The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?

By Louis Filler; Allen Guttmann | Go to book overview

Smith Thompson:


THE CHEROKEE NATION VS. THE STATE OF GEORGIA: DISSENTING OPINION

Although Justices William Johnson and Henry Baldwin concurred with Marshall, Justice Thompson dissented, and was joined in his dissent by Justice Story. Thompson, who wrote the dissenting opinion, was a Jeffersonian who had left the New York Supreme Court (on which he served from 1802 to 1818) in order to become President Monroe's Secretary of the Navy. Although he was an Associate Justice of the Supreme Court from 1823, Thompson angered the Jacksonians by running against Van Buren for the governorship of New York. He frequently disagreed with Marshall's opinions. Justice Joseph Story, who concurred with Thompson, was, on the other hand, Marshall's closest associate on the court; Story's concurrence with Thompson is thought by some historians to have influenced Marshall's opinion in the case of Worcester vs. Georgia.

IT is a rule which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent states or nations those powers, that are recognized as such by the executive and legislative departments of the government; they being more particularly entrusted with our foreign relations. . . . If we look to the whole course of treatment by this country of the Indians, from the year 1775, to the present day, when dealing with them in their aggregate capacity as nations or tribes, and regarding the mode and manner in which all negotiations have been carried on and concluded with them; the conclusion appears to me irresistible, that they have been regarded, by the executive and legislative branches of the government, not only as sovereign and independent, but as foreign nations or tribes, not within the jurisdiction nor under the government of the states within which they were located. . . . Other departments of the government, whose right it is to decide what powers shall be recognized as sovereign and independent nations, have treated [the Cherokee Nation] as such. They have considered it competent, in its political and national capacity, to enter into contracts of the most solemn

____________________
Smith Thompson, "The Cherokee Nation vs. The State of Georgia," from Peters Reports, V, 59-80.

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