Contemporary American Indian History

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What are the fundamental political principles that define and shape American constitutional government?

There are five foundational political principles that defined and shaped American constitutional government at the birth of its constitution. The five principles are the following:

• Consent of the governed: the people are the source of any and all governmental power
• Limited government: government is not all-powerful and may only do the things the people have given it the power to do
• Rule of Law: the government and those who govern are bound by the law, as are those who are governed
• Democracy: a system of government where the people rule
• Representative government: the people elect public officeholders to make laws and conduct government on the people’s behalf.⁴

The US Constitution derives influences from all of the above fundamental political principles, and as such, those principles are to be extended to all persons underneath of the jurisdiction of the United States of America.

What are the Constitutional origins of Federal Indian law and policy?

The Constitution of the United States establishes the structures and responsibilities of the United States’ government. The final version (excluding amendments) was completed in September of 1787, and it is often understood to have solidified American nationhood. However, this narrative excludes the presence of the millions of indigenous people civilly living in what became the United States hundreds of years prior to Christopher Columbus. The United States Constitution, however, does acknowledge the presence of Indian nations in 1787, and this acknowledgement has borne the responsibility of shaping the constitutional origins of Federal Indian law and policy. Article 1, Section 8 of the Constitution, also known as the “commerce clause” reads as follows:

The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes…⁵

Although short in nature, the commerce clause of the Constitution is heavily loaded, particularly in relation to the development of Indian-related law. First, the definition of “commerce” begs assessment. While the present-day definition of commerce is as follows: “the activity of buying and selling,” a more dated definition lists commerce as meaning, “social dealings between people.” Thereby, Article 1, Section 8 not only gives Congress the power to oversee all financial transactions, but also all social dealings between itself and other recognized governments. Within Section 8, there are three recognized governments listed that Congress is given the power to preside over: foreign nations, the states, and Indian Tribes.

There is a deliberateness embedded in the distinction of Indian Tribes as non-foreign entities, and alongside statehood. It is in this division of governmental bodies that the United States Constitution offers its woolly definition of distinctions of tribal nations within the United States, and from where all Federal Indian law and policy seeps.

How did Andrew Jackson’s Indian Removal Act and John Marshall’s Indian Law Trilogy Shape Indian Tribal Lands?

Andrew Jackson

Andrew Jackson became the 7th President of the United States in 1829. He catalyzed the eventual constitutional debate surrounding tribal lands and the mass displacement of American Indians. However, even prior to tenure in the presidency, Andrew Jackson had a largely controversial relationship with the natives of the United States. Often referred to as ‘Sharp Knife’ by the Red Sticks people of the Creek Nation, Jackson implored John Quincy Adams to support removal of all American Indians east of the Mississippi River.⁶

As previously noted, once Jackson reached the presidency, he continued his assault on American Indians. The same year that Andrew Jackson became the presidential-elect of the United States (1828), gold was discovered in the hills of the state of Georgia. Understanding the history of Jackson’s disposition towards American Indians as both a former general, senator, and governor, the Georgian state legislature passed legislation that allowed acquisition of the gold. Jackson purposefully sat idly by while Georgians began a legislatively backed campaign of intimidation and persecution of the native Cherokee Nation in an attempt to encourage them to retreat from the land.⁷ Cherokees were banned from mining gold on their own lands, classified as colored free peoples prohibited from holding titles to property, and their acreage was inserted into a land lottery with the intention of redistribution to white Georgians. Jackson merely advocated for payment to Indians for the improvements they made to the land and their livestock, while warning that, “it would be worse… to refuse either option, because in that case the government would do nothing to prevent states from simply confiscating Indian lands.”⁸

It is understood that Jackson’s driving sentiment was that if American Indians were not “properly” utilizing their lands, then the American government was justified in confiscating those lands.⁹ The problem resided in the culturally different understandings of what constituted properly making use of land. However, he presented his advocacy of Indian removal publicly. In his first annual message to Congress, given on December 8th, 1829, for example, Jackson attempted to use humanitarian based dialect press upon the legislature the immediate necessity of Indian removal of all lands east of the Mississippi:

The condition and ulterior destiny of the Indian tribes within the limits of some of our States have become objects of much interest and importance. It has long been the policy of Government to introduce among them the arts of civilization, in the hope of gradually reclaiming them from a wandering life…

