Wednesday, November 30, 2011

The Day of "Talking Leaves"

On November 28, 1785, the United States and the Cherokee People entered into the aptly titled Treaty of Hopewell.  In exchange for "protection" from the nascent United States, the Cherokee agreed to release prisoners.  The treaty also set the boundary lines between the two nations and acknowledged, indirectly, that each shall have independent jurisdiction over their land.  More out of hope than reality, the treaty concluded with the following proclamation, "The hatchet shall be forever buried, and the peace given by the United States, and friendship re-established between the said states on the one part, and all the Cherokees on the other, shall be universal; and the contracting parties shall use their utmost endeavors to maintain the peace given as aforesaid, and friendship re-established." (see text of treaty)
Historical marker at Hopewell

As many know, "jurisdiction" is a two-edged sword.  Forty-three years later, Georgia passed a series of laws to expel the Cherokee from the "historical boundaries" of Georgia.  In response, the Cherokee Nation filed an original action with the Supreme Court of the United States asking the Court to enjoin the enforcement of Georgia's laws on the grounds that the laws violated the U.S. Constitution and prior treaties, namely Hopewell and Holston. Cherokee Nation v. Georgia, 30 U.S. 1 (1832).
Chief Justice John Marshall

Art. III Sec. II of the U.S. Constitution gives the Supreme Court original jurisdiction over disputes between a state and foreign states.  There lies the rub.  Chief Justice Marshall asked whether the Cherokee Nation is a "foreign state" as the term was used in the "constitution."  The answer...  "No."  The Cherokee Nation, albeit a nation that was foreign, was deemed a different type of entity altogether.  Cherokee Nation v. Georgia declared the Cherokee to be a type of sub-nation, dependent on the United States.  Cherokee, 30 U.S. at 26-27 ("They may more correctly perhaps be denominated domestic dependent nations.").  The Treaty of Hopewell and Holston, despite using the word "treaty" were mere contracts, distinct from a treaty with a proper nation such as France.

As far as the intentions of the framers of the Constitution, Marshall had this to say:
At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the union.  Cherokee, 30 U.S. at 34.

1 comment:

  1. The phrase "Talking Leaves" was coined by the Cherokee as a description of "treaties" with the United States. When the desires of the United States change, the treaties will blow away like talking leaves.