“Let Them Enforce It”: The Supreme Court and the Cherokee Cases
Kristopher Maulden, a Junior history major at Eastern Illinois University, was recently inducted into the Epsilon Mu Chapter of Phi Alpha Theta. This paper was written for
“Let Them Enforce It”: The Supreme Court and the Cherokee Cases
Kristopher Maulden, a Junior history major at Eastern Illinois University, was recently inducted into the Epsilon Mu Chapter of Phi Alpha Theta. This paper was written for Dr. Lynne Curry’s US Constitution and Nation course in Spring 2001.
Historians often relegate the Cherokee cases to a secondary role in American history for a number of reasons but mainly because the cases never truly figured largely in the controversies that created them. Worcester v. Georgia should have aggravated the states' rights debates of the 1830s and it should have settled the official stance the United States took in protecting Indian nations from individual state interests, but it did neither. History seems to have decided that the Cherokee cases failed to affect American policy and political practice because of the cases’ irrelevance at the time they were heard. However, the Cherokee cases did not fail merely because they were inconsequential. Instead, they failed because the events surrounding them made the cases inconsequential. Many problems within the United States government led to the Cherokee cases' failures. Among them are the U.S. Supreme Court's lack of real power and President Andrew Jackson's refusal to enforce even the simplest of laws--or in this case decisions--when they interfered with his interests. Although the decisions were at times sweeping but always extremely well-crafted, Jackson's abuse of the presidency led to the consequences described above and, ultimately, the forced removal of the Cherokee and many other Indian nations.
Before comparing the Cherokee cases with other events of the Jackson administration, the history of the cases must be considered and understood. Georgia had wanted the lands of the Cherokee and the neighboring Creek nations since the end of the American Revolution, if not earlier. After the Revolution, the state claimed one hundred million acres of land, which included Cherokee and Creek lands and encompassed all of present-day Alabama and Mississippi. Georgia even claimed land that belonged neither to Great Britain before the Treaty of Paris nor to the United States afterward but instead belonged to Spain. The federal government did not respect Georgia’s claims, however, and moved to protect the Indians from Georgia's encroachments. The federal government and the Cherokee signed the Treaty of Hopewell on November 28, 1785, which guaranteed the Cherokee the protection of the United States. The Creek nation also made a treaty with the United States, the Treaty of New York, in 1790 to protect them from Georgia's aggression. The United States went so far as to guarantee the Creeks any contested lands between the Indian nation and Georgia and even returned some lands that Georgia had claimed for itself. This in effect allowed the federal government to limit Georgia's size by guaranteeing land to the Creeks that the state wanted. Georgia continued to claim the lands, though, and the federal government had to agree to remove the Indians at some point in the future in order to end the conflict. This agreement, known as the Compact of 1802, also stipulated that Georgia would no longer claim lands to the west that the government had set aside as Indian lands.
Still, removal was not a viable option in 1802, quite simply because the federal government had nowhere to send the Indians. Only after the Louisiana Purchase did the United States gain a vast tract of land to the west, which in turn made removal seem possible. After all, many Americans thought the massive land purchase could easily support the Indians east of the Mississippi as well as those already in the Louisiana Purchase. Thus, public and legislative support for removal grew throughout the United States. Immigrants and older Americans saw Indian lands as somewhere they or their children could settle and make a living. Others saw Indian removal as part of national expansion, which also included the expulsion of the Spanish from Florida and the West. Still others saw removal as part of America's mission to bring Western civilization to all of North America. Public policy followed public feeling, as it usually does over time, and in December of 1829 Andrew Jackson presented the Indian Removal Bill to Congress, which would increase federal efforts to move the Cherokee and other tribes across the Mississippi River. The Congressional members of the embryonic Whig party strongly opposed the Bill, and in a vote along party lines in the Senate, Jackson and his Democrats won by a twenty-eight to nineteen tally. However, the Whigs ground the Bill to a halt in the House, forcing a tie vote. In response, Jackson told the Democrats he was hinging his administration's success on the Indian Removal Bill, and "he pressured and bullied, and the original legislation passes in the House by a vote of 102-97.” Jackson then promptly signed it into law in late May 1830.
At the same time, Georgia had made a series of laws encroaching on Cherokee rights. In retaliation, Cherokee chief John Ross decided that the Cherokee had little choice but to sue in federal court to stop the state from enacting its laws. The Cherokee seemingly had the law on their side; Article IX of the Articles of Confederation as well as numerous acts of the Continental Congress set out to give the United States sole power over Indian affairs by stipulating that treaties could only be made by federal diplomats. Additionally, Article I, Section 10 of the Constitution barred states from entering into treaties and Article I, Section 8 gave the federal government the sole power to negotiate with Indian