Abstract

When representatives of the Cherokee nation went to the US Supreme Court in 1831 to sue the state of Georgia, they initiated a paradoxical endeavor. They argued that they were a “foreign state,” but subjected themselves at the same time to the jurisdiction of the court of another state. In the course of this campaign, they transformed themselves from a political to a legal subject and took the position of what today would be called an “indigenous” community. The court translated the paradoxical formation of indigeneity—being legally incorporated and excluded at the same time—into the legal text of the judgment by inventing the contradictory phrase “domestic dependent nation.” Analyzing as an autoethnographic text the bill that the Cherokee nation presented to the Supreme Court, this essay investigates how the Cherokee’s indigeneity was produced in their interaction with the legal field of the (post)colonial state and how the paradoxical roots of indigeneity can serve as a starting point from which to rethink the native-settler relationship and the indigenous condition.

Introduction

On 5 March 1831, the US Supreme Court began to hear the case Cherokee Nation v. Georgia.1 Today, it is regarded as one of the most important landmark cases in federal Indian law and is part of the famous “Marshall trilogy” in which Chief Justice John Marshall developed the basic legal principles governing the relationship between the United States and the native communities.2 The case resembles in many ways contemporary indigenous rights cases. It was the first time an Indian nation brought a case before the Supreme Court. It can serve, therefore, as a precedent-setting example of how the phenomenon of indigeneity took shape and continues to take shape in legal spaces, and how it is inextricably bound up with legal doctrine. In this context, I use the term indigenous as an analytical category to describe a certain identity formation that is based on a specific legal relationship that a native community has established with the (post)colonial settler state.3

The word indigenous was not used to describe Indian tribes at the time the Cherokee went before the Supreme Court. Prior to the 1970s, the term was more or less confined to biology, used to refer to plants or animals native to a particular place. Since then, various rights movements have introduced the term into international legal forums such as the United Nations, the International Labour Organization, and the Inter-American system for the protection of human rights (Anaya 2004: 49–96; Engle 2010: 46–140).4 Since its introduction into international law circles, indigenous has come to be used as an umbrella term that encompasses such categories as Indian, native, and aboriginal; it is now the most frequently used term inside and outside international law to signify communities whose ancestors inhabited territories in precolonial times. Recent scholarship (particularly in anthropology) has shown, however, that indigenous is not only a legal category but also an analytical term used to signify a certain type of collective identity and a designation used by Indian activists to refer to themselves and their collective attachment to their communities (Niezen 2003: 1–5; Kauanui 2008: 25–32; Clifford 2013: 15–21; Simpson 2014: 1–35).5

For analytical purposes, however, I find it worthwhile to bear in mind the legal origins that have brought the term to the fore and to use indigenous as a category that has emerged out of the legal encounter of a native community and a (post)colonial legal system. Because of its close connection to legalities, I believe the concept of indigeneity has an analytical focus that is markedly different from other terms signifying collective identity processes that emerged in the late eighteenth and early nineteenth centuries, such as pan-Indianism (Evans Dowd 1992) as a religiously oriented nativist project, Cherokee nationalism (Denson 2004) as a project of establishing and asserting certain political discourses, and Cherokee blood politics as a project of identity construction around ideas of blood, color, and race (Sturm 2002). To be sure, the phenomena described by these other terms are also important for understanding the legalities that were created to accommodate the highly unequal coexistence of natives and settlers. However, I argue here that thinking through these relations specifically from the dogmatics and logics of the law opens up a perspective from which to reconceptualize some of the debates on native-settler relations. Therefore, even though the term indigenous would not have been used by the Cherokee themselves or other commentators at the time, I have chosen to use it in this context because, as an analytical concept, it captures better than other terms the intersection of law, culture, and politics.

At the center of this article is the bill the Cherokee nation sent to the Supreme Court. Not only does it contain a line of argumentation to justify a claim against the state of Georgia, but it can also be read as an attempt to explain to the settler community how the Cherokee saw themselves as a nation. I argue that the Bill of the Cherokee Nation is an autoethnographic text, defined by Pratt (1991: 35) as a text “in which people undertake to describe themselves in ways that engage with representations others have made of them.” Although understandable to the settler state in style, genre, argumentation, and discursive vocabulary, it is also to some degree a story different from the “official” (meaning “EuroAmerican”) version of people and events. Autoethnographic texts are prototypical products of indigeneity discourses, especially when they are as directly connected to the legal field as this one is. Anthropological scholarship has proposed that we understand the strategies that bring about indigeneity as articulations, performances, and translations (Clifford 2013: 13–49). These terms and their theoretical implications indicate that the one who articulates, performs, and translates is inextricably entangled with the one to whom such articulations, performances, and translations are addressed. In other words, indigenous articulations, performances, and translations are as dependent on the expectations of nonindigenous audiences—on what they are willing and able to hear—as on what the indigenous community wants to say.

