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Of conquest by law. That explores the subject brings us here today. As we conceptualized this symposium, lindsay has been a valuable in determining the format, in our speakers, and in our goals. We are excited to finally meet in person. As jenny mentioned, it has been 18 months of fun 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 boren award i should say he was the first recipient of the david corn 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] ms. Robertson it is an absolute delight to be here. But did not get mentioned this might that my dads family is from charlottesville. I went to law school and did my history doctorate at the diversity of genera university of virginia. I am back home, in a sense. I have been a proud oklahoman for 22 years. My kids identify as oklahomans. They dont remember that they lived in virginia. My oldest child is a law student at uva. She is connecting with her roots and we will see what happens. I think she feels like she is back home too. I am truly honored to be here. I 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. Also to the museum, which i think i last visited in the 1960s. It has changed. Changed in a lot of ways. I am excited to have a chance to look around a little bit later. To follow up on what kevin said, i will pick the story up in the first decade of the 19th century. I have some slides, if i can get into them. What i want to do is start with the big troublemaker in all of this. Im going to focus on John Marshall and the cherokee cases. The culprit in all of this is georgia. Im going to start with georgia in 1802. Im going to move a bit around in time and revisit some of the themes that kevin touched on. Dealing with legal rights of indigenous people. This is a mass map of georgia and 1802. Many of you remember that in the Confederation Congress we mentioned virginia ceeded its colonial charters to the new states. Those will become iowa and michigan and indiana. Georgia had lands that they held onto, as long as they could. This is 1802, the last year of greater georgia. Georgias 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 decade, as close to 1802 as they could pull off. A successive series of georgia legislators attempted to sell as much of this land as they could. Mostly to new england speculators. Some of you will member the famous yazoo controversy. I will say a word about that now and help set the stage. There is a legal rule that comes out of that it is going to be relevant. Yazoo lands were out in mississippi. In massive quantities sold by the Georgia Legislature to new englanders. They were all scoundrels, but well respected scoundrels. The Georgia Legislature was almost to a man, ride by these guys to agree to the terms of sale. The only legislature who wasnt bribed was absent. He was homesick. Charles hudson has another wonderful book about the yazoo claims and the decision that came out of them. This legislature, having sold off much of georgias patrimony, was ousted by the voters of georgia in the succeeding election. A new grand canyon. New gang came in. Its first action was to authorize the sale of much of georges western domain. The capital was milledgeville at the time. They took the 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. The old guy hobbled down to the square and they handed him a magnifying glass. Any of you, many of you tortured and split magnifying glasses. What they had this guy do as they publicly repudiated the sale. They had a guy pulled up a magnifying glass and friday document. Fry the document. This was the revolutionary spirit. Do this sometime if you have something to protest. I liked it as a picture. In any event, unsurprisingly, the new legislature get sued the new england land company. You cant repudiate the sale, it is too late. This claim will make its way to the Supreme Court of the United States. In 1810 its first such act ever, the union the Supreme Court will invalidate a statute as unconstitutional. John marshall. His grounds are the contracts clause in the constitution that says no state may pass a law impairing the obligation of contract. This is a contract by the state. The succeeding legislature is unconstitutional. So, it is invalid and the new england Mississippi Land company gets the land. They wont ever actually get the land. It will go to congress. Part of the problem with the lawsuit it is a fascinating story. 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. It was their land. So, how was it that georgia could do this . To give a slightly different take on something, kevin mentioned that it was commonly understood that tribes, the Real Property interest that tribes had was an occupancy right. It is true that some people thought that. But it was really unclear that many people thought that. A lot of people, including jefferson thought, why would that be . Tribes own their land and really, it was kind of a nonissue. It was an academic issue. 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 could not sell them the actual land because they didnt own it. 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. The Supreme Court had to wrestle with that. One justice, William Johnson wrote, of course the tribes owned their land. Of course this whole deal is flawed. The majority, John Marshall, hedged and said, it is not entirely clear that georgia owned what they would call the title to the land. We are not sure what interest the tribes have, but whatever it is, maybe it is not entirely this is hedging language entirely inconsistent with ownership. Now lets talk about something else. We dont get a clear resolution. We get enough of a holding that the original grant was valid. That was allowed in this western part. Tuck that way, because it is going to return. What happens in 1802 is the government finally shakes georgia down enough to seed cede its title claims. One of the conditions that georgia imposes on the u. S. When it cedes and becomes alabama and mississippi is, we want you to get rid of these indians left in the bounds of the state of georgia. The creeks were there. Importantly for our purposes, the cherokees were there. Georgia connected part of them because the constitution vests the treaty power and the federal government. It is only the federal government can negotiate treaties. The constitution also vested the warmaking power and the federal government. Georgia could not constitutionally kick them out. They got a promise out of the federal government that they would take care of it. I will show you where these lands were. This is the view of the same territory from the cherokee perspective. Kevin mentioned the treaty of hopewell. These are successive treaties. Hopewell, that is the peace treaty between the cherokee and the United States at the end of the revolution. The Kentucky Lands are given up and then we have another treaty. At the time of our story, we are headed down to the circle at the bottom. This is the cherokee perspective on all of this. Here. Here is georgias perspective. Georgias perspective. 