The U.S. government entered into 400+ treaties with the various Indian groups in the years from 1778 to 1871.
The latter was the year that Congress deemed the Indian beaten down enough to no longer require treating on an individual tribe basis. They could now begin dealing with them as an aggregate. Yet, for all their condescension, the lawmakers had freely entered into those legally binding agreements with the tribes. In fact, Article 6 of the U.S. Constitution declares that those agreements or treaties are “…the supreme law of the land”.
The Cherokee compacts were no exception. In the forty or so treaties between the United States and the Cherokee, the Federal government made promises and provided official signatures on paper that bound those two groups together legally. Unfortunately, the U.S. never intended to keep their end of the bargain. The treaties were just ways of gaining control of the Cherokee and, indeed, the rest of the Indian nations. War might have worked but would have been too expensive. Deceit was less so. Just an interesting point: Most of the Indian tribes were never conquered, as defined by the Law of Nations. They were simply deceived into submission.
The legal position on the Indian/U.S. agreements, as expressed by the Supreme Court, has been that those treaties are akin to, what is known as, adhesion contracts. Adhesion contracts are agreements which were unfairly negotiated. Because of ulterior motives, one side did not negotiate in good faith. The United States dealings with the Red Man fit that definition very well. Because of the way the treaties are viewed, the Judiciary has tended to lean in favor of the Indian.
Those same Courts and, interestingly, the Military hold that the treaties with the Indians, falsely obtained though they were, are still in effect, despite the fact that the U.S. has broken them many times. If that is truly the case, it is high time for some revision and re-interpretation of those old agreements.
Gardeners, as I have been, realize that, sooner or later, their garden plot must undergo reassessment. Pruning, digging up, burning, fertilizing, replacement; these are all strategies that may be required to bring the gardening endeavor back to its proper condition. The treaty between the U.S. and the Cherokee is just such an endeavor.
Much that is contained in those treaties is of no effect any longer. Issues such as dates for the tribe’s removal to the Western lands and how the Eastern and Western bands of Cherokee should get along are now irrelevant and should, probably, be removed. Many issues, represented by passages such as “… the Cherokee nation… shall, in no future time… be included within the territorial limits or jurisdiction of any State or Territory” have been disregarded or broken (actually, more like shattered) to the extent that they are not redeemable. On the other hand, some topics, like the protection of Cherokee rights, property and persons, need to be re-evaluated and strengthened.
In both the 1835 (Article 6) and 1866 (Article 26) treaties, there is a statement maintaining that “…they (the Cherokee) shall also be protected against interruption and intrusion from citizens of the United States”. In the days of the traditional Indian “reservation”, that phrase was interpreted to mean protection within the geographic boundaries of the tribe’s allotted territory. The idea was never really honored, except when it was convenient to either the State or the Federal. With that piece of history in mind and, considering today’s diminished importance of the reservation and the arising of groups such as the United Cherokee Nation of Indians-Aniyvwiya, who, by the way, do not have or accept any type of physical preserve, the point in question of “…protection against interruption and intrusion…” is discovered to be in need of redefinition. Without a geographical “home”, groups like the United Cherokee Nation of Indians-Aniyvwiya have a “reservation” that is more invested in ideals and endeavors.
Indeed, what the United Cherokee Nation of Indians-Aniyvwiya (and others) need is protection from the interruptive, intrusive and rapacious intents of both State and Federal agencies and their various misguided agents and employees while said Native groups are involved in their various activities and undertakings, wherever they might be. The First Americans need a different approach to keep the State and Federal off their necks.
Anyone who has ever been part of a Union that has had an adversarial relationship with a company understands that contracts are binding on both parties. A company’s lawyers will often remind the Union members of that fact by instituting an aggressive reading of the company’s rights under the agreement. In those situations, the very instrument designed to protect the Union membership is used against them. Treaties, in general and the Cherokee treaties, in specific, are no different. For any headway to be made, we must have success with an aggressive approach to the re-interpretation of the treaties that have, for so long, been used to control and afflict the Cherokee.
Truly it is time for just such a new understanding between the United States government and the Cherokee peoples, particularly the United Cherokee Nation of Indians-Aniyvwiya. We must find a way to bring the U.S. to a permanent and decidedly more appropriate interpretation of the agreements we have shared with them for well over 200 years.