The Constitutionality Involved In The Removal Of

T Essay, Research Paper

U.S. Constitution The Constitutionality involved in the Removal of the Cherokee Indians The debate over the legality of sovereignty and acquired lands from the native Americans (specifically the Cherokee) has long been debated. The issues involved have included treaties, land sold or ceded, and the right of the Government to physically enforce their rules on Indian land (i.e. sovereignty). This paper will examine the tactics used by the Federal Governments, the State Governments as well as those of the Cherokee on these same issues. Was the way that these lands acquired prove that justice had been served, fairly and in a humane fashion? What Constitutional basis did each side have in defending their position and what has since happened to the Cherokee peoples along this journey? Who was right and who was wrong? These and other questions will be answered as the three-way relationship between the Federal Government, the Sate Government and the Indians is examined. As well as the previous issues; also being examined will be how the interpretation of the Constitution will change as society redirects it course prior to the year of 1840. The Cherokee Nation, was the largest of Five Civilized Tribes of the southeast. They are a people of Iroquois dissent. The Cherokee who were known as Ani -Yun wiya or principal people migrated to the southeast from the Great Lakes region. They held more than 40,000 square miles of land in the south by 1650 with a population estimated at well over 30,000. Similar to other Native Americans of the southeast, their nation was a confederacy of towns each under the rule of a supreme chief. In short, the Cherokee culture and society thrived and prospered in the Americas prior to contact with the Europeans. No Society has ever made a more dramatic cultural shift then that of the Cherokee. This, a culture that had suffered pronounced side effects of Europe even prior to the introduction to European man. With the introduction of man onto the Americas so came something unknown to them, Disease. Unable to counter these viruses many of the Cherokee were wiped out. Reports state that between 40 and 50% of their culture died from diseases such as: smallpox, typhus, and measles. With the sudden lose of population, there is no doubt that this population also lost leadership and knowledge through these deaths. Once the obstacle of disease had been passed came the addition of a new opponent: the European man. In 1783 after a long fought American Revolution the Americans and the British signed the Peace of Paris to officially end the war. The United States approach to dealing with the problems of the Cherokee rested on the theories formulated in Europe. Which were according to international law, England had owned the American colonies by right of discovery which also gave right to the claiming of land currently occupied by non-Christian and uncivilized peoples, by the right of conquest. What this would convey is that the British Government would accept and recognize colonists and Indians the right to own and use lands, govern amongst themselves and develop their own economies but authority was always given to the sovereign authority of England. So when the British government had lost the Revolutionary war, by right of conquest the United States won all of England s authority, which included rule over all of the people and land in the Americas. This is the same logic, which was extended to the Indians that were in fact living on their land. But rather then defend (by another fight) the right of conquest against the Indians, Congress wanted to conduct peaceful negotiations with them instead. This brought about the treaty of Hopewell in 1785 which historically was the very first treaty between the United States and the Cherokee people. The treaty was in fact one of courtesy, which was to promote friendliness and good relations between the Government and the tribes. The reason also for the treaty was to protect the Cherokee from the encroaching states of North Carolina and Georgia. However, according to Perdue and Green this treaty was deemed a failure because both of the above mentioned states would not support it. Due to the quickly expanding American colonies the Federal Government realized that in order to prosper they needed more land. In order to due this, the Constitution of the United States specifically now stated that sole authority over Indian affairs into the hands of Congress and the President. With the newfound ability to legally control the Native Americans George Washington placed into the intrinsic handling of Henry Knox. Knox who was the first Secretary of war had experience with dealing with the Indians and believed that they in-fact were sovereign independent nations and indeed needed congressional control to prevent unwanted trespassing by whites. Knox has said that: the federal government had a moral obligation to preserve and protect Native Americans from extinction But along with this view Knox also believed that as the American population grew Indians should surrender their lands to them, a theory later known as expansion with honor . When the treaty of Hopewell was seen as a failure, President Washington sought after a new program to continue the existence of the Cherokee people and weave them into mainstream society. This program would be named the assimilation policy which Washington felt could be accomplished in approximately 50 years. The assimilation program brought technology to the Cherokee people in the form of spinning wheels and carding machines to go along with the already present cotton. The reason for this introduction of technology into their society was a move to propel them further as well as making them economically competitive with the white European. Washington and Knox both encouraged the introduction of white ways into the tribal people by assisting in instilling missionaries which would aid in the education and promote American nationalism into the Cherokee and vault them into the ever increasing populated Americas. As the Cherokee people are becoming more competitive with the white man a distinguishable trait among them is recognized: money. The Cherokee people are slowly becoming infatuated with this newfound power and soon it takes predominance in their lives. With the newfound concept of money, the Cherokee begin selling off their land to the federal government and private citizens. In time this may seem like a morally wrong thing to do with the educational advancement (i.e. susceptibility) that the people who were dealing with the Indians, but at the time it appeared like taking candy from a baby. In the Treaty of 1817 for instance the Cherokee people ceded all land in northern Alabama, northeast Georgia and southern Tennessee in exchange for land in northwest Arkansas and cash. The problems that arose with the Indians ceding off their land resided in the fact that Indian Nations did not have a major say in the types of dealing that were occurring, and in order for them not to become homeless, they need to regulate this practice. In 1817, the Cherokees enacted articles of government, which gave authority to the National Council to cede lands. Subsequent legislature provided for appointment of representation among districts, a standing committee with executive powers, and a Supreme Court. This Centralization of power came about because wealthy Cherokees wanted to protect their land and also to preserve the Indian Nation. In time the Cherokee peoples had a legitament government in place which continuously turned down federal commissioners who wanted to negotiate for their land, claiming that they had already sold too much and had no more to spare . It was at this time that a future president would come to the limelight: Andrew Jackson. His Staunch views and solid support by the southern states promoted his appeal to abandon treaties and mearly enact Congresses power eminent domain and take the Indians land.