Our conduct toward these people is deeply interesting to our national character. Their present condition, contrasted with what they once were, makes a most powerful appeal to our sympathies. Our ancestors found them the uncontrolled possessors of these vast regions. By persuasion and force they have been made to retire from river to river and from mountain to mountain, until some of the tribes have become extinct and others have left but remnants to preserve for a while their once terrible names. Surrounded by the whites with their arts of civilization, which by destroying the resources of the savage doom him to weakness and decay, the fate of the Mohegan, the Narragansett, and the Delaware is fast overtaking the Choctaw, the Cherokee, and the Creek. That this fate surely awaits them if they remain within the limits of the States does not admit of a doubt. Humanity and national honor demand that every effort should be made to avert so great a calamity.¹⁰

Jackson placed their inability to be “civilized” in direct contrast to previous governmental attempts to assimilate them to white values. However, the tone of his words was geared towards giving the impression of having a deep concern for the well-being of Natives: “It has long been the policy of government to introduce among them the arts of civilization, in the hope of gradually reclaiming them from a wandering life.” He disregarded the fact that eastern Natives were not living a “wandering life,” because they were no more nomadic than he was.¹¹ Likewise, Jackson invoked previously decimated tribes like the Mohegan to give visual to the fate awaiting the tribes of the Southeast if there was no intervention taken on behalf of Congress. He continued to play on the savior complex of his listeners by questioning the humanity and national honor of any person who did not agree.

Most importantly, in his first Annual Speech made to Congress, he set his position for the future constitutional debate on whether Indians had claim to the lands he desired to move them from:

It is too late to inquire whether it was just in the United States to include them and their territory within the bounds of new States, whose limits they could control. That step cannot be retraced. A State cannot be dismembered by Congress or restricted in the exercise of her constitutional power.¹²

According to Jackson, the lands previously taken could not be given back, and it was counterproductive to harp on their acquisition. Likewise, once the bounds of a state were established, Congress was required to respect the exertion of powers as extended by the Constitution. Therefore, tribal nations residing within the bounds of a federally recognized state were given to the whims of the state legislature.

Jackson wasted no time pushing the agenda of Indian removal within his first Annual speech to Congress. He asked for the money needed to accomplish the uprooting of Indian tribes, and in 1830 would seek to have his plan approved by the federal legislature.

1830: Removal Act

Shortly after his First Annual Speech to Congress, the floor opened for debate on his proposed Indian Removal Act. The act was a bill to remove Indians east of the Mississippi River to west of the Mississippi River, under the guise that Indian nations were not independent of one another and the recently removed tribes would live in harmony separated from the oppressive influences of whites. In 1830, The Removal Act was passed by a small margin in both the House of Representatives and the Senate.¹³ With the allocation of $500,000 by Congress to help facilitate the transportation of native tribes west of the Mississippi, Andrew Jackson helped to usher in the most aggressive removal public policy of Indian removal to date.¹⁴

However, Jackson’s plan was met with serious opposition at the time of its proposal. American Indians, and their sympathizers, argued against the notion that it was for the best to uproot entire nations of people and transport them to an entirely new area. The lines drawn in the legislature were largely regional, as the vast majority of representatives who voted against the act came from north of the Mason-Dixon Line.¹⁵ However, the resistance of people like William Penn, an abolitionist, would largely fall on deaf ears as Jackson’s sympathizers were quick to assert that the removal of Indians would only happen on a voluntary basis:

Jackson’s supporters in Congress also assured doubters that the administration did not intend to force a single Indian to move against his or her will… Senator Robert Adams of Mississippi denied that the legislation Jackson requested would give the president any power “to drive those unfortunate present abode.” Indian relocation, the senator insisted, would remain “free and voluntary.”¹⁶

Ironically, there was no other way that Jackson and supporters of mass Indian removal could present their intentions. The actual provisions of the Indian Removal Act did not actually authorize the forced relocation of the Southeastern Indians, but instead asked for funding to continue to issue land west of the Mississippi to those Indians interested in releasing their tribal lands. At most, the Indian Removal Act permitted the president to exchange lands, not seize desired lands. Also, the act specifically included a clause stating, “Nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.”¹⁷ By continuing to lend a blind eye to the intimidation and harassment of American Indians by violent squatters on their lands, Jackson non-verbally signaled that he understood that any American Indians refusing removal would not have the full protection of state laws extended to them.¹⁸ History shows that Jackson, in a blatant abuse of presidential power, explicitly violated the legislation he fought to pass.

