By David Kramer
Special to the Herald

The balance of power between the three branches of government is a means by which justice and liberty are upheld. When the balance of power is breached it often results in outcomes that serve to precipitate tragedy. One such case is the forced removal of the Cherokee from their home in Georgia to Oklahoma in what would subsequently become known as the Trail of Tears. From the onset the interactions between the young United States and the Cherokee nation were mostly positive. Unlike the other native American tribes first encountered by the settlers who founded Massachusetts and Virginia, the Cherokee were quick to adopt western customs and practices. The Cherokee it seems were open to being assimilated by the United States, but to their chagrin when they worked towards negotiations with their eastern neighbor they were met with a variety of states with different goals and policies. In most cases it seemed all that the states where the Cherokee resided next to wanted was their land and possessions. By the 1820s Georgia had begun to issue permits allowing settlers to squat on Cherokee land, and the Cherokee were unable to testify in court as to remove these trespassers. This means by which Cherokee land was redistributed stood against a supreme court ruling in favor of the Cherokee in Worcester v. Georgia. This supreme court ruling argued that the state of Georgia did not have the right to displace the Cherokee or other Native American tribes as only the federal government could make agreements with such entities. Andrew Jackson the president and head of the executive branch in 1832 when the decision in Worchester v. Georgia was reached challenged the verdict stating the chief justice John Marshal had made the decision now it was up to him to enforce it. The Executive’s refusal to enforce the Judiciary’s decision stood in contrast to the intentions of the constitution which states “The judicial power shall extend to all Cases, in Law and Equity arising under this Constitution”. In this instance law and equity were cast by the wayside. By allowing the state of Georgia to continue its program of displacing the Cherokee and issuing permits by which to justify this theft, Jackson failed to uphold the balance of power by reducing the effectiveness of the judiciary and the rule of law. The Georgia legislature had passed a series of laws abolishing the independent government of the Cherokee and extending state law over their territory around 1828, but it wasn’t until the Treaty of New Echota that the Cherokee were “legitimately” removed from their land.
This legitimacy arose from the power of Congress to pass laws and the senate by one vote decided to relocate the Cherokee in exchange for 5 million dollars. Although the treaty legitimized the relocation of the Cherokee, the clause stating that Cherokee who wished to remain would be entitled to 160 acres was ignored by president Martin Van Buren when the treaty went into effect in 1838. This once again saw the executive branch failing to enforce the terms brought about by the rule of law set up by the legislative and judiciary branches of government. This led to the untimely deaths of 4000 Cherokee while in transit between their homeland and Indian Territory who would have survived had they been offered their 160 acres of land east of the Mississippi. Unfortunately, this tragedy in which Cherokee land was stolen could have been avoided had the executive branch restrained Georgia and its “mandate” to take Cherokee land in the early 1830’s under Andrew Jackson, and had Martin Van Buren upheld the conditions specified in the Treaty of New Echota.

Works Cited

* Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier, Cambridge, MA: Harvard University Press, 2005.
* Perdue, Theda; Michael D. Green, The Cherokee Removal: A Brief History with Documents. ISBN 0-312-08658-X. 2004.
* Trail of Tears – Native American History – HISTORY.com”. History.com. Archived from the original on April 14, 2018. Retrieved April 17, 2018.
* U.S. Constitution. Article 3. Section 2.

The above essay was a winning entry in the city of Benicia’s Law Day contest.  The theme this year was “Separation of Powers.”

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