>>Dr. Joshua Nelson: Hello again. I'm here with Lindsay Robertson, a professor of law
here at the University of Oklahoma. I would try to run through all of the titles attached
to your name, but my memory is slipping in my old age. But welcome, Lindsay. Thanks for
coming.
>>Dr. Lindsay Robertson: Thank you. It's a pleasure to be here.
>>Dr. Joshua Nelson: Good. Could you tell us a little bit, as we're working our way
through Cherokee nationalization, just a little bit about your background - how you came into
Indian law and the work that you do here.
>>Dr. Lindsay Robertson: Sure, I started practicing Indian law in Washington, DC in the late 1980s.
When I started practicing Indian law, one of the big focuses for DC Indian law firms
was the, was land claim litigation. And so I got involved in that a little bit and then
in 1988, Congress passed the Indian Gaming Regulatory Act, which created an interest
in, in lots of tribes that, that established gaming operations in diversifying their economy.
My legal background, prior to becoming an Indian lawyer, was as a business lawyer--
>>Dr. Joshua Nelson: Oh. Okay.
>>Dr. Lindsay Robertson: --and so I suddenly found that skill set involved in, in tribal
representation. And what had started out as just a part of my practice became most of
my practice. In 1991, I was invited to teach or co-teach a course in Indian Law at the
University of Virginia Law School, which is where I went to law school. I did that for
a number of years, and it was fun. I went back to school, got a doctorate in history--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --focusing on history of federal Indian law and policy, and then
decided with that to become a teacher full-time--
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: --because it was fun. And I joined the faculty of the College
of Law at the University of Oklahoma in 1997, and I've been here ever since. I'm a professor
of law and Director of the Center for the Study of American Indian Law and Policy--
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: --at the College of Law.
>>Dr. Joshua Nelson: Yeah. You've, you've got a lot to, a lot to contend with there.
>>Dr. Lindsay Robertson: It's a, it's a busy life.
>>Dr. Joshua Nelson: I believe that.
>>Dr. Lindsay Robertson: But a fun one.
>>Dr. Joshua Nelson: Yeah. Good. Well, as an expert in federal Indian law, you can answer
some questions so maybe we've got coming up here. Let's start with John Marshall. His
trilogy, the the Marshall Trilogy, as we sometimes hear it referred to, in many ways kind of
laid the, the bedrock or the, the, the foundation for federal Indian law. Is that right?
>>Dr. Lindsay Robertson: Yeah. You can't--it's, it's impossible to talk about the rights of
tribes without sort of wrapping your mind around how the federal court system has defined
those rights.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: The world that we live in really is fixed by the U.S. Supreme
Court. And while there are rights that people will argue go kind of beyond what the Supreme
Court recognizes, it's, it's those rights that the Supreme Court recognizes that, that
tribes can enforce--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --and actually get federal support for enforcing. So that's kind
of the focus of federal Indian, Indian law and, and policy and as, as you mentioned the,
the-these three John Marshall decisions, which we call the Marshall trilogy, are the, are
the foundation. They, they create sort of the framework--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --within which most of federal Indian laws developed ever since.
They've given us some of our--the concepts that we have to work with, some of the relations
that we have to understand.
>>Dr. Joshua Nelson: Right. Working across purposes sometimes.
>>Dr. Lindsay Robertson: Yeah. Sometimes hard to reconcile, although reconcilable. And that's
where sort of the, the view of the historian comes in.
>>Dr. Joshua Nelson: Right. Well, let's see if we can work those out. But let's start
at the start with Johnson v. McIntosh.
>>Dr. Lindsay Robertson: Yeah.
>>Dr. Joshua Nelson: And this was a subject of your, your book.
>>Dr. Lindsay Robertson: It was, yeah. This was a book that came from my doctoral dissertation.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: The book came out in 2005 and paperback in 2007, and it's really
a history of the Marshall Trilogy, but focusing on this first of the three cases, Johnson
versus McIntosh.
>>Dr. Joshua Nelson: Okay, and this is Conquest by Law.
