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 uni