However, I believe that it is the responsibility of lawyers to advise their clients both as to the state of the law and where the law should possibly be going. Typically, agencies consult with Tribes because they must: Consultation is required by Executive Orders and statutes, and the Federal government cannot diminish tribal treaty rights.
Consultation is a means for actualizing the Federal trust doctrine. But what is the Federal trust doctrine? When there are hard and fast guidelines as to what is required by or involved in the trust doctrine, understanding is relatively easy. The most confusing task is understanding what the doctrine is without those hard and fast guidelines.
Andrew Jackson was President. The states felt that they did not have to comply with Federal mandates or proclamations. It passed a series of statutes imposing Georgia law on Cherokee lands. President Jackson supported these actions, as he had the passage of the Indian Removal Act of William Wirt was the foremost expert on Indian affairs at the time. Knowing that he would not get anywhere in State court, Wirt argued that the Supreme Court had original jurisdiction to hear this case because the Tribe was a separate sovereign nation.
The State did not appear, being confident that it need not acquiesce to Supreme Court orders. In a opinion, the Supreme Court held that the Cherokee Nation was not a state or a foreign nation, and that the Court therefore did not have original jurisdiction and could not hear the case.. This doctrine underlies the notion that that Congress can abrogate treaty rights without consultation of the tribes. A group of missionaries entered Cherokee lands in violation of State laws. The case was heard in Georgia State court, which found the group guilty.
Worcester, who was one of the convicted missionaires, appealed to the United States Supreme Court, basing his case upon treaties and arguing that Cherokee land was tribal land, protected by sovereignty. The Supreme Court held that Tribes are separate and distinct political communities; they are sovereign over the lands they retained; treaties were made in order to allow Tribes to retain their culture, sovereignty, reserved homelands, and the right to govern themselves; and that Tribes retain everything that they did not expressly give up.
In return for land cessations, Tribes bargained for protection. The United States gave Tribes a solemn pledge to protect them and what they retained from encroachment or diminishment. But protection against what? At this specific time in history, it was settlers, physical intrusion. Today, the protection is against a different set of threats: environmental and other threats to tribal land and resources, burials, and traditional cultural practices.
These issues must be considered when agencies make decisions that may affect tribes. Wirt writes of being in the employ of the Cherokee Nation by June 4, Moulton, Papers of Chief John Ross Evarts's biographer reports meetings between the Cherokee delegation in Washington, Evarts, and Wirt May 27 and 29, Tracy, Jeremiah Evarts , and They spoke during final voting on the Removal Bill. Presumably Wirt was hired officially as soon as Jackson signed the legislation. McCulloch v. Maryland , 4 Wheat.
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Virginia , 6 Wheat. Woodward , 4 Wheat. Ogden , 9 Wheat. Kutler , Stanley , ed. All subsequent quotes in this paragraph are from this letter. On microfilm, Library of Congress, Reel Wirt to Ross, June 4, The first brief is available under its title Baltimore, Md.
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Lucas, Jr. Kennedy, William Wirt , Wirt had been appointed United States attorney general in by Monroe and had remained in that position for twelve years until Jackson forced him to resign in The Marshall Court had earlier expressed its understanding of Indian title in Fletcher v.
Peck , 10 U. In the third of his opinions commissioned by the Cherokee, Wirt was faced with the implications of his acceptance of discovery doctrine. He had been asked by his client to tell them whether Georgia could rightfully claim title to a sixty-mile-wide swath of land ceded to the Cherokee in an agreement between themselves and the Creek but claimed by Georgia as the result of a treaty between the Creek and the United States. If tribal title was only one of occupancy under the law of discovery, then even tribes might well have been denied the right to cede land to one another.
Wirt skirted this critical question, however, by asserting that the cession to the Cherokee had subsequently been accepted by the United States President, and by the Senate. Wirt to Gov. George R. Gilmer, June 4, Wirt presumably thought Georgia would resist a Section 25 case by failing to create a record necessary for the writ of error because of the course of action pursued by Virginia in Martin v. Hunter's Lessee , 1 Wheat.