>>Dr. Lindsay Robertson: Is the book, yeah. Now there--so there are three cases in the
Marshall Trilogy. The first is Johnson versus McIntosh 1823, the second is Cherokee Nation
versus Georgia--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --in 1831, and the last is Worcester versus Georgia in 1832,
which is, is probably the, the best known.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: It's the case that's then followed up with Indian removal and etcetera.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: Johnson versus McIntosh, the first case, a lot less has been known
about. It was a case that arose before the British Empire collapsed. So in 1773, 1775
two interlocking groups of land speculators, based in Philadelphia and Baltimore, Maryland
for the most part, decided to go west out into what would be the old northwest, and
is now the states of Indianana--Indiana and Illinois--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --and, and buy some Indian lands.
>>Dr. Joshua Nelson: Lots of Indian lands.
>>Dr. Lindsay Robertson: See how much they could get away with.
>>Dr. Joshua Nelson: Uh huh.
>>Dr. Lindsay Robertson: Their, their problem was that it was illegal under British law.
The King of England, George III,--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --the guy who talked to trees in his latter years had issued out
proclamation in 1763, at the end of the Seven Years War, saying--basically part of the problem
we had and part of the reason we had to fight the French is that the-a lot of the tribes
out west were kind of pissed off at what colonists were doing. And so, we want to keep those
people apart. And so the proclamation among other things says that there's going to be
a line that runs down the ridge of the Appalachian Mountains. And all the folks, all the English
folks, on the east side of that line are going to have to stay where they are--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --because everything west of that line is reserved to the Indians
under our protection.
>>Dr. Joshua Nelson: This is a, a fascinating sort of counter story that you were--typically
used to hearing about unfettered expansion when in fact, the Crown was interested in
limiting expansion across the continent.
>>Dr. Lindsay Robertson: Well, and the United States afterwards because it, it sort of got
effectively replicated by the Continental Congress, sort of, you know, we're going to
take charge. We're going to regulate the acquisition of Indian lands. We don't want people just
going out there unrestrained and, and causing military problems for us.
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: Well, what these speculators did was to get a hold of a, of
a an old British Crown officer in London, a guy called Lord Camden, and with his help
they located an old legal opinion that if you changed a word here and maybe sort of
modified a word there, deleted a word here, could be read to have overturned the Proclamation
of 1763's restriction on acquisition of Indian lands.
>>Dr. Joshua Nelson: Okay, so this is not a, a th-that was not what the legal opinion
said, was that you could overturn--
>>Dr. Lindsay Robertson: No.
>>Dr. Joshua Nelson: --that edict.
>>Dr. Lindsay Robertson: Well, what the legal--
>>Dr. Joshua Nelson: They, they, they perpetrated a fraud.
>>Dr. Lindsay Robertson: It's, yeah. My medical friends tell me I can't say it was a doctored
opinion, but I can say [both laugh] that it was a, a modified opinion--
>>Dr. Joshua Nelson: Ahhh.
>>Dr. Lindsay Robertson: --driven, driven by fraud. What, what they had done--the, the
opinion had been written at the request of the British East India Company.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: Which was going to the Indian subcontinent, and, and as part
of its activity, acquiring land from local princes and Mughals.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: The problem that they faced was that they couldn't buy those
lands without the King's permission. So they'd be sitting at dinner and somebody would say,
a British-an Indian Mughal would say, "Would you like to, you know, buy this land?" They'd
say, "That'd be great. Hang on."
>>Dr. Joshua Nelson: [laughs]
>>Dr. Lindsay Robertson: [laughs] And they'd send the boat back. Six months later it would
arrive in London, King would say, "Sure, I don't care." And then six months later they'd
come back, and the guy would be dead, right, or have changed his mind or something like
>>Dr. Joshua Nelson: Right.
>>Dr. Lindsay Robertson: So they requested an opinion from the top Crown Law Officers
that His Majesty's permission was not necessary. And so the opinion, in its original form,
said: "As to purchases of land from the Indian princes and Mughals, His Ma-majesty's letters
patent are not necessary--
>>Dr. Joshua Nelson: Uh huh.
