The Application of the International Law of State Succession to the United States: A Reassessment of the Treaty between the Republic of Texas and the Cherokee Indians

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Perhaps no event in the modern era has been more profoundly consequential than the European "discovery" of the Americas.... Over a succession of generations, Europeans devised rules intended to justify the dispossession and subjugation of the native peoples.... Of these rules, the most fundamental were those governing the ownership of land. (1)

INTRODUCTION

In the eighteenth and early nineteenth centuries, long before the end of slavery, many American Indians (Indians) lost vast land holdings on the eastern coast of the United States. (2) For instance, consider the removal of the so-called "Five Civilized Tribes"--the Cherokee, Choctaw, Seminole, Chickasaw, and Muscogee--from the southeastern United States. (3) Professor Robert Clinton has analogized the removal of these indigenous peoples to the Nazi relocation of Jewish populations from all over Europe. (4) This analogy is appropriate, not only because the Indians lost their real and personal property, but also because many of them lost their lives. For example, an estimated four thousand Cherokees died from hunger, exposure, and disease in the well known "Trail of Tears," when President Andrew Jackson defied the Supreme Court and forced Cherokees to relocate to Indian Territory. (5) Such egregious acts of territorial expropriation did not cease in the nineteenth century, but have continued into the modern era. Tribes such as the Cayuga and Oneida of New York, and the Passamaquoddy and Penobscot of Maine have lost significant tribal land holdings in contemporary times. (6) In numerous cases, these property losses occurred via the unilateral acts of state governments, and often violated treaties that date back to the colonial period. (7) As a result, a plethora of Indian land claims have surfaced in recent decades, as Indians are granted standing to redress these wrongs. (8)

Yet, not all Indian land losses have achieved the notoriety of the removal of the Five Civilized Tribes. For instance, long before the Trail of Tears--in the year 1775--Judge Richard Henderson negotiated the "Transylvania purchase," which illegally deprived the Cherokees of a substantial amount of land in what is now Kentucky. (9) Although the state of Virginia eventually recognized the sale of this land was void under its preemption law, it did not return the land to the Cherokees; the state retained the land and retroactively designated Judge Henderson as the "state's purchasing agent." (10) This example is but one of many historical instances in which individual tribes were wrongfully dispossessed of their lands. Today, many of these same tribes dwindle on the edge of extinction--lacking federal or state recognition--as they struggle to maintain a cultural identity. One such tribe that repeatedly attempted to reclaim its lands and heritage is the Tsalagiyi Nvdagi (translated as "Cherokee in Texas"), (11) which settled in Texas territory around 1820. (12)

The Texas Cherokees (Cherokees or Tribe) spent nearly two decades living at peace in the region, under both the governments of Mexico and the Republic of Texas, before being driven from their homes and land by force in 1839, and losing their leadership in the process. (13) Over the next century and beyond, the Cherokees unsuccessfully tried to reorganize as a tribal entity and promulgate legal claims for their expropriated land. (14) Regrettably, their pursuits were unsuccessful. Nevertheless, the Cherokees remained unwavering in their quest to regain tribal sovereignty, and in August of 1993, a group met to reinstate the Tribe. (15) In the words of the elected Chief D.L. Utsidihi Hicks: "We who have come together to reinstate our tribe are very proud people. We will last as long as there is a drop of Ani-Tsalagi [Cherokee] blood left among us." (16) Without question, the Cherokees had a right to reconstitute their tribe for cultural preservation, but the question remains as to whether the Cherokees have a viable legal claim to the expropriated territory. …