John Marshall’s Indian Policy

Understanding that Jackson’s public words did not match his private (or also public) ambitions and that the legislature had sided with his agenda, with the passage of the Indian Removal Act, American Indians could only turn to the Supreme Court for reprieve. Prior to the Jacksonian era, the Supreme Court, under the tutelage of Chief Justice John Marshall, had ruled on an Indian land title case (Johnson v. M’Intosh). In Marshall’s decision, he declared that Indian rights to create independent nations east of the Mississippi River had been extinguished, in an attempt to validate the United States’ government’s title over land in America.¹⁹ However, Marshall reluctantly issued this judgement, and when Cherokee Nation v. Georgia was brought before the court in resistance to the Indian Removal Act in 1831, all eyes were on the Supreme Court.

In his decision, Marshall described the case as the following:

“This bill is brought by the Cherokee nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.”²⁰

Marshall acknowledged the argument that the Cherokee nation feared that state laws, as issued by the state of Georgia, supported by the Indian Removal Act, and ignored by Andrew Jackson, were threatening their very existence. However, instead of ruling in the case, Marshall sidestepped the constitutional question of whether the state of Georgia can forcibly decimate the Cherokee Nation, and instead asked whether or not the Supreme Court had the jurisdiction to decide the case.²¹ Marshall questioned if the Cherokee Nation could bring forth the suit, given the classification of Indian nations as described by the Constitution: distinct from both foreign nations and states. Marshall ruled that the suit could not be considered because of that distinction, and clarifies the status of tribal nations within the United States:

They have been uniformly treated as a state from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts…. Yet, it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations… Their relationship to the United States resembles that of a ward to his guardian.²²

According to the General Principles of Federal Indian Law, the designation that Marshall bestowed upon Indian nations, “domestic dependent nations” must be broken down into varying layers. Tribes are considered domestic, because their lands exist within the United States, and are considered nations, because they have sovereignty over their members and other activities that affect them. The key word in Marshall’s decision is “dependent.” In declaring tribal nations dependent, Marshall subjected Natives to being the responsibility of the federal government, and thereby subject to the federal government’s power. This ruling set in motion the precedent for the relationship of Indian lands and the US federal government. Indian nations are regarded as domestic dependent nations subject to the power of the federal government, but their people have no representation in the government that they are subjected to. American Indians do not obtain citizenship status until 1924, and many states bar them from voting until as late as 1957.²³

In 1831, the saga of protest against the Indian Removal Act continued in the Supreme Court case Worcester v. Georgia. Upon being notified that the Cherokee Nation did not have jurisdiction to fight the forced removal of Indians within the United States’ court system, white allies of the tribes immediately filed suit on their behalf. Samuel Worcester, a U.S. citizen, sued the state of Georgia regarding a series of statutes that he claimed violated the U.S. Constitution, as well as other treaties formerly made with the Cherokee Nation. This time, Chief Justice John Marshall did not disappoint American Indian sympathizers, and issued a decision that concluded that Georgia did not have the jurisdiction to extend its oppressive laws over the Cherokee Nation. Finally, laws like those that prohibited Cherokees the ability to testify in court, but placed them at the whims of Georgia law, where they were the victims of “legalized theft of their property, brutalization of their persons, and intimidation…” were struck down.²⁴ All were laws created to drown out the Cherokee and other indigenous people in an effort to guide their acquiescence to giving up their lands to the white settlers President Jackson wanted to inhabit them instead.

The Cherokee nation, then is a distinct community occupying its own territory, with no boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.²⁵

Unfortunately, while Chief Justice John Marshall had interpreted the law of the Constitution to be on the side of its domestic dependent nations, it was the responsibility of President Andrew Jackson to execute that judgement. Marshall’s ruling on behalf of the Cherokee plight had regulated the conflict to one between the federal government and Georgia.²⁶ The state of Georgia ultimately ignored the judgement of Chief Justice John Marshall and continued with their attempts to harass American Indians to “voluntarily” cede their lands to the federal government as supported by the Indian Removal Act. Andrew Jackson at no point lifted a finger to force the state of Georgia to submit to the court’s decision.²⁷ As a result, more than sixty tribes were deported to lands west of the Mississippi, particularly settling in Oklahoma, over the course of several years.²⁸ The brutal removal process, most specifically the Trail of Tears, resulted in the genocide of several thousand Cherokee and other indigenous peoples.²⁹ Though posting a valiant resistance, American Indians ultimately lost the rights to their lands, and the precedent of abuse of presidential power in relation to dealing with Indian nations set by Andrew Jackson would continue to dictate federal dealings with tribes.