Transcripts For CSPAN3 Chief Justice John Marshall The Cher

CSPAN3 Chief Justice John Marshall The Cherokee Cases July 11, 2024

But if we own the underlying title and they own an occupancy right, then doesnt that mean that were sort of like their landlord, right . Because thats the one that were familiar with. So, the landlord owns the building. You have an occupancy right to live there. And how do you get rid of tenants you dont like . Well, you change the lease terms. So, now it would be, you know, i love your dog. Hes a great dog, but you know, a 20,000 pet deposit, its not unreasonable. So, youre 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. Youre like, oh, this is terrible, im moving. You say, oh, ill miss you. Youve been great, right . And thats sort of what happens to the cherokees. What troup does is he marches into the legislature of georgia and says, look, were their landlords, and he uses that. And so, we can theyre our tenants. We can change the lease terms and you guys should do something to act on this. And thats pretty much troups contribution at this stage, because he leaves the governorship immediately afterwards and moves to washington to be georgias new senator, where hes going to play a major role in the adoption of the indian removal act presently. So, all right, what does georgia do . This is 1827. Georgia issues these resolutions. In december 1828, the next governor, john forsythe, persuades or pushes through the legislature a statute that acts on this idea from troup that says, okay, cherokees, you guys stay as long as you want, but from now on, were going to divide your lands up and youre going to be parts of four georgia counties, and you can keep your own laws until june of next year or june of 1830 at which point you will all be subject to the laws of georgia, and all of your laws will be null and void. So, but youre welcome to stay. And unsurprisingly, the Cherokee Nation says, no, thats not how this is going to work. Now, what made georgia confident that 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 jackson was on record as being supportive of the idea of forcing indians out of the southeast and finding some other place for them. They thought jackson will get sworn in and hell actually take some federal action to support us in this effort, and of course, it turned out that they were exactly correct. March 1829, jackson is sworn in. By the way, before this happens, alabama steps up and says, look what georgias doing, and they pass a law imposing their laws over the creek nation. And as well see, within a year, mississippi is going to do the same thing, imposing its laws over the chickasaws and the choctaws. So, this is more than just georgia by the time all of this becomes the subject of litigation. December 1829, jackson delivers his first, what we would now call state of the union address, his first annual address as he called it, and a lot of it is about indian removal. He says, look, georgia, alabama had passed these laws imposing their laws over the indian nations. Theyre perfectly right in doing so, and the tribes are welcome to stay, but they will be subject to state law. What id like you, 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. And way out in the Louisiana Purchase territory, it was as far as you could go before you were in mexico. It was right at the, basically the mexico border in what would eventually be the texas border when texas is an independent state. And that Little Corner is where these tribes were going to be tucked, if jackson had his way. This message was delivered. In the audience, by the way, troup and former governor forsythe, whos holding the other Georgia Senate seat, and theyre going to become, as they were architects in georgia of the idea of ousting the cherokees, theyre going to become major 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 tribes position, mostly from new england representatives and midatlantic representatives. Among the most vocal was Theodore Frelinghuysen from new jersey, who takes the floor on multiple occasions to say, you know, what are you doing . How can you possibly assert your laws over these people . And the response that comes from troup and forsythe and other supporters of indian removal is, johnson versus mcintosh. We own the land. John marshall told us we own the land, and so, we can do this. We have the right to do this. Were the landlord. Eventually, that position will prevail. And in april, end of april, the Senate Approves the indian removal act. The house approves it a month later, may 26th, with slight modifications. The senate accepts those the following day, and on may 28th, Andrew Jackson signs it into law. Almost immediately, the Jackson Administration starts negotiating with southeastern tribes to get them to remove. Because look, weve got land for you now. The first tribe to say, okay, is the choctaw nation, which signs the treaty of Dancing Rabbit Creek in september 1830. And it includes two provisions that i want to spotlight for you because they sort of help explain exactly whats going on here, and it reinforces what weve just said. The first is a