AuthorBeermann, Jack M.


Every moment in human history can be characterized by someone as "socially and politically charged. "For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as "Jim Crow." The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and American Indians often turned to the federal courts for help, by and large, the Supreme Court of the United States turned them away, refusing their pleas for protection from the sources of their political and social difficulties. The law, as exemplified in Supreme Court decisions, carried on in politically and socially charged times as if nothing was the matter.


Every moment in human history can be characterized by someone as "socially and politically charged." Humanity careens from one existential crisis to the next, but only some crises are acknowledged by society's dominant forces. For example, the late 1780s were among the more politically and socially charged years in the United States. (1) Shays's Rebellion and other events exposed the defects in the Articles of Confederation that led to the framing of a new constitution designed to create a stronger and more self-sufficient central government. (2) At the same time, however, for approximately 20 percent of the country's population, those years were socially and politically charged for another reason: they were enslaved, treated by their country and masters as property, and subjected to the most serious violations of human rights known to man. (3) In addition to forced labor and no freedom of movement, they were subjected to physical and sexual violence, denial of educational opportunities, and destruction of their families and other social units. (4) And the voices of these nearly 700,000 Americans were not heard above perhaps a whisper at the convention that led to the creation of the United States of America as we now know it. (5)

The history of the United States has also been a period of social and political upheaval for another group of people occupying its territory, the American Indians. Socially, their most serious problem was initially death due to diseases brought to the continent by immigrants, which may have killed as many as 90 percent of the native population in the period after white settlement. (6) Those left alive were conquered by European immigrants who virtually destroyed their political and social structures. (7) The conquerors repeatedly violated and disavowed treaties and other promises that they had made with the vanquished nations. (8) Sometimes the government of the United States rescued the American Indians from dire straits, while, at other times, it put them there and left them to their collective fate. (9)

After the end of slavery and the quieting of the direct attack on the social and political structures of the American Indians, things were better. But still, the American people were involved in ongoing crises. For decades after the end of slavery, the federal government was unwilling to recognize the rights of African Americans or force the states to respect those rights that had been put down on paper after the end of the Civil War. (10) And the federal government's treatment of American Indians has continued to be marked by cruelty and mismanagement. (11)

This Article is about how the Supreme Court of the United States reacted to these socially and politically charged periods for African Americans and American Indians, with the primary focus on the situation of African Americans during the post-Reconstruction period. This was a period when African Americans looked to the federal courts for protection from Jim Crow legislation that threatened to place them in a situation nearly as unequal and demeaning as slavery. As we shall see, by and large, the Court reinforced the dominant social forces' determination not to recognize the one long social and political crisis that constituted the late nineteenth century for these millions of Americans. (12) Certainly, the Justices were aware of the world around them, and yet their decisions contributed to the crises, adding to the misery that millions of Americans were suffering at the hands of the federal and state governments. While, of course, the Civil War and everything surrounding it was recognized as a series of political and social crises, the Court appeared unconcerned with the interests of anyone outside the white, dominant political and social establishment. (13) The law, as exemplified in Supreme Court decisions, failed to react as if it was operating in politically and socially charged times. (14) Mostly, it carried on as if nothing was the matter.

Perhaps that is the intended message--in politically and socially charged times, the Court will be a force of stability, helping to quell challenges to existing power structures, even if it requires ignoring suffering and injustice. Those rare occasions when the Court steps in to protect nondominant social groups may occur only when it appears that even greater instability and damage to dominant interests would result if it did not. It is, of course, true that during at least part of the twentieth century the Court assumed a leading role in championing the rights of African Americans, both in explicitly racial cases and in other cases in which the human, social, and political rights of African Americans were threatened. (15) This may be partly due to an accident of history when, for the first time, the Supreme Court was occupied by a majority of relatively liberal Justices. (16) Even then, American Indians continued to fare poorly in the Supreme Court, perhaps because nothing that might be done to them would seriously threaten the stability of the country as a whole. (17)


    In the limited space available, I could not possibly do justice to the history of the mistreatment of the American Indians by the European immigrants to North America, the government of the United States, and its Supreme Court. There is no question that European settlement of North America was and continues to be a great tragedy for the people who were here before them. There are a few cases that will illustrate the treatment of American Indians sufficiently without going into great detail. (18) The point is that while these people suffered social upheaval and political crises, the Supreme Court of the United States was of no value to them and actually aided and abetted their oppression. (19)

    In 1785 and 1786, the Government of the United States, the Cherokee Nation, and the Choctaw and Chickasaw Nations entered into a series of treaties known as the Hopewell Treaties, named for the Hopewell Plantation in South Carolina where they were signed."" These treaties were later supplemented by the Treaty of Holston and several additional treaties, with additional agreements being made as late as 1819. (21) These treaties established boundaries between lands controlled by the United States and lands controlled by the Cherokee people. (22)

    In 1831, the Cherokee Nation brought a bill in the original jurisdiction of the Supreme Court of the United States, seeking to restrain the State of Georgia from enforcing Georgia law in Cherokee territory and seizing Cherokee land in violation of the treaty obligations of the United States. (23) The Constitution grants federal courts jurisdiction over "[controversies ... between a State ... and foreign States" and in cases "in which a State shall be Party" the Constitution places original jurisdiction in the Supreme Court. (24) Thus, the Court's jurisdiction over the cases depended on whether the Cherokee Nation was a foreign state.

    To this question, the Supreme Court answered in the negative, declaring that the American Indian tribes, while possessing a degree of sovereignty over their lands within the borders of the United States, are best characterized as "domestic dependent nations." (25) The Supreme Court thus could not hear this dispute, a dispute that was vital to the continued existence of the Cherokee Nation and which turned on the effects of treaties entered into between the Cherokees and the U.S. government. (26) As we shall see, the key point for present purposes is this: the Court could not hear the case because the Cherokee Nation was not considered a foreign state. (27) This determination did not necessarily mean that in a proper case, the Supreme Court would not enforce the treaties that granted the Cherokee Nation a degree of autonomy over their lands. (28) But it did mean that American Indian tribes would not be considered foreign nations by the courts of the United States.

    Although the Supreme Court enforced the Cherokee Nation's power over its reservation in a subsequent case, (29) the Court later analogized the American Indian tribes to foreign nations when confronted with congressional abrogation of treaty obligations that resulted in the loss of millions of dollars worth of tribal lands. (30) In 1867, the United States entered into The Medicine Lodge Treaty, recognizing control over certain lands by the Kiowa and Comanche Tribes and creating a reservation for their benefit. (31) Later, the Apache tribe also became a signatory to the treaty. (32) Article twelve of that treaty provided that no subsequent treaty could provide for the alienation of reservation land without the signatures of threequarters of...

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