The Trail of Tears

Finally Giving Cherokee Nation A Delegate In The House Is An Ethics No-Brainer

/ Jack Marshall / 11 Comments

The  treaty imposed on the Cherokee Nation in 1835 facilitated the Trail of Tears, and was the surest sign yet that the eventual fate of North America’s native population was going to be ugly, violent, and tragic. But the Treaty of New Echota, which forced the Cherokee to relinquish their ancestral lands in the South, also included the promise that the Cherokee Nation would be “entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same.” It is almost 200 years later, and Congress still hasn’t made such a provision.

Well, if we searched the Rationalization List for the excuse for this disgraceful betrayal, we would find several candidates on the very first page, mutations of the hoariest rationalization of all, #1, “Everybody Does It,” but represented by such variations of the theme as, It’s done all the time,”“It’s always been done this way,” “It’s tradition,” “Everybody is used to it,“Everybody accepts it,” and  “It’s too late to change now.” The United States broke too many treaties with the various tribes to count, but this one has an especially ugly story behind it.

On Georgia lands guaranteed by the United States to the Cherokee in yet another, earlier treaty, the tribe was attempting to create a model of what might have allowed all the Native American tribes to flourish in the new European-settled nation that was clearly not to be denied. The Cherokee Nation had foresworn war, was working with white communities, creating commerce and launching a hybrid culture that could be integrated into the U.S. while preserving Indian culture. The plan was working too— too well. Georgia exercised the then-current doctrine of nullification, a states rights principle holding that a state could nullify Federal law. The Georgian legislature wanted the Cherokees’ land, and declared the Federal treaty leaving it in their control null and void. The Cherokee sued Georgia in the U.S. Supreme Court and won. President Jackson, however, even though he had earlier condemned South Carolina’s nullification attempts in the strongest possible terms (Jackson threatened to hang Senator John C. Calhoun with his own hands), hated Indians. In an unprecedented demonstration of abuse of power and raw defiance by a President, “King Andy” refused to enforce the SCOTUS decision and backed Georgia. Continue reading →

The Supreme Court Holds The U.S. To A Promise

/ Jack Marshall / 15 Comments

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever…Because Congress has not said otherwise, we hold the government to its word.”

Thus did Justice Neil Gorsuch begin and end his historic 42-page majority opinion this month in McGirt v. Oklahoma, as the Supreme Court ruled  in a 5-4 decision that the Creek reservation in eastern Oklahoma had never been “disestablished” by Congress, and thus the promise made in a series of 18th Century treaties ensured that the territory remains an Indian reservation for the purposes of federal criminal law, and quite probably in other areas as well.

The decision was overshadowed by more politically debated decisions this month, but it may be the most overtly ethical of the Supreme Court’s recent holdings. Among other virtues, it rejects the false logic of Rationalization #52. The Underwood Maneuver, or “That’s in the past.” That one holds that time erases accountability, an attitude  useful to the habitually unethical, because “moving on” gives them  an opportunity to repeat their unethical and harmful conduct, or worse.

The Underwood Maneuver manipulates the victim of wrongful conduct into forgiving and forgetting without the essential contributions a truly reformed wrongdoer must make to the equation: admission of harm , acceptance of responsibility, remorse and regret, amends and compensation, and good reason to believe that the unethical conduct won’t be repeated.  By emphasizing that wrongdoing was in the past, this rationalization all but assures that it is also lurking in the near future.

Potentially half of Oklahoma will be affected by McGirt. The issue was whether the state of Oklahoma could prosecute Indians accused of major crimes in Indian Country, or if, under an 1885 federal statute known as the Major Crimes Act, such offenses were within federal jurisdiction. The case hinged upon whether the Creek Reservation had been withdrawn or disestablished, by Congress in the lead-up to Oklahoma’s admission to the Union in 1907, thus causing Hugh Jackman to sing.

This is 3 million acres in and around Tulsa we’re talking about here.

With the Court holding that the Creek reservation was never disestablished, four other tribes— the Seminole, Cherokee, Chickasaw and Choctaw Nations in eastern Oklahoma— may benefit from similar rulings. Those tribes’ total territory covers  19 million acres where 1.8 million Americans now live, relatively few of whom are Native Americans. Continue reading →