provision that says that when you move out to these lands were going to swap you for in what would become known informally as the indian territory, now oklahoma, no state shall ever be allowed to pass laws to govern the choctaw nation. And this line becomes a standard feature of these, what we call removal treaties no state shall ever be allowed to pass laws to govern your nation. The other provision thats in there is a provision saying, and you will own the title to those lands. And thats important because that had been the means by which georgia had claimed the power to impose its laws. That cant happen because you guys will own the title to your lands. And ill mention that today thats still the rule. The five tribes from the southeast almost uniquely not entirely but almost uniquely own as a matter of u. S. Law the title to their land. We call it restricted fee lands, and thats as a consequence of these removal treaty negotiations, to avoid having again to deal with the problem that they had to face in the 1830s. Now, John Marshall and this is an early 1830s portrait of John Marshall, so hes older than you may be used to seeing him was appalled by all of this. Marshall wrote to dabney carr, humanity must bewail the course which is pursued. Elsewhere in a letter, if memory serves to frelinghuysen, with whom he was in contact with during the removal debates, he described the effort of the Southern States as Something Like the unholy combination of unrighteous power. And 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, because hes 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 its laws, and that provided incentive for the tribes to leave, et cetera. I think that got thrown in his face very soon after all of this started. In fact, the same month that the treaty of Dancing Rabbit Creek was signed with the chickasaws, the richmond inquirer published the full text of a georgia judicial opinion, the Organization Called the georgia judicial 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 with a cherokee who was accused of killing another cherokee in Cherokee Nation, in northwest georgia. And because georgia had imposed its criminal law, the georgians went in and grabbed this guy, prosecuted him in state court and sentenced him to death. And tassels tried to appeal through the Georgia Court system unsuccessfully and then pleaded with the Supreme Court of the United States to help him. 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 ill read to you, and im paraphrasing sightly. When George Gilmer, who was then the governor, received marshalls citation ordering them to appear, et cetera, 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, and any attempt to enforce such orders would be resistant with whatever force the laws had placed at his command. Thats 1830. Now, marshall might have turned tassels into what would become the cherokee cases but was denied the opportunity to because the legislature on hearing this, by after denouncing marshalls order as im quoting again a flagrant violation of georgias rights, told the governor, basically, kill him now. And the governor agreed, dispatched a rider at midnight on december 23rd, and georgia hanged george tassels, as scheduled, on christmas eve. Now, this is chilling, and i think this must have been upsetting to the chief justice, and it may well have been at that point that he resolved he had to do something to fix this problem that he had in large part created. Helpfully, there was a case in the pipeline that might allow him to do so. Four days before tassels, george tassels was hanged, john ross had informed governor George Gilmer that the cherokee were going to file suit to stop georgias imposition of its laws, and this would be the case of Cherokee Nation versus georgia. The lawyer that they had retained and this is the first of the great cherokee cases was william wirt. Some of you may know him. He spent most of his adult professional life in richmond. He served as attorney general of the United States for more years than anyone. He was two terms for james monroe and one term for john quincy adams, and then he ran for president in 1832 as the candidate of the shortlived Antimasonic Party. I dont know if there are any Antimasonic Party members here. Maybe its still around. We havent heard from them lately, i guess. But in any event, he failed in his we dont have a president wirt and died almost immediately after, so there you go. Wirt also, by the way, is famous for having written two mediocre works, according to critics. I have read both of them and i thought they were okay. One was a book called the letters of the british spy, which were serialized in one of the richmond papers, and include sort of portraits, sketches of famous richmonders and other political figures, including John Marshall. And a lot of the anecdotal information we have about marshalls character and stuff comes from wirt. The other book that he wrote that enjoyed some celebrity was a biography of Patrick Henry. And it appears that it was wirt who had henry say this is the first time this appears anywhere give me liberty or give me death at st. Johns