Based on my reading of the Cherokee nation’s bill to the Supreme Court, I argue that a native community becomes indigenous the moment it enters into a paradoxical relationship with the legal regime of the settler state. The relationship between the indigenous community and the (post) colonial legal system is paradoxical because the native community occupies a legal position in which it is at the same time incorporated into and exempt from the (post)colonial law. This is what happened in the Cherokee Nation v. Georgia judgment. Through my reading of the case, I will try to flesh out how this paradoxical nature of indigeneity became inscribed into the legal text and to indicate how the idea of the indigenous paradox might affect the way we think about native-settler relations.

From Political to Legal Subjectivity: The Cherokee’s Change in Strategy

Cherokee Nation v. Georgia arose in the midst of a crisis between the Cherokee and the state of Georgia that began long before the case was filed. The Cherokee nation had signed its first treaty with the United States, the Treaty of Hopewell, in 1785.6 In this treaty, the union recognized the legal status of the Cherokee’s homeland, which was situated within the boundaries of the state of Georgia. The state, however, was unhappy with this arrangement because it had no jurisdiction over Cherokee territory and was, therefore, not allowed either to tax the land and its residents or to permit its citizens to settle in the area (Strickland 2011: 64).

Despite pressure from Georgia to remove the Cherokee from their territory, the union honored the treaty for more than four decades. The political climate changed at the end of the 1820s, however, when Andrew Jackson—who would later become infamous for his brutal anti-Indian policies—was elected president (for the US Indian policies in the Jacksonian era, see Remini 2001; Rogin 1975; Satz 1975). On 28 May 1830, Congress passed, on Jackson’s initiative, the Indian Removal Act that authorized the federal government to set aside lands west of the Mississippi for the large-scale resettlement of Indians and provided for the funds necessary to realize the project. Jackson would later go far beyond the measures authorized in the Indian Removal Act, to the point of expelling Indian nations from their homelands by military force (Cave 2003: 1331–32).

In the course of this change in policy, the conflict between Georgia and the Cherokee escalated. White Georgians began to settle illegally in Cherokee country, a practice that intensified after gold was found in the region in 1828 (Pratt 2016: 183–84). In reaction to this intrusion, the Cherokee reformed their political and legal system, a process that included passing a constitution structurally similar to that of the United States and establishing a court system, replete with a Supreme Court of the Cherokee Nation. These reforms were directed at underscoring Cherokee sovereignty over their territory. Georgia, however, followed the legal argument that the union treaties were not binding on the individual states because of the states’ distinct sovereignty and that, therefore, Cherokee country was a part of Georgia. In 1828 and 1829, Georgia reacted to the Cherokee legal reforms by enacting laws claiming jurisdiction over Cherokee lands, allowing its citizens to settle there, declaring all Cherokee laws null and void, and implementing other measures such as not allowing Cherokee individuals to testify as witnesses before state courts (Strickland 1986: 720).

Before this escalation in the conflict between Georgia and the Cherokee in the late 1820s, representatives of the Cherokee had deployed an intergovernmental approach in their dealings with the United States. They always emphasized that the Cherokee, as a sovereign nation, stood legally on an equal footing with the United States, and that the treaties had been made between sovereign governments (Peters 1831: 5–7). After Jackson came to office, the federal government effectively refused to abide by the treaties and to enforce the Cherokee’s treaty rights against Georgia (Hershberger 1999: 16). In reaction, Cherokee activists and intellectuals—those members of the Cherokee elite who were actively involved in treaty making and in advancing the project of a sovereign Cherokee nation (Denson 2004: 12)—began not merely to address the US government from the outside, as a sovereign, independent nation would do, but also to engage in the internal political processes of the United States by addressing Congress and trying to lobby for the rejection of the Indian Removal Act (Hershberger 1999: 25). The strategy was an attempt to forestall westward removal and stop the dangerous political shift toward anti-Indian policies that was taking place at the federal level, but it was already to some degree inconsistent with the Cherokee’s self-description as a sovereign nation because it put the Cherokee nation in a situation where it acted more as a political pressure group inside the United States than as a foreign actor. In the end, the Cherokee’s lobbying efforts proved unsuccessful, and Congress, despite considerable opposition, passed the Indian Removal Act.

In a last-ditch effort to assert their treaty rights against Georgia, some among the Cherokee elite, led by John Ross, the principal chief of the Cherokee nation, set their sights on the US Supreme Court. Part of their legal strategy was to hire the highly respected William Wirt, who had been attorney general of the United States in the Monroe and Adams administrations, to represent them. Wirt and some members of the educated Cherokee elite clearly took on the role of legal “translators” (Merry 2006: 210–12), framing the Cherokee’s legal submissions to the Supreme Court in terms that would make sense to and resonate with the nonnative audience. Wirt’s prominence and the formidable public relations strategy of the Cherokee officials transformed the trial into a highly visible media event (Strickland 2011: 70). Congress took a recess expressly to allow its members to follow the proceedings in Washington, and the Supreme Court’s reporter of decisions Richard Peters (1831) edited a special volume that included—in addition to the judgment itself—the Bill of the Cherokee Nation, the oral arguments of the Cherokee’s attorneys, and some appendixes.7

