Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations

NOTES

notes abbreviations asp:fr American State Papers: Foreign Relations asp:ia American State Papers: Indian Affairs asp:pl American State Papers: Public Lands ia:lt Indian Affairs: Laws and Treaties (Kappler) jcc Journals of the Continental Congress lcn Laws of the Cherokee Nation lr:cae Letters Received by the Office of Indian Affairs, Cherokee Agency East lr:cra Letters Received: Creek Agency lr:oia Letters Received by the Office of Indian Affairs, 1824–81 lr:sw Letters Received by Secretary of War Relating to Indian Affairs, 1800–1824 ls:oia Letters Sent by the Office of Indian Affairs, 1824–32 nasp:ia New American State Papers: Indian Affairs rp The Papers of Chief John Ross introduction 1. In using the phrase “peaceably and on reasonable terms” Ross was referring to the language of the Compact of 1802. The compact required the federal government to extinguish the Indian title in Georgia as soon as it could be “peaceably obtained, and on reasonable terms.” Carter, ed., Territorial Papers, vol. 5: 142–46; John Ross to Martin Van Buren, undated but around April 1838, rp, vol. 1: 634; Moulton, John Ross, 87–95; Woodward, The Cherokees, 198–204. 2. Mooney, History, Myths, and Sacred Formulas, 130; Moulton, John Ross, 95– 96. 3. John Ross Papers, Gilcrease Institute; Woodward, The Cherokees, 214. 4. Russell Thornton, “Cherokee Losses,” 289–300; Mooney, History, Myths, and Sacred Formulas, 130. 5. Norgren, Cherokee Cases, 35–48; Acts of the General Assembly, 20 December 1828, 19 December 1829, 11 December 1830, and 20 December 1830; Records of the States, Alabama, 223–25; Public Acts Passed, 10–12. 6. Andrew Jackson, Annual Message, Richardson, ed., Messages and Papers of the Presidents, vol. 2: 456–59; Prucha, Great Father, 191–208. 7. Norgren, Cherokee Cases, 53–60, 95–98; William Wirt to John Ross, 22 September 1830, rp, vol. 1: 199–200; Georgia v. Tassels; Augusta Chronicle, 29 December 1830; Georgia Messenger, 8 January 1831. 8. Cherokee Nation v. Georgia. Article 3 of the Constitution provides the Supreme 248 Notes to Pages 4–10 Court with the authority to hear “controversies . . . between a State, or the Citizens thereof, and foreign states, Citizens or Subjects.” 9. Acts of the General Assembly, 11 and 20 December 1830; Worcester v. Georgia ; Peters, Case of the Cherokee Nation; Norgren, Cherokee Cases, 117–22. 10. John Ross, “Public Letter to the Cherokees,” 14 April 1831, rp, vol. 2: 215– 19; Norgren, Cherokee Cases, 122–30; Andrew Jackson to John Coffee, 7 April 1832, Correspondence of Andrew Jackson, vol. 4: 430; Miles, “After John Marshall’s Decision.” 11. Georgia v. Tassels; Caldwell v. Alabama; Tennessee v. Forman. Most historians have simply never considered the logical import of the nonenforcement of the Worcester case on the concept of Native American sovereignty. Historians occasionally have alluded to Tassels in preliminary discussions of the Cherokee cases. However, the dramatic circumstances surrounding Tassel’s hanging have generally overawed the arguments produced by the state tribunal. There are also very few references to the Caldwell and Forman decisions in the scholarly literature. Vine Deloria Jr. excerpted portions of Caldwell in Of Utmost Good Faith, 7–37. Donald W. Large mentions Caldwell in “This Land Is Whose Land? Changing Concepts of Land as Property,” 1042. Forman is noted in the following books and articles: Virgil F. Carmichael, “The James Foreman Murder Case,” 1–17; Reid Peyton Chambers, “Judicial Enforcement of the Federal Trust Responsibility to Indians,” 1221 n. 42; Walter Chandler, Associate Justice John Catron, 8–9; James Franklin Corn, Red Clay and Rattlesnake Springs, 32–36; Edmund C. Gass, “The Constitutional Opinions of Justice John Catron,” 54–59; Timothy S. Huebner, Southern Judicial Tradition , 59–63; Thurman Wilkins, Cherokee Tragedy, 264. Sidney L. Harring raised the significance of Tassels, Caldwell, and Forman in Crow Dog’s Case. Harring’s brief discussion of the impact of the decisions on Native American tribal sovereignty inspired me to examine these southern state cases in detail. In this work, I have tried to expand on Harring’s analysis and place the southern decisions into the historical context of the Marshall tribal sovereignty line of cases. 12. Moulton, John Ross, 47; “Conference of Ross, Edward Gunter, and John Mason, Jr.,” 6 November 1837, Washington, D.C., rp, vol. 1: 537–40; Thurman Wilkins, Cherokee Tragedy, 264–90; Tennessee v. Forman. See also the John Catron Papers; Circuit Court Minutes, file box 245, Tennessee Supreme Court Records. For a discussion of the reasons why the...