this point people think tribes are going to disappear and it’s cheaper
to make treaties than war, has 1802 treaty w/ fed gov’t, gold is
discovered, “five civilized tribes” were very successful in
assimilating, but then increasing threats, demands, and state rights.
Also, Marshall is dealing with threat of civil war and problems with the
court re enforceability and Jackson, President.
oCherokee files directly with SCt on Ct’s original j’dic over suits between states and foreign nations
oQ: (1) Legal authority to hear the case (2) turns on “Do Cherokees constitute a foreign state in the sense of the constitution?”
oA: The Cherokee nation is not a state, not a foreign nation, but instead a domestic dependent nation
§Note the dicta: “they have been uniformly treated as a state from the settlement of our country”
§“state of pupilage” . . . relation to united states resembles “a ward to his guardian”
§Article III § 8—Indian Commerce Clause-- Empowers Congress to “regulate commerce with foreign nations and among the several states and with the Indian tribes”
·textual argument, clearly perceived not as “Foreign nations”
§Separate foreign nations and Indian tribes are not the same
·Tribes need protection from fed gov’t
·Rely on fed “kindness and power”
·Appeal to fed for relief
·Report to president
·3 categories: states, nations, Indian tribes
oPowers lost: Power to freely convey their title and Power to act as a foreign nation, powers of foreign affairs
and feudatory states do not thereby cease to be sovereign and
independent states, so long as self government and sovereign and
independent authority is left in the administration of the state
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