From a legal perspective, the Cherokee’s most difficult obstacle was to establish the jurisdiction of the Supreme Court. Article 3, section 2, of the US Constitution enumerates the kinds of disputes that can be adjudicated by the Supreme Court. They extend to “controversies . . . between a state or the citizens thereof, and foreign states, citizens or subjects.” The controversy was between the state of Georgia and the Cherokee nation. To be under the jurisdiction of the Supreme Court, the Cherokee therefore had to establish that their nation qualified as a “foreign state” in the sense of the provision. And that was exactly how the Cherokee presented themselves and how they filed their injunction.

On the surface, the outcome of the case was a disappointment. The court found the Cherokee nation not to be a foreign state and therefore decided that it could not adjudicate the case (Peters 1831: 164). But the decision, which was delivered by six justices at the time, was a two-two-two split (Strickland 2010: 71). Two justices found the Cherokee nation not to be a state at all and therefore denied jurisdiction altogether. On the other end of the spectrum, two justices found that the Cherokee nation qualified as a foreign state in the full sense of the term and wanted to adjudicate the case. Two justices, including Chief Justice Marshall, took a middle position. They found that the Cherokee nation qualified as a “state,” but not as a “foreign state” in the sense of Article 3, section 2, of the Constitution. They were, from the perspective of US law, neither a foreign state nor an entity regularly incorporated into the US legal system. The term Marshall coined for this was “domestic dependent nation.” This compromise ultimately became the cornerstone of the concept of tribal sovereignty that still governs federal Indian law to this day.

The Supreme Court case Worcester v. Georgia, decided in the following year, finally brought a legal victory for the Cherokee. In this case, it was not the Cherokee nation in the role of complainant, but the missionary Samuel Worcester, who had been sent to jail by a Georgia state court on the basis of Georgian laws enforced on Cherokee territory. In this case, the court decided in favor of Cherokee sovereignty, ruling that Georgia had no jurisdiction over Cherokee country.8

In the course of the conflict with Georgia and the federal government, the Cherokee’s political strategy had been transformed from an intergovernmental approach to an ever-closer engagement in the internal affairs of the United States, first by lobbying in Congress and finally by becoming a complainant before the US Supreme Court. As the Cherokee lost power as a sovereign political subject, they pushed toward becoming a subject of US law—first, by receiving favorable legislation from Congress and, finally, by winning a fair judgment from the Supreme Court. But while seeking the help of a “foreign” legal system, they also portrayed themselves in the strongest terms as being subject to no laws but their own.

Inscribing the Indigenous Paradox into US Law

The Bill of the Cherokee Nation to the Supreme Court begins as follows:

Respectfully complaining, show unto your honours, the Cherokee nation of Indians, a foreign state, not owing allegiance to the United States, nor to any state of this union, nor to any other prince, potentate, or state, other than their own: That, from time immemorial, the Cherokee nation have composed a sovereign and independent state, and in this character have been repeatedly recognized, and still stand recognized by the United States, in the various treaties subsisting between their nation and the United States. That, long before the first approach of the white men of Europe to the western continent, the Cherokee nation were the occupants and owners of the territory on which they now reside; deriving their title from the Great Spirit, who is the common father of the human family, and to whom the earth belongs. That on this territory they and their ancestors, composing the Cherokee nation, have ever been, and still are, the sole and exclusive masters, and governed, of right, by no other laws, usages and customs, but such as they have themselves thought proper to ordain and appoint. (Peters 1831: 3, emphasis added)

The authors of the bill—presumably Wirt and those members of the Cherokee elite with whom he worked—presented the Cherokee right at the outset as a sovereign nation not subject to any law they did not enact themselves. This autoethnographic articulation of national independence contrasts with their factual behavior: going to a US court to seek the invocation of US law. The indigenous articulations contained in the bill, although deviating from mainstream legal discourse in many points, are highly dependent on what the nonindigenous audience is able to understand and relate to. Nonindigenous expectations are as important as indigenous discourses for the way indigeneity is articulated. What the indigenous articulation must achieve in the end, however, is to stabilize the paradox of being independent while still guaranteeing that the indigenous nation can rely on the (post)colonial legal system to protect and enforce that independence.