Cherokee Nation v. Georgia :: 30 U.S. 1 () :: Justia US Supreme Court Center
Wirt's cautiousness is very well expressed in a later letter to Judge Carr, September 29, Wirt to Ross, August 9, Ross to Evarts, July 24, Wirt to Ross, September 22, Playing along with Georgia, Jackson had argued that, with Georgia's new laws, there no longer was a Cherokee Nation, or treasury, to which to deliver the annuities. He intended, therefore, to distribute them on an individual basis to each Cherokee citizen.
Jackson knew that this would deprive the Cherokee of revenues needed for political and legal expenses. To augment their legal defense fund, the Cherokee sent speakers to northeastern cities to raise funds. Most of the fees that were paid in , however, came from money borrowed on the credit of the Cherokee Nation. See, for example, Ross to Wirt, January 1, Wirt to James Madison, Oct. Underscoring in original. Wirt to Thomas Swain, October 4, , ibid. Wirt wrote that Chief Ross had responded by writing that the Cherokee had explored the proposed western lands, found them unfit for agriculture and surrounded by savage tribes who would engage the Cherokee in warfare.
Wirt to Madison, October 5, , ibid. In the letter to Swain, Wirt also rejects charges of conflict of interest arising from his legal work in a Florida land case involving a Seminole grant of land to private individuals. He repeats this in a letter to his son-in-law, Judge Randall in Florida. Wirt to Randall, Oct.
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Wirt to Ross, September 22, According to a letter from Cherokee delegate W. Sergeant Papers, Box 4, File 2. In this letter, he writes that Sergeant concurs with him that the Court has jurisdiction. Perhaps Sergeant had changed his mind after the Corn Tassel case failed. Ross to Governor Gilmer December 20, , ibid.
Cherokee Nation v. Georgia, 30 U.S. 1 (1831)
For the report to Wirt on serving notice, see Ross to Wirt, January 1, , ibid. Wirt to Ross, November 15, , ibid. See State v. George Tassels , 1 Dud. For an excellent discussion of the content and implications of the decision for nineteenth-century federalism, see Harring, Crow Dog's Case , Niles Daily Register , January 8, , pp. Section 25 of the Judiciary Act of permitted review of state court decisions by writ of error. This sum is noted in a ledger submitted in a fee claims request by the firm under the terms of the Treaty of New Echota.
Sidney L. Harring points out that the Georgia appeals court decision was often cited by state courts during the mid-nineteenth century to uphold the proposition that states had sovereignty over tribes within their boundaries. Over one hundred years passed before Georgia abandoned the State v. Tassels doctrine. Harring, Crow Dog's Case , chap.
A description of Wirt in court is found in an undated clipping from the Sentinel contained in the William Wirt Papers, Maryland Historical Society, reel Commentary on the state of his health at this time is found in a letter from Wirt to his family, March 12, , and one from Catherine Wirt to her mother, March 14, For the readiest source outlining the argument, see Kurland , Philip B.
Also, Peters , R. Cherokee Nation , 30 U. Therefore, in an unusual move, after the court had risen, Marshall had urged Justices Thompson and Story to write a dissent that would balance the record. Thompson obliged with an opinion that drew heavily upon the arguments made by Wirt and Sergeant, which was subsequently published by the court reporter. Ross to the Cherokees, April 14, Letters solicited by the governor of Georgia from local whites describe Ross's tour and the reactions of Cherokee in different regions to the Supreme Court's decision.
Ross to Harris, April 27, Ross to wirt, May 10, Wirt to Ross, July 18, Evarts to Worcester, February 1, Missionary work received partial funding from the federal government. In addition, Worcester was postmaster at New Echota. The law specifically exempted federal agents. Green to Wirt, July 12, Hubbard to Win, Sept. These letters also indicate close supervision of Wirt by the American Board, which had retained him with a hundred-dollar fee.
State v. Missionaries Gwinnett County Superior Ct. Worcester's analysis of why several of the missionaries accepted a pardon is contained in a letter to Evarts, May 31, , ibid. Worcester did not yet know that Evarts had died on May For the next few months, the Cherokee Nation and the American Board both contributed to legal costs. Coody to Wirt, January 1, , ibid. Niles Weekly Register , December 24, , p.
Oral argument in Worcester proceeded on February 20, 21, and 23, See untitled and undated manuscript at the Historical Society of Pennsylvania, Sergeant Papers, box 5: file Records and Briefs of the U.