The Jurisprudence of the Removal of Native Americans

William Wirt. By: Henry Inman.

In the face of the removal of Native Americans, the Cherokees turned to the federal courts for help.

In response to Georgia violating a federal treaty, the Cherokees hired John Sergeant and William Wirt and brought a suit in the Supreme Court of the United States. Daniel Walker Howe, What Hath God Wrought: Transformation of America, 1815-1848, 355. This case, Cherokee Nation v. Georgia, was brought “to restrain the state from extending its authority over them.” Id.

Chief Justice John Marshall, in March 1831, wrote for the 4-2 majority that the Cherokees constituted a “domestic dependent nation” and was not a sovereign “state” that could bring a lawsuit in the Supreme Court of the United States. Id. citing Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1-80 (1831). This was the Court’s way of avoiding the confrontation of state power and the executive branch, as President Andrew Jackson had announced a month before “that he would not protect the Choctaws against the state of Mississippi in an analogous situation.” Daniel Walker Howe, What Hath God Wrought: Transformation of America, 1815-1848, 355 citing Annie Heloise Abel, History of Events Resulting in Indian Consolidation West of the Mississippi River (Washington, 1908), 397.

A year later, in 1832, the Supreme Court was faced with a second challenge emanating from the Cherokee-Georgia crisis. See Daniel Walker Howe, What Hath God Wrought: Transformation of America, 1815-1848, 355. Governor of Georgia, George Gilmer, had removed Christian missionaries from Cherokee lands, but two missionaries, Samuel Worcester and Elizur Butler, refused to leave. Id. They were convicted and sentenced to four years of hard labor, and they appealed their convictions to the Supreme Court of the United States. Id. John Sergeant and William Wirt again took the case, and this time, they were vocal adversaries of President Jackson. Id. Chief Justice John Marshall delivered the opinion of the Court, proclaiming that the Cherokees were “protected by federal treaty within [their] own territory, ‘in which the law of Georgia can have no right to enter but with the assent of the Cherokees.'” Id. quoting Worcester v. Georgia, 31 U.S. (6 Peters) 515-97 (1832).

The Supreme Court had finally sided with the Cherokees but did so perhaps knowing that enforcement of its order was an entirely separate issue and one that would be difficult to overcome. By this point, the Native Americans, and particularly the Cherokee, must have realized that the American government was not going to be sympathetic in any respect. Not even the courts, who were supposed to objectively administer justice and uphold the laws, were willing to stick up for the Native Americans. The country had created and perpetuated a system of government that was designed to fulfill the goal of manifest destiny, and public opinion had reinforced this objective. At this time, the Native Americans simply had no other option but to acquiesce to the prejudice and scorn that Americans heaped on them.

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