Immediately following this evocative introduction, the bill puts forward a history of the EuroAmerican colonists’ acquisition of land on the American continent. The story had been told in the framework of the Supreme Court before, most famously in the landmark decision Johnson v. McIntosh,9 but this time it is the Indians who tell it from their perspective. In 1732, King George II, a “monarch of several islands on the eastern Coast of the Atlantic,” granted to his subjects lands that were “occupied and owned by several distinct, sovereign, and independent nations of Indians, and among others, by the Cherokee nation” (Peters 1831: 4). This Royal Grant was based on nothing more than the fact that “a ship manned by his subjects had, about two centuries and a half before, sailed along the coast of the western hemisphere, from the fifty-sixth to the thirty-eighth degree of north latitude, and looked upon the face of that coast without even landing on any part of it” (3–4). Consequently, the Cherokee bill dismissed the settlers’ “wild and chimerical title by discovery” (5). But even if such title existed, it would be the Cherokee who could rightfully base a land claim on it, “for they had discovered and occupied it long before the first European ship had ventured to cross the Atlantic ocean” (5). The time of the Cherokee’s original discovery and settlement was “buried in the night of ages beyond the era of Christianity, and probably far beyond the period when the British islands, themselves the residence of heathen savages and barbarians, became a prey to a heathen conqueror from Rome” (4).

But after this strong and self-assured opening salvo, the authors of the bill acknowledge that the government of the United States had, in their treaties with the Cherokee, shown “an ardent desire . . . to lead the Cherokees to a greater degree of civilization” (Peters 1831: 5). In this desire, the United States had engaged in a policy that linked the Cherokee’s right to stay on their territory to their society’s progress toward a higher level of “civilization.” Mainstream Anglo-American property theory at that time was heavily influenced by John Locke’s political philosophy, which equates civilization with certain forms of appropriating nature through labor (Banner 2005: 157–58; Williams 1990: 246–50). In the framework of this property theory, Cherokee land rights were only to be recognized by the United States if the Cherokee used their land “properly,” meaning agriculturally. The bill does not argue against this theory of law or this way of conceptualizing civilization. On the contrary, the Cherokee take the United States at its word and direct the court’s attention to the progress the Cherokee nation has already made to civilize itself. In other words, if “civilization” is what it was going to take to be recognized as a sovereign nation, that is what the Cherokee are willing to implement:

They have established a constitution and form of government, the leading features of which they have borrowed from that of the United States; dividing their government into three separate departments, legislative, executive and judicial. . . . They have formed a code of laws, civil and criminal, adapted to their situation; have erected courts to expound and apply those laws, and organized an executive to carry them into effect. . . . They have abandoned the hunter state, and become agriculturists, mechanics, and herdsmen; and, under provocations long continued and hard to be borne, they have observed, with fidelity, all their engagements by treaty with the United States (Peters 1831: 11).

It is striking how the establishment of the Cherokee legal system, with features so similar to that of the United States, is especially highlighted. The aim of the Cherokee is to establish that they are a legal person in international law—a sovereign state. To that end, they had to qualify as “civilized” in a EuroAmerican fashion. Indigenous articulations are inherently contradictory. Ultimately, the tension between the claim to sovereignty and independence and the claim nevertheless to have rights that are established through and protected by a foreign legal system remains unresolvable.

The bill’s autoethnographic representation of the Cherokee is heavily oriented toward the nonindigenous audience in the Supreme Court. The bill does not express opposition to the two major projects of an assimilationist policy—civilization and Christianization—despite the fact that these are directed against their indigenous distinctiveness and potentially endanger the sovereignty on which they base their land claims. Norgren (2004: 38) has proposed calling this kind of strategy “controlled acculturation.” As fitting as this term seems to be, I believe it does not fully characterize the strategy of indigeneity. Indigeneity is not about staying firm on territorial sovereignty and compromising on the cultural front through “controlled acculturation” in order to gain room to maneuver. I argue, rather, that indigeneity must always signal both similarity to and dissimilarity from the settler community. The concrete shape of this similarity and dissimilarity shifts when power imbalances shift. The Cherokee’s insistence on the legal enforcement of their territorial sovereignty by the US court system and their own controlled Christianization and civilization were part of one and the same strategy; one step could not have been taken without the other.

Historically specific power relations limit the scope of indigenous expressions and thus the number of promising strategies, thereby shaping the very content and meaning of indigeneity as presented by the native communities themselves. But the paradoxical core of indigeneity remains. After laying out the Cherokee’s complaints against Georgia, their legal arguments, and how all their attempts to resolve the question with the federal government in the intergovernmental framework had failed, the bill concludes:

Under these circumstances your honours cannot but see that, unless you shall interpose for their protection, these complainants have before them no alternatives but these: either to surrender their lands in exchange for others in the western wilds of this continent, which would be to seal, at once, the doom of their civilization, Christianity, and national existence; or to surrender their national sovereignty, their property, rights and liberties, guarantied as these now are by so many treaties, to the rapacity and injustice of the state of Georgia; or to arm themselves in defence of these sacred rights, and fall, sword in hand, on the graves of their fathers. (Peters 1831: 28, emphasis added)

What the claimants describe as their three alternatives to going to court—fleeing their territory, giving up their sovereignty to the aggressor Georgia, or going to war—are the only established options for a foreign nation in an international conflict. But the Cherokee did not want to pursue any of these options, so they formulated a paradoxical claim in order to introduce another logic: they wanted the Supreme Court to enforce the law of the land by suspending it. The court should restore the legal autonomy of the Cherokee nation in relation to the state of Georgia by deciding that federal law not only precluded the enactment of state law but also allowed the law of another entity (the Cherokee nation’s) to govern the land.

