Chief Justice John Marshall and the Cherokee Cases

Oklahoma University law Professor Lindsay Robertson examined Chief Justice John Marshall and the Supreme Court’s decisions in cases involving the Cherokee Nation. In the 1830s under President Andrew Jackson, the Cherokees were forcibly removed from their lands in the southeastern U.S. in what became know as the “Trail of Tears.” This talk took place in Richmond, Virginia as part of a day-long symposium.

So this is the law portion. I know you’re thrilled this morning, uh, but it’s actually more than that, and I am beyond excited right now. I get to make a public announcement. I’ve been getting texts this morning from various—sorry, I really am going to have to just stare—I could hold it—oh, better, this is the game show method. Okay, so, so we have beautiful prizes. I won’t do that.

Um, so I’ve been getting texts this morning in the last 15-20 minutes. This just got dropped on the national news, and I told folks I was going to share it with you, and they were thrilled that I would. Here’s the headline: Biden Nominates First Native American Woman to Oklahoma Federal Judiciary. And even better, it’s my friend and the friend of many of those in the room, I’m guessing, Sarah Hill, former Cherokee Nation Attorney General who just stepped down and evidently decided this is what she wants to do next. I’m going to read the first paragraph. This wasn’t in my pre-prepared thoughts on what I would say, but what a joy it is to be able to do this today.

President Joseph R. Biden announced his intent to nominate Sarah Hill, Cherokee, to serve as a federal judge in the United States District Court for the Northern District of Oklahoma. Miss Hill is President Biden’s fourth Native American judicial nominee and, if confirmed by the US Senate, which is expected, would be the first American Indian or Alaskan native woman to serve as a federal judge in Oklahoma. Imagine that. She would be the only actively serving Native American federal judge in Oklahoma and the seventh actively serving as a federal district judge in the United States. She’s not here, but can I invite a round of applause for Sarah? That’s absolutely wonderful news.

So, what am I going to talk about? It’s hard to talk about anything beyond that. It’s huge news, it’s significant historically, and maybe I can use it as a segue to what I think is an under-told story in the Trail of Tears narrative, probably not among you but nationally, which is the role that the Supreme Court played both good and bad in the Trail of Tears and forced migrations of the Southeastern tribes. The good part most folks know. You’ve heard of Worcester versus Georgia, and I’ll talk about that. One part of the story that isn’t told, though, is the darker part, the accidental part, which is the Johnson versus McIntosh story.

As Jack mentioned, I wrote a book about this that took 14 years because it took forever to find any of the primary materials. That story was so unexpected it could be a different talk, but I found them in the possession, the basement of a furniture maker outside of Philadelphia—the entire corporate records of the plaintiff, Illinois and Wabash Land Companies, in Johnson versus McIntosh—hundreds of documents related to that case that turned out to be collusive and gave us something called the Discovery Doctrine, about which some of you may know. That was the case that basically resulted in the dispossession of title to all the lands of North America discovered by Europeans, including the lands of the Cherokee Nation in Georgia and North Carolina and Virginia and elsewhere, lost to the discovering English and then to the United States, and a loss that played a significant role, as I’ll discuss, in the pressing of the removal process by the Jackson and Van Buren administrations.

So, that case I want to begin with, and then I’ll tell you—I’m actually going to read a part of it just because I think it’s important to hear. I’ll give you a little bit of the background if you decide, gee, this is really cool and you want to know more. Jack referenced Jack and I and Chief Hoskin, who is a treasured former student of mine from the law school at Oklahoma and others, were invited to deliver speeches at a panel held at the Virginia Museum of History and Biography the week before COVID caused a national shutdown. C-SPAN covered it, and so you can watch me and Jack and Chuck and others on C-SPAN. The title of the conference was “John Marshall, the Supreme Court, and the Trail of Tears.” And it’s gripping, right, Jack? Yes, it’s gripping. So, if you’ve got nothing to do one Saturday and you want to invite all your family over to hear all this story in much greater detail, I’m going to focus on a part of it that I’ve been thinking a lot about lately.

So, alright, that’s a lot of introduction. Johnson versus McIntosh, case number one. This is John Marshall. We’re going to spend some time with him right now. Johnson versus McIntosh arose from a late Colonial land speculation in the 1770s. In 1773 and 1775, the British Empire in North America was starting to break apart. You’ll remember the Boston Tea Party and this sort of thing. Land speculators, being land speculators in Philadelphia and Baltimore, decided to take advantage of the political confusion, sent wagon loads of trade goods out to what would become the states of Indiana and Illinois, and in two separate transactions in 1773 and 1775 purchased by treaty a pile of land from the Illinois tribes and the Piankashaws and the Weas and others—the Kaskaskias—land, as one of them would later say, “more land than all of England.” And it’s true. When you look at the maps, it was an absolutely enormous quantity of land. Then they spent 50 years trying to get somebody to recognize their title to this land. The British wouldn’t, the Virginia colonial government wouldn’t, the Virginia revolutionary convention wouldn’t after the war started, the Continental Congress wouldn’t, then they went to the US. Nobody said no mind, with one exception, but nobody said yes. They pressed this thing, paying off members of Congress, some of whom you’ve heard of and I won’t spoil the story—you can watch me and Jack or read the book—and finally decided the only way we can get somebody to recognize this is through the Supreme Court. They filed a lawsuit in 1818 or so. The case went to the Supreme Court, was finally heard by the Supreme Court in 1823 as the Johnson versus McIntosh case, and they lost, which is why you’ve never heard of them. Had they won, my friend in Pennsylvania, who had the documents, would be a name that you would know because he would own most of the Midwestern United States, or others in his family and other descendants of the groups of speculators, and the world would be a very different place.

So, how did the court decide? Well, the principal grounds—I won’t go into the material grounds—had to do with whether a British Royal Proclamation prohibiting individual purchases of land from the Indians, the Proclamation of 1763, was constitutional or not, was valid or not, and the court decided it was, and so there you go. But that is not what most people read in the Johnson versus McIntosh opinion. The first 15 to 20 pages of an opinion that’s not much longer than that is devoted to the exposition of this thing called The Discovery Doctrine. I want to read you the language in the opinion where Marshall announces that this Doctrine is the law in the United States, then I want to explain what subsequent scholars and courts have interpreted him to mean by that, and then I want to talk about how this is really what gave us Indian Removal.

Here’s the language. Marshall says:

“On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered ample field to the ambition and enterprise of all, etc., etc., etc.”

Skipping ahead:

*”But as they, the European powers—this is France, Spain, etc.—were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition which they all asserted should be regulated as between themselves. This principle

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