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Discover Mid-America — March 2005

Cherokee Cases critique the rule of law

The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty by Jill Norgren, foreword by Kermit L. Hall and Melvin I. Urofsky; paperback, 224 pages, 3 maps; 2004, University of Oklahoma Press, www.oupress.com.

The history of Native American-U.S. relations has often come down to the details — antagonisms between people and cultures, army decisions and movements, or Indian raids on villages, farms and wagon trains. More often the stories of treaties, land deals, allotments and acculturation programs include important notions of cultural conflict, federal and tribal government corruption, and even the manipulations of special interests.

But rarely do historians discuss in detail the legal basis for Indian removals, treaties and exterminations. Just as infrequently do historians discuss the development of Indian nation sovereignty.

These two issues, land appropriation and sovereignty, are precisely why Jill Norgren’s The Cherokee Cases is such an interesting and compelling study of federal Indian policy.

And while Norgren looks at U.S. Supreme Court cases critical in creating federal Indian law, she brings the cases to life with her lively and accessible narrative, filled with complex characters, making the book as well-developed as a novel. She tracks the development of the Cherokee and other southeastern Indians from indigenous tribal groups to nations, which is still a concept difficult for many Americans to understand.

Norgren argues that federal Indian law and policy was and remains colonial in nature, and that Indian sovereignty depends on an exploitative and colonial notion that Indian nations are nations only at the whim of the sovereign, in this case, the United States. She examines two cases in particular that became precedent for most federal Indian law to follow, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832).

In Cherokee Nation, the Cherokee challenged a number of anti-Indian jurisdiction laws preventing natives from enforcing laws on white Georgians while on Cherokee land. In Worcester, the Cherokee went against Georgia law that prevented whites who had not sworn allegiance to Georgia from coming into contact with natives.

Georgians played a race game, one that dominated American thinking at the time. The Cherokee had begun to do well at the white man’s game after some 200 years of decline. By the 1820s, the Cherokee had so “internalized” European notions of farming, commerce and government that they had come to dominate eastern Georgia’s economic and social structures.

But the interlopers faced a formidable foe. Cherokee had also “internalized” European notions of law — law enforcement and legal precedent, reasoning and argument.

When Georgia determined to remove Indians from Georgia in the late-1820s, John Ross and the Cherokee leadership hired white attorneys to argue the nation’s case for land rights and sovereignty in federal court. The cases advance to the U.S. Supreme Court under John Marshall.

Manipulating legal precedent and commentary in natural law, English common law, colonial law (that the new nation inherited), and international law, Marshall and the Supreme Court determined precedent that would establish native-nation sovereignty but limit it to “the whim of the sovereign.”

This, of course, led to a federal Indian law and policy consistent only in its arbitrary and highly political nature, its ability to be manipulated to serve white (or dominant culture) constituencies, and streamline native peoples into an economic system where capital and political access determine who will benefit from specific policies.

Norgren points out that only with a swift and determined move away from using legal precedent can federal Indian law be brought out of its present colonial state to create a consistent and maintainable set of statute law and sovereign rights for Indian nations.

The Cherokee Cases has a good bit of supporting material present. And it’s great reading, captivating to the extreme.

Patrick Dobson is a journalist, poet, and freelance writer and editor based in Kansas City, MO. He publishes and edits the online literary magazine, the poetrysheet. His award-winning columns, editorials, and articles have appeared in PitchWeekly, eKC, and Discover Mid-America. His poetry and short stories have been published in the pages of The Kansas City Star, Review, Friction Magazine, Mid-America Poetry Review, The Same, and Thorny Locust. He is now pursuing a doctorate in history at the University of Missouri-Kansas City.

Patrick Dobson can be contacted at poetrysheet@earthlink.net or publisher@discoverypub.com.

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