>>Dr. Joshua Nelson: All right, so we know a little bit about how it is that the Cherokee
Nation found itself crossways of the federal government. And brought suit in Cherokee Nation
v. Georgia. Lindsay Robertson's back with us to tell us a little bit about the significance
and, and some of the ramifications of this court case. So tell us a little bit about
what happens with Cherokee Nation v. Georgia. How does that come up to the court?
>>Dr. Lindsay Robertson: Well, Johnson versus McIntosh had created, or incorporated into
American law, this Discovery Rule that said, among other things, that the discovering European
sovereign or by implication, its successor-in-interest--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --owned the title to Indian lands. Georgia, in 1802, had ceded
whatever claims it had to its charter lands, including what became the states of Mississippi
and Alabama, to the United States in exchange in part for a promise from the United States
that it would get rid of the Indians--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --that it would send negotiators down to sign treaties with the
Creeks and the Cherokees who were in western-northwestern Georgia--
>>Dr. Joshua Nelson: This is the 1802 Compact.
>>Dr. Lindsay Robertson: This is in 1802, right.
>>Dr. Joshua Nelson: Yeah.
>>Dr. Lindsay Robertson: Time passed, nothing happened. Primarily because—well, the Muskogee
Creeks eventually signed a treaty and moved west, but the Cherokees weren't interested
in leaving. And the U.S. would send negotiators down, and the Cherokees would say, "We're
quite comfortable, thanks." Then they'd say, "Okay," and they'd go home. Georgia eventually
decided, "We've got to do something ourselves," and they didn't have too many options. They
couldn't declare war. The Constitution says only the U.S. can do that.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: They couldn't enter into a treaty. The Constitution says only
the United States can do that. And then Johnson versus McIntosh was decided, and it said that
the discovering European sovereign, or its successor-in-interest by implication, owned
title to Indian land. So Georgia figured, "Okay, so we own the lands that the Cherokee
Nation lives on, and what that means is that"—to put it into terms that, that they used at
the time and that we still understand now—"we're their landlord."
>>Dr. Joshua Nelson: Aha.
>>Dr. Lindsay Robertson: "We own the building, and they are the tenant." Now--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --how do you get rid of a tenant you don't like if they've
got, sort of, you know, a long-term lease? Well, you, you modify the lease terms. Like
now you'd say, "We, you know, pets, I love your dogs, but you can't have pets anymore
so you can stay--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --but you got to get rid of your pets." And what Georgia did
was to pass a statute in December 1828 that said, "You all can stay as long as you want,
Cherokees, but from now on, you're parts of five Georgia counties, Georgia law will apply
there--
>>Dr. Joshua Nelson: Yours will not.
>>Dr. Lindsay Robertson: --and, and yours will not, and ours will apply to you effective
June 1830."
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: "So the clock's ticking, you've got less than 18 months to figure out
what you want to do. Now you can stay and lose your institutions and your law and be
subject to ours, or if you want, you know, you could go somewhere else." And Andrew Jackson,
who had just been elected President, said, "I can help with this," as they knew he would.
He pushed through something called the Indian Removal Act of 1830.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: It doesn't say--many people think it says in the tribes have to
remove. It doesn't say that. It says, "You all are about to be subjected to state law.
That's a valid exercise of state power.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: "You can stay if you want to, but if you want to move, we will
trade you your lands in Georgia, or wherever it happens to be, for lands out in basically
what was the southwestern corner of the United States." Because it's still--it's the border
with, with Mexico at the time.
>>Dr. Joshua Nelson: Let me ask you this. When Georgia kind of rewrites its lease agreement,
how does it understand how Indians will be treated under its rules?
>>Dr. Lindsay Robertson: Well, as Georgians, which is to say there, there are a few provisions
that I think were in there just largely to be obnoxious. You know, provision, you have
to have a--if you're a non-Indian, you have to have a license from the state of Georgia
and there, you know, you have to swear an oath of allegiance to the governor and this
sort of thing. But, but the real goal was simply to, to subject these folks to essentially
regular Georgia jurisdiction. Meaning if you committed a crime, then Georgia's going to
arrest you--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --haul you back into a Georgia court for prosecution, and send
you to a Georgia prison.
>>Dr. Joshua Nelson: Okay. So what does the Cherokee Nation, which is by now calling itself
the Cherokee Nation after the passage—sorry, after the ratification of the Constitution
in '28, how does it respond?
