Supreme Court of the United States – 30 U.S. 1 (1831)
The Cherokee Nation is subject to the laws of the State of Georgia.
There is no doubt that the Cherokee Nation constitutes a distinct political society. However, the Cherokee Nation cannot be considered “foreign” for the purposes of the US Constitution. As such, it cannot go before the Supreme Court to prevent the State of Georgia from implementing its laws.
The Cherokee Nation is not a “foreign state”. Its territory is a part of the U.S., and the relation of the Nation to the U.S. is like that of a ward to his guardian. It would be more accurate to refer to the Cherokee Nation as a “domesticated dependent nation” (4 against 2).
Between: Cherokee Nation of Indians
And: State of Georgia
The Cherokee Nation was established thousands of years ago in multiple states of the U.S., including Georgia.
In the early 1820s, an Indian removal policy was established with the Cherokee Nation being the principal target.
In Georgia, multiple laws were adopted to cause the Cherokees to give up their ancestral lands in exchange for other territory situated to the west of the Mississippi River.
As a result of the failure of these measures, the government tried to force the Nation to leave Georgia through the adoption of strict laws that deprived them of their rights.
In 1930, a delegation of the Cherokee Nation led by Chief John Ross presented a motion for injunction before the Supreme Court of the United
Cherokee Nation: The Cherokee Nation is a foreign state and has therefore the right to plead before the Supreme Court. The Cherokee Nation is a sovereign and independent state.
Georgia: The Cherokee Nation is not a foreign state and therefore the Court has no jurisdiction to hear this case.
Marshall and McLean
Johnson and Baldwin wrote concurring judgements.
There is no doubt in this case that the Cherokee Nation constitutes a state. The issue here is to determine whether it is a foreign state.
It was not the intention of the framers of the Constitution to include Indian tribes in the provision for dispute between states of the union and foreign states. There is nothing in the context that would suggest that Indian tribes might be considered foreign states.
The Court may only hear cases brought forward by foreign nations. The Cherokee Nation is better described as a “domestic dependent nation”. As a result, the Court has no jurisdiction to hear the dispute between the State of Georgia and the Cherokee Nation.
Johnson J.: Although the current form of Cherokee government constitutes a civil government, it is the executive’s prerogative to determine whether or not the Nation is a state. There is no recognition of the Cherokee Nation as a state and no legal document conferring statehood.
There is no recognition of Cherokee sovereignty over the lands they occupy. Although the Cherokee Nation has the right to self-governance and possession of the lands it occupies, permission is required in order to cede lands, which consequently puts the Nation in a position of dependence as they do not have title to their lands.
Baldwin J.: The regulation of Indian affairs is not controlled by the department of foreign affairs.
Although treaties have been concluded with the Cherokee Nation, they have not been concluded as among equals. The U.S. exercises full sovereignty and jurisdiction over their lands. This puts them in a position of dependence towards the State.
This dependence precludes the designation of the Cherokee Nation as a “foreign state” or sovereign nation.
With regards to political power, this case had an international impact due to the generosity of Marshall J in choosing his words (Jenkins, 2001). In this judgement, he acknowledged the political sovereignty of Aboriginals in the U.S. The Cherokee Nation was deemed to have a certain semi-sovereignty limited by the protection of the U.S. and the government title to the lands they possessed. The relationship defined as that of a ward and its pupil laid the foundation for the fiduciary relationship (Jenkins, 2001).
The lack of constitutional guarantee of aboriginal rights in the U.S. permits Congress to limit them at will, although their sovereignty is presumed (Jenkins, 2001).
The Court, although acknowledging the limited sovereignty of the Cherokee Nation, refused to consider them as a foreign state. They were forced to give up their lands to Congress in 1835, pursuant to the laws adopted by the State of Georgia. They were given two years to leave their ancestral lands (eNotes, 2013).
On the way to their new lands reserved by Congress, more than 4,000 Cherokees died as a result of inhumane conditions in the detention camps, lack of food, shelter and clothing, and inadequate sanitation. This journey was later called the “Trail of Tears” (eNotes, 2013).
Johnson & Graham’s Lessees v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)
Worcester v. State of Georgia, 31 U.S. 530 (1832)
Jenkins, Christopher D. 2001. “John Marshall’s Aboriginal Rights Theory and its Treatment in Canadian Jurisprudence.” University of British Columbia Law Review 35: 1-42.
“Cherokee Nation v. Georgia (Supreme Court Drama) Study Guide & Homework Help – Reference – eNotes.com.” Study Guides, Lesson Plans, Homework Help, Answers & More – eNotes.com. http://www.enotes.com/cherokee-nation-v-georgia-reference/cherokee-nation-v-georgia (accessed July 2, 2013).