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, it is 1805. Where the president will say, yeah, we will get on that. They will send somebody down and say hey, you guys, do you want to go somewhere else . They will say, no. All right, 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. We will 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 we are going to be concerned with and on through most of the civil war is john ross, which is a name with which you should be familiar. John ross is the great hero of mid19th century cherokee history. He will end up in oklahoma where his descendents still live today. Ross presided over what has been called by one author, a cherokee renaissance. The cherokee who were in northwestern georgia and parts of tennessee and North Carolina had to come to grips with how they were going to make it surrounded by this nonnative population that was rapidly spreading west. So, 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 they are surrounded by georgians. They will develop a written language. This is the sequoia story. Sequoia is still much revered. Cherokee historical figure he will also end up dying in mexico. Sequoia invented a syllabarie. Different from an alphabet. Many people think he invented the cherokee alphabet. An alphabet includes one symbol per sound. Hey a syllabarie is one sound for each syllable. What that means is it has many more symbols than an alphabet because there are or combinations of sounds and there are individual sounds. Once you have memorized them it is much easier to read. You dont have to sound it out. In consequence of this truly ingenious creation, the Cherokee Nation became widely conceded to be 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 . I didnt mean that. The presence of a syllabary enabled the creation of written documents and a newspaper. In the construction of a new constitution. The place they chose, a city called new ashoka new ashoka. It is in a georgian state park. Georgians have very well constructed, it is worth a visit. The council house. There is 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 print shop where the newspaper was printed. It is still in print the cherokeephoenix. I imagine you could subscribe. These entities, absent the phoenix, were created pursuant to a constitution. This is another thing that the Cherokee Nation decided to do in order to establish its intent to remain. They adopted a constitution in 1827. The constitution included among other things, a separation of powers government. It included also a statement of boundaries. These are our lands. And an affirmation that these will always remain our lands. It is clear from the adoption of the constitution that they are 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. The other thing i think that kicked the georgians into life in the late 1820s was that gold was discovered in Cherokee Nation. Crossing the chattahoochee river and getting rid of these folks became an absolute economic imperative in the minds of many nonnative georgians. What happens . This guy, george troup, i credit with being the mastermind of the strategy i credit with being the mastermind of the strategy that will be employed to engineer cherokee removal. Interesting guy. 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. He found it. Thanks to John Marshall and the Supreme Court. In 1823, 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. The land speculators would push for recognition of title for 50 years. The purchase was in 1773 and 1775. What the Supreme Court did in that case was to hold the purchases and valid on the grounds that the tribes did not own their own land. This was the point at which the federal government does adopt a rule about indian occupancy rights being the limit of tribal land rights. It is a construct of this case. What the court finds is, when europeans discovered the new world they found it in possession of native peoples. 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 discovery european sovereign. That is the king of england. The king of france, fine. The tribes retain an occupancy right, which more or less meant a right to occupy. So they could stay there. And they could sell the occupancy right if they wanted to. The legal term is alienated. But, only to the same discovering sovereign. We call that a preemptive right. A right of first purchase. That portion of the discovery doctrine is still the law. It is enshrined in the trade in the trade and intercourse act. Which says that only the United States, now as successor to the british crown, can buy indian lands. That is still the lot today. The only way you could buy cherokee land is through an act of congress. That is the second part. It is that first part that the underlying title to all discovered lands vested upon discovery in the discovering sovereign, that troup gets excited about. By the way, my belief is that John Marshall essentially adopted this rule in order to solve a problem having to do with the rights of virginia and revolutionary war vets. That had been given to virginias soldiers while they were in full possession and ownership of the chickasaw nation to bring he had to come up with a theory so that there was a land right to give. Here come the consequences. Some beta presents johnson versus mcintosh to troup. He thinks, wait a minute. So, if we declared independence from england. And 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 . And they retain 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. I will miss you. Youve been great, right . That is what happens to the cherokee. What troup does is he marches into the legislature and says, look, we are their landlords. You guys should do something to act on this. He leads the governorship immediately afterwards hand 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 persuades the legislature 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 your lines up and youre going to be parts of four georgia counties till june of next year you can keep your own boss until june of next year. He 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 im a the Cherokee Nation says no. What made georgia confident he 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. 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 this morning. By the way, for this happens, alabama steps up and says, look what georges is doing georgia is doing. They impose their laws over the creek nation. As we will see, within a year this is to be is going to do the same thing. This is more than just georgia by the time all of this becomes the subject of litigation. December 1829, jackson delivers what we recall his stated the union address. A lot of it is about indian removal. He says, look, georgia, alabama have passed these laws. 