were not the cherokees. The cherokees had a court victory. They did not have to go anywhere. This map shows you can see the chickasaws. Choctaws, 1830. Seminoles 1832 and 1833, but the cherokees, no, they are still there. That is a later date up there. So why did the cherokees go . I will tell you what i think. What finally drove the cherokees to depart. Georgia is, or rather the Supreme Court justices are getting old by this time. Marshalls last term is the 1835 term. The cherokees will hold out that long but it is not marshalls , death i think that triggers this. It is william johnson. William johnson dies in 1834. That leaves a seat. Guy,on fills it with this james wayne, who had been a georgia jurist and a vigorous proponent of indian removal. Then the same day that wayne is sworn in, Justice Gabriel duvall resigns, which opens another seat for a jackson appointment. Has already got 1, 2, 3, this will be four justices. Duvalls resignation makes clear this will be jackson appointees, proremoval. We know about the politics of Supreme Court appointments. Twocherokees sent delegations to washington in after wayne is sworn in and 1835 after duvall is resigned. The open sea is in the process of being filled with other jackson appointee. One group is john ross and the National Party who were the elected government. They show up to say, we are staying, right . But there is a second group headed by chief john rich, who i think, reading the writing on the wall, makes the call, lets get the best deal we can. So the ridge faction, which is known in cherokee history as the treaty party or 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 in december, 1835, and it is that treaty in which the Cherokee Nation, again, illegally executed under cherokee law, will agree to remove and move west. This is the beginning then of this complicated story of the trail of tears, the migration for the cherokees, and the trail of tears migration for the other tribes. Thank you. [applause] do we want to do a minute of q a . Kevin and i are going to tagteam q a for just a few minutes since i went a little longer than expected. There is so much to cover. 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. [laughter] in the early 1800s, land anywhere, presumably, was fairly cheap. Was there any possibility that money could have been gotten together and buy land for cherokees and other Indian Tribes and give them title to the land they bought and avoid the problem . Prof. Robertson well, that is kind of what happened with removal, right . The land was purchased from tribes indigenous to what would be the indian territory by the United States and then given to the cherokees. It is a bit of what happened i think is what you are saying. Yeah. I just wanted to say my second great grandfather and his brother were also jailed with worcester. Prof. Robertson oh, i want to talk with you later. I wondered if you knew anything about that. Prof. Robertson i dont, and these are stories that are not widely known, so one of my missions in life is to get more publicity for the other folks. When they filed a claim in 1842, worcester wrote letters, describing exactly what happened in prison and how they were treated. Prof. Robertson i would love that. Thank you. Thank you. 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. And the question is were the indians so hated and despised that we, as a nation, could not consider offering them citizenship and giving them an option of being a citizen of georgia or North Carolina, instead of moving away to another property that the country owned . The question is how did they communicate, or where the indians actually taken advantage of . [laughter] prof. Robertson yes. And the early part of your question, citizenship will become a deal and some of the removal treaties. You give us your land and it was not state citizenship, it was United States citizenship. There was a group just east of where i am in central oklahoma, the citizen pottawatomie nation, and the citizenship was part of the removal deal, they were granted u. S. Citizenship. I do not think it is so much there are two parties we are talking about here, so i cannot really speak to any sort of collective congressional animus toward native people. I can tell you there were a lot of native peoples were not particularly interested in United States citizenship. It is not exactly a blessing, right . They were citizens of their own nation and happy to live as citizens of Cherokee Nation or chickasaw nation or whatever. There are individual cases of sort of tribal citizens, exactly as you say, sort of becoming acculturated through commercial relations or through mortgage or through marriage and become citizens of states and leave their tribal communities, but, i think, especially in the early days, there was not an appetite for that and the tribes themselves, and there was probably a fair amount of, you maybe, probably in a lot of instance is dead on, but also jealousy, desire for property, and a real desire to just move people out. It is a very complicated story, but you raise a really interesting story. Some of you may not know when tribal citizens got United States citizenship universally, by an act of congress. It may surprise you. 1924. 1924. And there were some states that did not great state citizenship to tribal citizens until the 1960s. Dr. Butterfield i would just add on the nonlegal side of citizenship, the 1780s, 1790s, the image you saw in the washington peace medal, essentially native americans adopting all the practices, everything but the legal citizenship, adopting agriculture, western agriculture, that was all over the place. People had the sense that that would happen, and they would, essentially, acclimate and become transformed in that way, years,o, it was in 50 there will not be all that many left anyway. So it was a real sense of will native americans acclimate . Term civilization all the time. Have a sense that all those things are simultaneously possible while none of them could happen simultaneously. It is interesting world 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 georgias position against the federal government, was that sort of the beginning of a states rights kind of idea, do you think . Dr. Butterfield yes. Do you want to talk about that . Prof. Robertson yes. Georgias it was not the first. Going back into the 1820s, virginia made noises. To jefferson and sedition act protest and stuff, so there is a long southern tradition with this, but the georgia position did provoke a major constitutional crisis. Mineral rights is a great question. I think there was not a legal resolution to that question. Nobody raised it. I think everybody assumed it should assumed it. It is in the mid20th century the Supreme Court, they will say the tribes do owned of resources, natural resources, but i think, if pressed, most folks would have assumed that back in the early 19th century. Dr. Butterfield all right, thank you all very much. [applause] [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] youre watching American History tv covering history cspan style with event coverage, eyewitness account, archival films, lectures in College Classrooms and visits to museums and historic places. All weekend and every weekend on cspan3. This year, cspan is touring cities across the country exploring American History. Visit toook at recent san antonio, texas. Youre watching American History tv all weekend and every weekend on cspan3. s name was william c velasquez, but everyone knew him as willie. Willie was and is a name synonymous with democracy in america. Through the organization he founded, the southwest Voter Registration education project, he nearly doubled hispanic Voter Registration and dramatically increased the number of latino elected officials in this nation. His appeal to the Hispanic Community was simple passionate, and direct. Your vote is your voice