The Cherokee’s bill was answered by the judgment of the court. Chief Justice John Marshall took the opportunity to elaborate generally on the legal status of American Indians and to transform the case into a general precedent. Marshall showed his sympathy for the Cherokee’s claim in the very first sentences of the decision:

If courts were permitted to indulge their sympathies, a case better calculated to excite them could scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary for their comfortable subsistence. To preserve this remnant, the present application is made. (Peters 1831: 159)

But, after these preliminary remarks, Marshall immediately came to the key question of jurisdiction. According to article 3, section 2, of the Constitution, a “foreign state” may bring a case before the Supreme Court against one of the states of the union. Marshall split the question into two: is the Cherokee nation a state, and is it also a foreign state? Of the fact that the Cherokee are a state Marshall was convinced. The Cherokee nation had been “completely successful” in proving that it was “a distinct political society, separated from others, capable of managing its own affairs and governing itself” (Peters 1831: 160). But Marshall argued that the Cherokee were not a foreign state: “The condition of the Indians in relation to the United States is perhaps unlike that of any other people in existence. . . . The relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else” (160). Marshall explained these peculiarities: “The Indian territory is admitted to compose a part of the United States” (161), as the Supreme Court had already established in Johnson v. McIntosh. Consequently, the native nations “are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens” (161).

In the very same treaties the Cherokee had cited for their ongoing sovereignty, they also accepted this jurisdictional dependence (albeit limited) on the United States: “They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper” (Peters 1831: 161). Marshall then concludes with the most frequently cited passage of the judgment:

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. (Peters 1831: 161, emphasis added)

The phrase “domestic dependent nation” has several important aspects. First, the word “nation” acknowledges the sovereign character of the Cherokees. Second, the indigenous nations are also in some way “dependent” on the sovereignty of the United States. Third, the Indians are “domestic,” not “foreign,” in the sense of the constitutional provision in question.

The passage is usually read as a prominent example of the legal discrimination against American Indians in the United States, with the analogy to the ward-guardian relationship emblematic of the patronizing attitude typical of American-Indian relations in the nineteenth century. For the purposes of this analysis, however, I would like to highlight another aspect. The melding of these partially contradictory terms into one central phrase of the judgment marks the very moment when what I call the “indigenous paradox” is inscribed into law. “Domestic dependent nation” semantically incorporates the paradoxical structure of indigeneity: the Cherokee are foreign and domestic, sovereign and dependent, at the same time. I contend that it is precisely this paradoxical position that enables indigenous rights claims in the first place: it opens a legal space in which national law is suspended and indigenous law can play out.

As already indicated, the decision was not unanimous. Marshall’s solution—that the Cherokee were a state, just not a foreign one—was a compromise. On the other two ends were justices who believed that the Cherokee were not only a state but also a foreign state, and justices who believed that the Cherokee were not a state at all.

Among the latter was Justice William Johnson, who put his view in the form of a dissenting opinion. In his reasoning the Cherokee, if they had ever been a sovereign nation, had lost their sovereignty completely in the course of the colonization of North America (a view, by the way, that was never a majority opinion in the Supreme Court). Johnson analyzes the treaties and consequently summarizes: “This is certainly the language of sovereigns and conquerors and not the address of equals to equals, . . . the language of concession on our part not theirs” (Peters 1831: 167). With discovery, according to Johnson, full territorial sovereignty had been transferred to the discoverer. There was none left for the indigenous nations.

However, Johnson further elaborates on the question of what would happen if the court had found that the Cherokee were indeed a “foreign state.” He argues that even if the Supreme Court assumed jurisdiction over the Cherokee’s claim as a foreign nation, the case would be “one of a political character altogether, and wholly unfit of the cognizance of a judicial tribunal” as he could not fathom a view of the subject “in which a court of justice can make jurisdiction of the questions made in the bill” (Peters 1831: 172). Johnson was alluding to the so-called political question doctrine, which allows the US Supreme Court to avoid entertaining or deciding on those cases involving political issues, as those are more appropriately resolved by the political branches of government (Green 2005: 723).

If the Cherokee saw themselves as a foreign state and Georgia violently imposed its laws on them, Johnson argued, the situation would effectively characterize a state of war. The questions arising would be highly political and not for the judiciary to decide:

Either the Cherokee nation are a foreign state, or they are not. If they are not, then they cannot come here [to the Supreme Court]; and if they are then how can we extend our jurisdiction into their country? . . . But suppose that Georgia should claim to be put in possession of the whole Indian country; and we should decide in her favor; how is that decree to be carried into effect? (Peters 1831: 174)

Johnson made a crucial point here: the paradoxical structure of indigeneity demands that the indigenous claimant must be similar and dissimilar. Being recognized as a “foreign state” by the national courts would lead to the very consequences Johnson described: the indigenous community’s claim could not be entertained by the court because the claim would be outside the scope of the laws governing its decision. Being “too foreign” cannot accommodate the indigenous paradox, just as being “too similar” cannot. As a foreign state, the Cherokee would be too far away to call on the help of the court. But if they were completely incorporated into US law, they could also not defend themselves against legal intrusions into their country on the basis of sovereignty and legal autonomy. They somehow had to be both, and that is what they became: a “domestic dependent nation.”