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 plans for lands out in what was essentially the Louisiana Purchase territory. Way out in the Louisiana Purchase. Right at the Mexican Border and what eventually would be the texas border. That corner is where these tribes were going to be talked tucked. This message was delivered. In the audience, troup. The removal act debate begins early in 1830. The debate last, eventually, about five months. There is support for the tribes position, slid from midatlantic representatives. New england representatives and midatlantic representatives. The response that comes from supporters of indian mobile is, johnson versus mcintosh. Indian is, johnson versus mcintosh. In april the senate were approved the act. Approved the act. The senate accept the except those the following day. Andrew jackson signed them into law. Almost immediately the Jackson Administration starts negotiating with tribes. Look, we have got planned for you now. The first tried to say ok is the choctaw nation. 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, 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 their is a provision saying, and you will only title to those lands. Will own the title to those lands. That is 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 the title to their lands. We call it restricted fee lands. That is a consequence of these negotiations. To avoid having to do with the problem they had to face in the 1830s. John marshall this is a 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. The richmond inquirer published the full text of a georgia judicial opinion. Which was the equivalent, acted as the georgia Supreme Court in those days. In the case of a man named george, this was a cherokee who was accused of killing another cherokee. In Cherokee Nation. Because georgia heading had imposed its law, the georgians went in and grabbed the sky, prosecuted him, and since and 10 grab this guy, prosecuted him and sentenced him to death. 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, 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 constitution would be disregarded. And 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 after denouncing marshalls order as a flagrant violation of georges rights told the governor, basically, kill him now. The governor agreed. 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. 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 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 mort. 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 antimasonic party. We havent heard from them lately. In any event, he failed. And died almost immediately after. He is also famous for having written two mediocre works. I thought they were ok. One was a book called the letters of the british spy, and included sketches of famous richmonders. The other book that he wrote was a biography of patrick henry. It appears that it was wirt who had henry say, 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. In any event this is another trivial piece. The story that i had always heard as an indian lawyer was that wirt represented the Cherokee Nation for free. I mentioned that to one of chief hopkins predecessors and he said, we have got his bill. [laughter] that story make that may not be true either. History. Ok. Wirt teamed up with the guy named john sergeant. And filed this case. In the Supreme Court history was 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. Because the constitution gives the Court Original Jurisdiction in cases where state is a party. The federal judicial power extends to suits between the states and foreign states. Georgia is a state and the Cherokee Nation is a foreign state. It is a foreign state because it just means it is a political entity. It is clearly a political entity. It is foreign because none of its citizens are u. S. Citizens. So it has to before them. 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. 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. The two guys on the right let me back up. The two guys on the left said, 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 every tribe is a foreign state and we are going to become an indian law court. Every tribe is going to sue. It may have been not concerned with caseload that motivated him. Baldwin was a jackson appointee. 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. What marshall says is, the Cherokee Nation are a state, but they are not a foreign state. There is something different. They are a domestic dependent state. He used the phrase mystic dependent nation. He says it like this 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 know as the guardianward relationship. What does that mean . We dont know, says marshall, but we know when it doesnt mean. It does not mean that we have jurisdiction. So we are going to have to kick this case back. Georgia celebrates, 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. That is an invitation to Cherokee Nation to try again. And they well. The very next term they will try again after the arrest of this guy. He is also the federal postmaster in the Cherokee Nation. Samuel was there and Elijah Butler are arrested 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 and John Marshall says, this is the proper case. 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 as the part in which marshall says, the u. S. Has a treaty with the Cherokee Nation in which it is they are a separate state. Given that, georgia cant assert it has legislative authority over them. We have a conflict between what the federal government thanks 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. The bulk of the decision is devoted to a rewrite, without ever mentioning it by name of the johnson and mcintosh discovery rule. As i mentioned earlier, the court said that on discovery, but the discovering sovereign acquired was underlying title and an exclusive right to purchase. What the court says 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. He really goes out of his way to say it. It is a fascinating a fascinating insight into the way that marshall drafted. He doesnt want to say we are overruling the case. That would have undermined the authority of the court. Heres is what the europeans got, thats all they got. They did not get anything else. There is nothing more here, folks. That is all there is. Nobody has ever understood otherwise. Then he moves on. It is that long. It is three or four sentences of him making sure we get the point, without ever mentioning what the something more might be. The purpose is to avoid this situation recurring. How does this play with the other justices . Everybody joins him with two exceptions. John mclean writes an opinion i find reprehensible. He says 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 would not be a justiceable question. Which is essentially, an invitation to go around killing people. He has an opinion of one. Mclean was a perennial president ial candidate and i suspect he was campaigning for southern boats. Southern votes. The last opinion is by Henry Baldwin. Baldwin was a nut, apparently. 