>>Dr. Lindsay Robertson: Well, Cherokee Nation decides, "We're going to go, we're going to
use the U.S. system. We're going to go to court--"
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: "--and we're going to, we're going to see if we can get the Supreme
Court to tell the state of Georgia to cut it out." They had some sense that the Court
would be receptive to the claim. I think it was, it--in the end, it turned out to be a
well-founded sense--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --that the Court would be receptive to the claim. You know,
John Marshall himself had kind of created the problem, and I, I think that's part of
the reason the Court was willing to flip as far as it did. There's a small case that should
have been a bigger case, the case of a Cherokee named Corn Tassel--this is the worst instance
of the application of Georgia laws.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: This guy was accused of murdering another Cherokee Nation citizen.
He was a citizen of Cherokee Nation, should've been prosecuted by the Cherokees. But Georgia
went in and got him, hauled him out, and sentenced him to death.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: He protested, tried to get relief from the Supreme Court of the
U.S., which sent a note down to the Governor of Georgia saying, you know, "We want to talk
about this. Don't, don't harm this man." And the Governor of Georgia said, "You have no
jurisdiction over me." He sent an order out, and they executed this guy on Christmas Eve.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: I, I think that was upsetting to Marshall, and and I—you know,
so the whole sort of sequence of events was, was upsetting. So, so what does the Court
do? Well, the the case got filed as what we call an original jurisdiction case in the
Supreme Court. Supreme Court can take original jurisdiction, meaning they sit as a trial
court with witnesses and stuff over a fairly small class of cases, but they include--
>>Dr. Joshua Nelson: Usually they have to run up the chain.
>>Dr. Lindsay Robertson: --usually they only come up on appeal. You start at the trial
court--
>>Dr. Lindsay Robertson: --and if you don't like what the trial judge says, you appeal,
and then you appeal again. But, but these cases you go straight to the Supreme Court
of the United States. And one of the classes of original jurisdiction cases are suits between
foreign states, foreign countries, and states of the United States. So France sues Oklahoma--
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: --the Supreme Court hears it in the trial.
>>Dr. Joshua Nelson: And this is the way that the Cherokee Nation tries to bring it too.
>>Dr. Lindsay Robertson: So the Cherokee Nation files suit as the Cherokee Nation, a foreign
state, against Georgia--
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: --Cherokee Nation v. Georgia, 1831. Georgia declines to participate
at the Supreme Court.
>>Dr. Joshua Nelson: Just doesn't show up.
>>Dr. Lindsay Robertson: Yeah. Supreme Court hears the argument and has a hard time actually
accepting the case. And in the end they decide that they don't have jurisdiction. We have
a bunch of different opinions. There is no clear majority, but the, the opinion that
we think of as the Cherokee Nation opinion is, is the one written by John Marshall.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: And Marshall says, you know, they're a, they're a state--like
a nation, but they're not a foreign state. Tribes are different. They're what we might
more properly denominate, he says, a domestic dependent state or a domestic dependent nation.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: That's one of the important linguistic legacies--
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: --of Cherokee nation. We hear that a lot.
>>Dr. Joshua Nelson: And maybe one of the most confusing.
>>Dr. Lindsay Robertson: And maybe one of the most confusing. And then he says, to further
explicate what he means by that, he says their relationship with the United States, the relationship
of tribes with the United States, resembles that of a--this is a quote, "ward to his guardian."
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: So, this is the source of it--that, that language, one paragraph
in Cherokee Nation is the source of two sort of lines of discussion. What's a domestic
dependent nation?
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: And what does it mean that tribes are wards and the federal
government is a guardian?
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: Now, I'll tell you at the time these didn't have any legal meaning.
They're simply explanations for why Marshall, in his opinion, can't find that the Supreme
Court has original jurisdiction under Article Three of the Constitution--
>>Dr. Joshua Nelson: And that's the final ruling.
>>Dr. Joshua Nelson: Sorry, that, that's the final ruling that the Court says is they aren't
going to hear the case--
>>Dr. Lindsay Robertson: There is no jurisdiction, and and the opinion concludes, you know, "We're
sympathetic to the issues raised here, and in a proper case with proper parties, we'd
be glad to resolve them."
>>Dr. Joshua Nelson: They're asking for another case.
>>Dr. Lindsay Robertson: They're asking the Cherokees for another case. And, but so the
Cherokees treat this as a win. Georgia, because the case gets dismis-dismissed, treats it
as a win also.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: And and that's Cherokee Nation versus Georgia.
>>Dr. Joshua Nelson: Great.