When Cherokee Nation v. Georgia was over, the Cherokee had been transformed from a foreign state into a domestic dependent nation—in analytical terms, they had become indigenous. They presented themselves as a nation, a holder of sovereignty, as well as a domestic legal person subject to the US court system. When indigenous nations in the Americas and elsewhere encountered settler legal systems, they were typically incorporated into and excluded from these legal systems. This combination of exclusion and incorporation both discriminates against the autonomy of indigenous peoples and opens up legal spaces for the exercise of their autonomy.

The fact that the case was ultimately dismissed should not lead to the conclusion that the attempt had failed. In Worcester v. Georgia, the succeeding Cherokee case, the nation gained a historic victory before the judiciary. Georgia’s intrusive laws were deemed void by the Supreme Court because Georgia had no jurisdiction in Cherokee territory. In the end, however, political realities overtook the decision of the Supreme Court. The decision provoked a tangible constitutional crisis in the United States, in the course of which Georgia refused to implement the Supreme Court decision and the federal government declined to force the state to do so (Strickland and Strickland 1994: 114). President Andrew Jackson purportedly said, “Marshall has made his judgment, now let him enforce it” (Chroust 1960: 76).

The decision did not put a stop to Jackson’s removal policy, nor could it prevent the Cherokee’s “trail of tears”—their removal to what is today Oklahoma, one of the cruelest chapters in US Indian policies (Perdue and Green 1995; Perdue 2007; Smithers 2015; Sturgis 2007). The doctrinal principles the Supreme Court developed for indigenous rights in the United States, however, went far beyond the Cherokee’s struggle against removal. They provided a more solid basis for the idea that indigenous peoples had retained international sovereignty in the course of colonization, an argument that continues to inspire indigenous rights movements and their strategies to the present day.

The Indigenous Paradox and Its Implications for Interpreting Native-Settler Relations

Contributions to the ethnohistorical literature on the law and politics of native-settler relations can be situated somewhere on a spectrum (perhaps the same spectrum that forms much of the entire social science endeavor) that has structure at one end and agency at the other. Scholars tend either to explore the structural determinants of the native encounter with settlers or to focus on the native communities’ agency in these encounters. In either case, one tries to explain and describe the historical processes and how they have played out. Of the recent studies that have addressed Cherokee historiography, some have focused more on how the Cherokee have been structured by settler legal orders (e.g., Ford 2010). Others have described how the Cherokee have constructed their identity with reference to culture and nation while simultaneously embracing and challenging settler institutions and legal orders (Miles 2005; Smithers 2015), and how the idea of Cherokee sovereignty was actively constructed by Cherokee actors (Denson 2004), yet was still to a certain degree based on precolonial conceptions (Boulware 2011). As a general rule, one should be skeptical of approaches that seem to lose sight of one or the other end of the spectrum. Whether one gives primacy to structure or to agency, the other may well matter more than one thinks. However, structure and agency do not necessarily function as mutually exclusive opposites. I argue that the paradoxical legal origins of indigeneity remind us that indigenous politics have been successful insofar as they have been able to bring to the fore discourses (not least legal discourses) that enable them to mobilize structure in the service of their agency.

I see many of the contributions that situate themselves in the analytical framework of settler colonial studies (Veracini 2010; Bateman and Pilkington 2011; Mikdashi 2013) as being overly concerned with the structure end of the structure-agency spectrum. This is openly acknowledged in Patrick Wolfe’s (1999: 2) oft-cited remark that settler colonialism is a structure rather than an event. In that view, the native-settler relationship is to a large extent determined by a colonial project that is directed at the “elimination of the native” (Wolfe 2006: 387). Lisa Ford (2010) has recently written an important book in that tradition of thought, with specific reference to the Cherokee. In her study of the legalities of the native-settler encounter in North America and Australia, Ford argues that one instrument of settler colonialism was the introduction of “perfect settler sovereignty” (183). She contends that, at the turn of the nineteenth century in the course of settler colonial ambitions, a legal pluralism encompassing both the natives’ law and the settlers’ law became unacceptable. She tells the story of the settler state extending criminal jurisdiction over indigenous territory to illustrate that “settler sovereignty could not tolerate indigenous self-government” (5), asserting that native communities became in-lawed by the settler legal system and that “the legal obliteration of indigenous customary law became the litmus test of settler statehood” (2).