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. He had a running fight with the court reporter. Wheaton would write letters of complaint saying, how is that the court and baldwin is sitting in his 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. He almost always dissented, for some reason or another. What happened in worcester versus georgia, he declined to give his opinion to the reporter. That doesnt mean it never showed up. I discovered this by accident when i was researching this book. It had to do with my being really tired and pushing a button on and microfilm reader for too long. I think it was the washington globe from the week or so after the opinion came out and i shot ahead. 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 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 is basically, what baldwins position was, if memory serves was, that the writ of error of the 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 decided. He took 55 pages to say that. It is this long history of the writ of error process. There are this is one 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. 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. He is a bit of a hero of mine. 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. But he may have thought it. And certainly he did nothing to help out in the early days. 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 for a mandate writ issue, which gave georgia time to decide what it wanted to do. Initially, georgia said, hell no. Were not going to let these guys out of jail. 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. 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. You can only get so far in life with indigo and rice. They were opposed to a high protective tariff. Nullification ordinance said, lets adopt this view the constitution is a compact among the states. 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 interpretation is wrong, then we have the right as a party to the deal to nullify the impact of a federal statute. Which means you can collect the tariff anywhere you want, except South Carolina. And if you try to, we will send you to jail. They made it a state crime for tax collectors to collect tariffs. They thought they could do this that summer because Andrew Jackson was summer, because Andrew Jackson was letting georgia stand up to the Supreme Court. South carolinas 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, pushed through the force act, which basically allowed him to send the army down to hang everyone, and this being jackson, that was a threat that was taken seriously, and georgia revealed a notification ordinance, which was the jackson got on the 1832 equivalent of the phone, and said you let those guys out of jail. They hemmed and hawed, they reconvened, and you wouldve 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, yay, but unfortunately, history had one more wrinkle in store, and that jackson decided there is no way i am going to let the cherokees stay now, and 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 the removal of 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. Johnsonmcintosh 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 florida seminoles were subject to this, the mississippi eastern cherokee in the mississippi choctaws, the roots of the tribe that is not leave. Cass wrote a piece for publication called the examination of the cherokee question, we was was published in publications all of the country, which was that worcester was wrongly decided, and so things started to be appearing to turning to be, at least with tribes of the that werent the cherokees. The cherokees had a court victory. They did not have to go anywhere. You can see the chickasaws, choctaws 1830, chickasaws 1832, 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. Climate drove the cherokees to the part. 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, and that leaves a seat. Jackson fills it with this guy, james wayne, who is a georgia jurist and a vigorous proponent of indian removal. Then the same day that wayne is sworn in, just as gabriel devol resigns, which opens another seat for a jackson appointee. So he has already got 1, 2, 3, this will be for justices. Pdevols resignation makes clear this will be jackson appointees, proremoval. The cherokees said to delegations to washington in 1835, after wayne is sworn in and after duvall has resigned. One group is john ross and the national party, and they show up to say, we are staying, right . But there is a second group headed by chief john rich, who i think my reading of the writing on the wall, makes the call, lets get the best deal we can, and so the ridge faction, which is known in cherokee history of 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 move, and 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] now, i think 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. 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 . Well, that its 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. Um, i just wanted to say my second great grandfather and his brother were also jailed with worcester. Oh, i want to talk with you later. I wondered if you knew anything about that. 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 others. When they filed a claim in 1842, worcester wrote letters, exactly what happened in prison and how they were treated. I would love that. Thank you. Thank you. I, uh, 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 were the indians actually taken advantage of . [applause] [laughter] 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. 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 coming a culture he did through acculturated maybe through marriage ended 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 know, hatred, may, 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, and it may surprise you 1924. 1924. And there were some states that did not great state citizenship to tribal citizens until the 1960s. I would just add on the nonlegal side of citizenship, the 1780s, 1790s, what you saw in the washington piece metal, 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, but also, they said, in 50 years, there will not be all that many left anyway. So it was a real sense of will native americans acclimate . And again, they use the term civilized, but not of it happens at the same time, and it was an interesting period in that world, 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 georges position against the federal government, was that sort of the beginning of a states rights kind of idea, do you think . Yes. Do you want to talk about that . Yes. George is it was not the first. In the 20s, they made noises. You go back to jefferson, position that protest and stuff, so there is a long southern tradition with this, but the georgia position did provoke essentially i think close to provoking 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 everyone assumed it. It is in the mid 20th 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. All right, thank you all very much. [applause]

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