Because Assimilation was not working very well, newly formed groups assumed that the next best step to take would be expulsion from the lands. Andrew Jackson won the presidency in 1828 with almost unanimous support from southern voters who assumed that he would expel the Indians. The problem with expelling the Indians was that the law states that: required land could be purchased by treaty only, and federal policy respected the sovereign right of the Indian nations to refuse to sell. Because of this stipulation expelling them was no longer an option. Instead after Jackson became President Georgia expanded its policy of extending state civil and criminal jurisdiction over the Cherokee Nation. Defending this policy, Jackson stated that: Georgia is mearly using its sovereign right to govern all the territory within its boarders. This view of sovereignty showed an example of the interpretation of the constitutional provisions of federal supremacy in Indian affairs and the treaty stipulations that had to be defended for the Native Nations from frontier settlers. From this point on it would be recognized that with Jackson in the Presidency that interpretation in favor of the Cherokee would begin its downward spiral. This is said with reference pointing towards the policies, judgments and societal attitudes that in-fact were present. These policies used in reference are with regard to the 1827 written constitution by the Cherokee peoples and proclamation of being an independent state. In response to this action the Georgia legislature extended state law over Indian Territory, annulled Indian law, and directed the seizer of all Indian lands. To further oppress the Indians, President Jackson also denied the right of Indians to become an independent nation within sovereign states. To further this precedent a case involving the Cherokee nation V. Georgia (1831) the Supreme Court held that an Indian tribe was neither a state in the Union nor a foreign nation within the meaning of the Constitution and, therefore, could not maintain an action in the federal courts. Chief Justice Marshall furthered by saying: that the Indians were domestic dependent nations under the sovereignty and dominion of the United States, who had an unquestionable right to the lands they occupied until title should be extinguished by voluntary cession to the members of the United States. This statement will begin the tone of why Georgia was justified in acquiring lands from the Cherokee peoples. It is agreed upon that the Cherokee people were in fact cheated in the loss of their property, but not in the sense of stolen which is usually meant by the use of this word. They were merely trying to play a game in which they did not fully understand the rules and consequences. (This statement will be backed up with reference earlier in this document in which the concept of money and land value were unfathomed by the Cherokee people.) Arising from a fair exercise of the treaty making power with a foreign government, entirely unconnected with any disputes about the relative power of the State Government, and also that of the Government of the United States, that Georgia stands perfectly justified in its actions. The Cherokee were acknowledged as independent nations, by treaties made first with the state of Georgia, and lastly with the United States. The United States virtually guarantied the independence of the Cherokee. that treaties with the United States are the supreme laws of the land, and must be executed, although they may be in collision with the states constitutions and the state laws . The independence of the tribes rests on this above-mentioned argument that the formation of a treaty is, between parties, an- acknowledgement of mutual independence . With the basis of treaties stated direction will be placed to the treaty of Galphinton, agreed upon in 1785: Article 1. The said Indians, for themselves, and all the tribes or towns within their respective nations, within the limits of the State of Georgia, have been, and now are members of the same , since the day and date of the constitution of the said state of Georgia. This article is broad enough to lay claim of the state to the sovereignty over the Cherokee. In quoting form Georgia documents If they were member s of the state, as they acknowledged themselves to have been, from the adoption of the constitution of Georgia, what became of their separate and independent character as a nation or a tribe Another point of reference lay within the treaty of DeWitts s corner signed in 1777 with the states of South Carolina and Georgia: “Article 1. The Cherokee Nation acknowledged that the troops, during thelast summer, repeatedly defeated their forces, victoriously penetratedthrough their lower towns, middle settlements, and valleys; and quietly andunopposed, built, held and continue to occupy, the fort at Esenneca,thereby did effect and maintain the conquest of all the Cherokee landseastward of the Unicaye Mountain; and to and for their people, did acquire,possess, and yet continue to hold, in and over the said lands, all andsingular, the rights incidental to conquest; and the Cherokee nation, inconsequence thereof, do cede the said lands to the said people, the peopleof South Carolina.”In this article the Cherokee admit that they by right of conquest these states acquired a right to this land. Attention will now be directed towards the above-mentioned treaty of Hopewell with reference to a contract made between the United States and Georgia in 1802. With reference to the ninth article of the in the Treaty of Hopewell, the power of legislation over the Cherokees, had the goodness to transfer it to the State . By the firstarticle, Georgia ceded to the United States all her right, claim, title, to the jurisdiction and soil of the lands lying west of the Cattahoochie, as far as Mississippi, on specified conditions. By the second article, the United States accept the cession on the conditionsexpressed, and they “cede to the State of Georgia, whatever claim, right,or title, they may hand out of proper boundaries to the jurisdiction and soil of any lands, lying within the United States and out of the proper boundaries of the States of Tennessee, North Carolina, and South Carolina and east of the boundary line described here. To summarize this point the United States obtained by treaty, the power to legislate over the Cherokee Nation, and then transferred that right to the state of Georgia. In conclusion, the State of Georgia is recognized as legally acquiring lands from the Cherokee people. Now, the reason for this legality is because with addition to the points stated above the Constitution of the United States says in Clause that: Congress shall have power to regulate commerce with foreign nations, between states and with the Indian tribes. This power was in-turn ceded to the individual states with the ideal to form and make treaties of their own. Georgia again was not committing any crimes or unjust in their dealing with the Indian peoples.