>>Dr. Lindsay Robertson: --titled to the land vesting in the Company." And the words they
took--they changed, they took out that Mughal's business -
>>Dr. Joshua Nelson: [both laugh] Right, right.
>>Dr. Lindsay Robertson: And they took-they changed the word "the Company" to "the Grand
T", so it now read: "As to purchases of land from the Indian princes, His Majesty's letters
patent are not necessary--
>>Dr. Joshua Nelson: Ah, so uh.
>>Dr. Lindsay Robertson: --titled to the land vesting in the Grand T." And it's that sort
of accident of nomenclature that we credit Columbus with--Indians, Indians they're all
>>Dr. Joshua Nelson: Mmhmm. Yeah.
>>Dr. Lindsay Robertson: Yeah, so that made--that turned out to be useful to these land speculators.
>>Dr. Joshua Nelson: Yeah, a wide financial world opens up there.
>>Dr. Lindsay Robertson: Well, it turned out. And so these guys and others in North Carolina
ended up getting copies of this thing. We call it the Camden York Opinion. And they
carried it west, and they showed it to British military commanders and said, "Look, the proclamation's
been overturned so we get to buy this land." And the British Garrison commanders said,
"Well, oh, okay - you know, I guess, but it doesn't say you can occupy it, so you go ahead
and buy it." And that was fine--
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: --for the speculators. They ended up buying, as you suggested, massive
quantities of land in these two purchases in 1773 and 1775 from the Piankishaw and the
Wea and the Illinois Indian nations.
>>Dr. Joshua Nelson: Okay. So what went wrong that gets us to the case?
>>Dr. Lindsay Robertson: Well, then they had to get somebody to recognize the validity
of the title that they had purchased.
>>Dr. Joshua Nelson: Mmhmm.
>>Dr. Lindsay Robertson: And so this happens, 1775 as the British Empire is coming to pieces.
So they went to Virginia's royal governor, who was sympathetic. He sent it back to London.
They were not sympathetic--
>>Dr. Joshua Nelson: [laughs] Uh huh.
>>Dr. Lindsay Robertson: But they were preoccupied with other things. It's really interesting,
a letter I found in working on this book in the British archives, sent by the British
Garrison, the British military commander in Boston back to London, saying this is the
first purchase saying, you know, we have terrible news. This guy is out there. He's buying Indian
lands. He's got this Opinion. We can't believe it's authentic, you know, what should we do
about it? And then there's a post-script after his signature, in which he says, "Oh, by the
way, a bunch of Bostonians dressed as Indians threw tea in the harbor last night, but we
don't think anything will come of it, so not to worry." [both laugh] Which is interesting,
you know, it shows you the Boston Tea Party--
>>Dr. Joshua Nelson: Yeah, you got to admire the optimism.
>>Dr. Lindsay Robertson: Well, but the Boston Tea Party was, was a lesser event than this
land purchase--
>>Dr. Joshua Nelson: Uh huh.
>>Dr. Lindsay Robertson: --in the minds of contemporaries. They were sure that this was
going to precipitate another Indian war.
>>Dr. Joshua Nelson: Oh, right.
>>Dr. Lindsay Robertson: But then the Revolution starts, and so they went to the Virginia's
revolutionary government--they weren't going to recognize it. They went to the Continental
Congress--they weren't entirely comfortable with recognizing it. And then the war's over.
There, there's a new constitutional government, so they go to them, and they ended up spending
50 years trying to get some public authority with jurisdiction over the lands to recognize
them as valid.
>>Dr. Joshua Nelson: Uh huh.
>>Dr. Lindsay Robertson: And eventually, [coughs] they gave up on Congress and went to the Supreme
Court, and that's what this case was.
>>Dr. Joshua Nelson: Okay.
>>Dr. Lindsay Robertson: Johnson versus McIntosh.
>>Dr. Joshua Nelson: Alright. [audio fades]