Ford (2010: 1–12) makes an important point when she argues that the harshest intrusions by the US legal system into Indian sovereignty occurred in the field of criminal jurisdiction. And indeed, the cases she mobilizes to illustrate this process can be seen as a counterpoint to the Marshall cases—including Cherokee Nation v. Georgia—in which Indian legal autonomy is invoked. However, as I have argued above, the legal definition of the Cherokee as a “domestic dependent nation” illustrates that the US legal system never fully abandoned the practices and principles of legal pluralism. Ford’s interpretation underestimates the paradoxical nature of the indigenous condition inscribed into the law. If instituting perfect settler sovereignty is a precondition for the settler colonial project (and I would argue that it is not), then the United States has not yet managed to achieve it. I contend that the question of indigenous and native sovereignty was not fully resolved in the early nineteenth century; in fact, it has still not been fully resolved. The indigenous paradox lives on.10

Some scholars have focused on highlighting this very elusive ambivalence that is intrinsic to native-settler relations in North America and elsewhere by situating themselves more on the agency side of the spectrum. Most prominently, Richard White (1992) has talked about a “middle ground” that indigenous communities were able to establish through their diplomacy, thus opening up important aspects of indigenous agency. However, on this point I am on Lisa Ford’s side when she remarks that studies that focus on Indian diplomacy (such as White’s) may neglect the interface between indigenous and settler legal practices (Ford 2010: 8) and hence overestimate indigenous agency.11 It is true that White’s concept of the middle ground has often been overstretched in the literature, in the course of which it has been watered down and does not always include White’s nuanced description of the complex unequal power relations between natives and settlers (Deloria 2006: 115). However, these perhaps reductionist readings may have been, in a way, suggested by the metaphor of the “middle ground,” which evokes the mental image of two struggling entities compromising and meeting somewhere in the middle. It is not only the protagonists of the settler colonial studies described above who would argue that things are more complicated than that.

Is there a way out of this never-ending struggle to locate native-settler relations at some point on the structure-agency spectrum? The short answer is: probably not. But it also might not hurt to find concepts that help us remain conscious of the precarious position of all analyses of native-settler relations that stake a claim on the basis of their positioning within this spectrum. Kevin Bruyneel (2007), for instance, has contributed an important reformulation of indigenous activism not as a struggle for autonomy from the settler state, but as a question of the boundaries of the settler state itself. Inspired by approaches from postcolonial studies, particularly that of Homi Bhabha, as well as border studies literature, Bruyneel thinks of indigenous movements as the attempt to occupy a “third space of sovereignty” (xvii). From the perspective of political history, his argument offers a very fruitful approach to understanding the condition of indigeneity itself and its origins in (post)colonial legalities.

However, from the perspective of the legal concepts I have described here as the indigenous paradox, I question whether spatial metaphors such as “middle ground” or “third space” are always appropriate to “think with” when it comes to indigeneity. I argue that indigeneity is not so much about native communities making a place for themselves but, quite the contrary, about not making a place for themselves. Indigenous communities, in the way I have tried to describe them here, not only challenge the borders that settler colonial states impose on them, as Bruyneel argues (which, of course, they do), but they also—paradoxically—derive their room to maneuver precisely from the fact that they occupy two places at once and no fixed place at all in the legal landscape.

This also has consequences for how we think about the Marshall cases specifically. There is a consensus in the literature that the Marshall cases provide an important legal basis for inscribing the inequality of native-settler relations into the US legal system. Consequently, Williams (2005: 33–46) has argued that the Marshall cases should be overturned because they are based on racist assumptions of native savagery. Pommersheim (2009, 295–312), who regards the Marshall judgments as unconstitutional not least because of the logical inconsistencies I have described here, argues for constitutional amendments to legally secure the status of Indian tribes. I believe that such calls for legal reform are more than justified if one considers the ongoing blatant intrusions into tribal autonomy that are still sanctioned by the US legal system. If Indian tribes were fully constitutionally incorporated into the legal structure of the United States, there might be more respect for tribal autonomy. However, they would, from the definition I have put forward in this text, not be indigenous anymore. They might gain a great deal, but they would also lose their specific paradoxical nonposition that contains the—admittedly often unrealizable—potential of introducing rights that the settlers’ legal system does not grant. While for indigenous communities the possibility of realizing their sovereignty is “only” limited by power and inequality, the autonomy of communities fully incorporated into the (post)colonial legal system is further limited by a legal system not of their own making. Whether that kind of incorporation would bring advantages or disadvantages cannot be determined on the basis of theory. It is an empirical question the answer to which will always depend on the concrete power relations that pertain at a certain time and in a specific place. It might, however, be prudent to bear in mind that every legal engagement, no matter how beneficial it might be, always comes with a price tag.