church. And a lot of people think that was a quote wirt made up because it sounded like something henry might have said, if he had thought to. But thats the first appearance of that quote for Patrick Henry. In any event and heres another this is another sort of trivial piece on wirt, but may be sort of interesting. The story that i had always heard as an indian lawyer and law prop was that wirt represented the Cherokee Nation for free, right . This was a principle thing. I mentioned that to one of chief hoskins predecessors, smith one time, and he said, actually, weve got his bill. So, that story may anyway, well see. But, so, that may not be true, either. History. Okay. So, wirt teamed up with a guy named john sergeant, who was a frequent appearer before the Supreme Court, and filed this case in the Supreme Court, and his theory was and 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 didnt need to go up through the lower federal courts before he went to the Supreme Court. He could go straight there because the constitution gives the court, the Supreme Court, original jurisdiction in cases where a state is a party and georgia was a party and it also, the federal judicial power extends to suits between a state and foreign states or foreign nations. And georgias a state and the Cherokee Nation is a foreign state. Its a foreign state because state just means a political entity, and its clearly a political entity. Its got a constitution and stuff. And its foreign because none of its citizens are u. S. Citizens. So, it has to be foreign. It cant be anything else. And this is the argument that he made. And this is so, this is the argument on which jurisdiction rested. So, 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. Heres the court at the time. One justice, justice duvall, was absent and didnt participate, but these six guys did, and they split three ways in Cherokee Nation versus georgia, over this jurisdictional question. The two guys on the right let me back up. The two guys on the left, smith thomas, and in the upper lefthand corner, joseph story, said wirts right, theyre a state, theyre foreign, theyre a foreign state, and so, we can go ahead and hear this case. The two guys on the right, Henry Baldwin and william johnson, said, no, its neither foreign nor a state. And johnson in particular said, if we, you know, if we admit these guys to be a foreign state, then every tribe is a foreign state and were just going to become an indian law court because every tribe everywhere is going to sue for something or other and were going to have to act as a tribal court and it may have been the concern of caseload that involved him. Baldwin was a jackson appointee, and were going to learn more about baldwin momentarily, but he just didnt believe in any of this. He didnt think much of tribes. Marshall and john mclean came up with a third path here. And marshall ends up writing an opinion which he calls the opinion of the court, although its really only joined by himself and one other guy, john mclean, whos another jackson appointee. And what marshall says is the Cherokee Nation are a state, but theyre not a foreign state. Theyre something different. They are and this is his phrase a domesticdependent state, or he used the phrase domesticdependent nation. What does that mean . He says, well, its like this theyre not entirely freestanding. Their relationship and im quoting now to the United States resembles that of a ward to his guardian. And this will be the source of what will later come to call the guardianward relationship doctrine between the federal government and the tribes. So, okay, well, what does that mean . Well, we dont really know, says marshall, but we know what it doesnt mean. It doesnt mean that we have jurisdiction. It means we dont have jurisdiction. And so, were going to have to kick this case back. Now, georgia celebrates, great victory, but marshall at the end of the opinion writes that in a proper case with proper parties, wed be happy to entertain the merits of the claim that the Cherokee Nation is making, and thats an invitation to Cherokee Nation to try again. And they will. The very next term, theyll try again, after the arrest of this guy, samuel worcester, who is a young new england missionary. Hes also the postmaster, federal postmaster in Cherokee Nation, which might have bought him exemption from georgia law, but he didnt make that argument. Samuel worcester and eelijah butler, who is another new england missionary, are arrested for failing to have a Georgia State license as nonnatives to be in Cherokee Nation territory. Theyre 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, worcester versus georgia decided in the 1832 term, becomes the case where we finally get a resolution of georgias claim to extraterritorial legislative jurisdiction. How does it work out . Well, this is a fascinating opinion. Part of it, the part thats probably best remembered, is the part in which marshall says, the u. S. Has a treaty with the Cherokee Nation in which its 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

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