Justice Breyer on the Cherokee Cases

Justice Breyer’s new book on constitutional law, Making Our Democracy Work, includes an entire chapter on the Cherokee cases. Justice Breyer long has invoked the plight of the Cherokees in talks he has given at various law schools and elsewhere.

Likely, the story of Worcester and the Cherokees is well known by the readers of this blog, and Justice Breyer’s rendition is largely accurate and respectful. He is certainly sympathetic to the Cherokees. ButJustice Breyer uses the Cherokee cases within the framework of his overall thesis in Making Our Democracy Work — the Cherokee cases serve as a warning to the modern Court about the limits of the Court’s power.

Readers of the book familiar with federal Indian law might scratch their heads wondering why the Cherokee cases are used in this way. If anything, federal Indian law post-1832 mostly has been used as a cudgel against the constitutional and property rights of Indian Country.

Justice Breyer utilizes the Cherokee cases (mostly Worcester v. Georgia) as an example of how the American public came to view the Supreme Court as an institution worth respecting and obeying. He notes that:

Following the law is a matter of custom, if habit, of widely shared understandings as to how those in government and members of the public should, and will, act when faced with a court decision they strongly dislike. [p. 23]

The Cherokee cases, for Justice Breyer, are an example of how, early in the Supreme Court’s history, its ability to enforce American law — “an early example of enforceability put to the test.” [p. 24]

Justice Breyer’s retelling is largely accurate, as I noted above. But it’s very possible he overestimated the “political weakness” of the Cherokees. [p. 25] Recall that the ultimate Senate move to ratifiy the treaty that sent the Cherokees west passed by only one vote. Moreover, modern histories suggest the Cherokees were far more economically stable than the State of Georgia — tellingly, the Cherokees were exporting food to the Georgians, and Georgia was easily the weakest and poorest of the original 13 states. I wish Justice Breyer had recognized that the reason Georgia was able to out-maneuver the Cherokees was its monopoly on violence, which it used to great effect to assert criminal jurisdiction over Samuel Worcester, to execute George Tassels (a Cherokee Indian prosecuted by Georgia under one of its unconstitutional laws asserting jurisdiction over Cherokee Indian Country), and to protect the non-Indian trespassers running roughshod over Cherokee property rights. The Georgians won because they were willing (literally) to kill and coerce property redistribution — and Congress and the President allowed it to happen.

If anything, the lesson from the Cherokee cases is that the Supreme Court had not yet arrived as a co-equal branch of government. But it’s there now. No one worth their beans would simply refuse to comply with a Supreme Court mandate.

But the concomitant lesson to the rest of the Court is perhaps that Indian nations have no way to object or resist the Supreme Court in its ongoing interpretation of tribal sovereignty. Tribes didn’t have the political power in 1832, and they don’t have the constitutional status now. The United States, states, and the American people are really the only entities that could put a stop to Supreme Court actions that go beyond the Court’s plausible authority. The Court, therefore, is free to do whatever it wants in Indian affairs, so long as it doesn’t upset the feds, the states, and the “people.”

That’s not such a good lesson.

2 thoughts on “Justice Breyer on the Cherokee Cases

  1. Lenor Scheffler October 7, 2010 / 1:28 pm

    Thanks for the heads up about the Breyer book and commentary. Another book titled What Kind of Nation (do not recall the author(s)) about Chief Justice Marshall provides yet more context for the time surrounding the Cherokee cases. Particularly the “strengthen of the U. S. Supreme Court as the third branch of the Federal Government” and states’ rights vs. federalism.

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