Conclusions

One central endeavor of ethnohistory is to understand how native communities change and are changed by colonial and postcolonial relations of power, often in juridical form. I have argued here for rethinking indigeneity along the lines of the specific arrangements native communities are able to reach within the settler legal system in which they are incorporated and from which they are excluded at the same time. I suggest that the idea of the paradox is useful for thinking not only about Cherokee historiography but also about the law and politics of native-settler relations more generally. If indigenous communities manage to use the indigenous paradox produced by the rule of law of the settler state, they can open up at least some room for maneuver. Thus, the term domestic dependent nation, born in Cherokee Nation v. Georgia in all its paradoxical glory, is simultaneously a tool for legal discrimination and an opportunity for resistance against it.

The Cherokee, however, paid a price for this legal wiggle room. They had to subjugate themselves to the legal system of the United States, the “courts of the conqueror,” as Chief Justice Marshall consciously expressed it in Johnson v. McIntosh.12 Their approach was a paradoxical strategy that had its roots in the paradoxical reality of American Indians. They were sovereign states in North America, but the newcomers by the nineteenth century outnumbered them by far. As was true since the seventeenth century, dealing with the settlers in one way or another was inevitable. The Supreme Court had indicated from the beginning that the newly emerged state, the United States, which claimed the Indians’ territory, was not prepared to disregard Indian rights completely, but was only willing to accommodate those rights on the United States’ terms. The US courts were available for a certain degree of protection, but only when the Cherokee abided by the courts’ rules. The alternative would have been complete legal defenselessness. The Cherokee took a chance on the US court system, which would ultimately grant them protection, but only under paradoxical conditions: they had to be subject to US law and be sovereign at the same time. In other words, they had to become indigenous.

This article would not have been possible without the generous support of the Rosa Luxemburg Foundation, Berlin, Germany. Thanks to an exchange scholarship between the Rheinische Friedrich-Wilhelms-Universität Bonn and the University of Wisconsin–Madison, I was able to spend eleven months at the Department of Anthropology in Madison, where many of the ideas put forth in this text emerged in conversations with colleagues there. A travel grant from the German Ancient America Foundation (Deutsche Altamerika-Stiftung) enabled me to present a paper on this topic at the Annual Meeting of the American Society of Ethnohistory in Las Vegas, Nevada, in 2015. Many people have given important feedback on drafts of this text or contributed with discussions and ideas to its development. I would especially like to thank Leonie Benker, Tamar Blickstein, Brian Donahoe, Timo Duile, Antje Gunsenheimer, Christian Mader, Sirin Knecht, Larry Nesper, Karoline Noack, Žiga Podgornik-Jakil, Sabine Sielke, and the organizers and participants of the Current Issues in North American Studies Lecture Series at the Rheinische Friedrich-Wilhelms-Universität Bonn, who invited me to present some of the research findings reflected in this text. Finally, I would like to thank the editors of Ethnohistory for facilitating a rewarding editing process, especially Robbie Ethridge for her thoughtful editorial comments.

Notes

1

Cherokee Nation v. the State of Georgia, 30 U.S. 1, 1831.

2

The three cases that make up the Marshall trilogy are Johnson v. McIntosh, 21 U.S. 543 (1823), Cherokee Nation v. Georgia 30 U.S. 1 (1831), and Worcester v. Georgia 31 U.S. 515 (1832).

3

I use the descriptor (post)colonial to indicate that the Cherokees’ (and other native communities’) contact and then entanglement with the legal system of another sovereign started with a colonial legal system (in British colonial times) and was continued and extended with a postcolonial legal system (after the end of British colonial rule with the United States of America). From the perspective of the native communities, the end of British rule certainly did not mean the end of colonial power relations. Although there were some continuities, the legal relationship with the British and then later with the Americans was doubtless a change in both style and content.

4

One of the most cited definitions in this regard is the one that José Martínez Cobo, who acted as UN Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, elaborated in his report Study of the Problem of Discrimination against Indigenous Populations (the “Cobo Report”): “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems” (Martínez Cobo 1986: para. 379).

5

An illustrative theoretical discussion of the anthropological debates on indigeneity is provided by Zenker (2011), who discusses the term in a conceptual dialogue with nationalism and autochtony.

6

Treaty with the Cherokee, 28 Nov. 1785, 7 Stat. 18.

7

I take all quotations from Cherokee Nation v. Georgia from Peters’s (1831) edition of the court documents.

8

Worcester v. Georgia 31 U.S. 515 (1832): 515–21.

9

Johnson and Graham’s Lessee v. William McIntosh, 21 U.S. 543, 1823.

10

One most recent examples of the conflicts arising from ongoing legal pluralism is the Cherokee Freedmen controversy that reveals the tensions arising from competing rights regimes, namely civil rights and tribal sovereignty, see, e.g., Sturm 2014.

11

In the same context, Ford criticizes this strand of literature, noting that it focuses too much on the Cherokee cases and too little on the criminal jurisdiction cases she investigates. That may very well be. However, I believe that it is equally important not to forget the Cherokee cases, as they keep one mindful of the fact that, contrary to Ford’s contention, legal pluralism was not fully eroded.

12

Johnson v. McIntosh, 21 U.S. 543 (1823): 588.

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