A Native American line island
While it could be claimed that it is enough to note that all decisions in this island involve Native Americans, we do not think this is sufficient. Having identified these decisions, we focus on the citation structure between them and their content. The citation network of the Court decisions in this co-cited line island are shown in Figure 6.5. Arcs are citations from later to earlier decisions. Decades are marked on the left to provide a sense of when decisions were made. These decisions cover more than 150 years and while they show many clear consistencies over this time span there are some departures from this consistency. Markedly different themes emerge when the content of decisions is considered.
Forced removal of Native American populations
All European colonial powers practiced the discovery doctrine: when they discovered new (to them) lands they claimed these lands as their own. The USA extended, and practiced, this internally to move Native American peoples off their traditional lands. The so-called 'Indian problem' was anything getting in the way of whites (mainly) appropriating lands and taking advantage of Native American populations. The term 'Indian matters' covered a wide variety of topics ranging from large to small. The former are easy to characterize: outright theft of Native American land either by treaty or legal constructions justifying the theft. The most infamous set of the consequences resulting from such land thefts became known as 'The Trail of Tears' after the Cherokee and Choctaw nations were moved forcibly from their lands to
Figure 6.5 Citation network within the Native American island.
a part of what is now Oklahoma. The Supreme Court decision of 1831, Cherokee Nation v. Georgia (30US1), stated it had no jurisdiction and permitted this eviction. It is the second earliest decision in Figure 6.5.
The Indian Removal Act of 1830 was a salient piece of legislations with multiple interpretations depending on the interests in play at the time. On the one hand, Georgian politicians and decision makers wanted to engage in ethnic cleansing: white settlers wanted these lands and campaigned for the removal of the Cherokee. At face value, they were successful in the passage of the Indian Removal Act which was upheld by the Court in 1831 and informed Cherokee Nation v. Georgia. A case can be made that while Congress and the Supreme Court authorized Andrew Jackson, as US president, to 'negotiate' with Native American leaders in the Southern United States for the removal of their nations to federal territories west of the Mississippi River11 it was also an attempt to curtail states' rights. Yet by asserting that it had no original jurisdiction in the matter because the Cherokee was a 'domestic dependent nation' - a term created in Marshall's opinion - the Supreme Court washed its hands of the Cherokee nation. Powe (2009) (80) quotes Jackson as stating "The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities.' In fairness, Jackson was dealing with a nullification crisis under which states claimed that they could nullify federal laws they did not like. In this context, the rights of the Cherokee, Choctaw, Seminole, Creek, and Chickasaw nations to their traditional lands were not worth expending political capital for Jackson. Despite the alleged conflict between federal interests and state's rights, the way was cleared for Georgia to start their ethnic cleansing with the assistance of federal troops.
-  Two decisions (411 US 145 and 411 US 164) are linked by an edge. This is a rare instance of decisions citing each other. They were decided 22 days apart by the same court. It is a rare example of local configurations inconsistent with the predominately acyclic nature of a citation network. See Chapter 3 for the methods used for dealing with this problem.
-  Over 25% of the people forcibly removed died during the Trail of Tears. For them, it was, literally, a death march.
-  Chief Justice John Marshall's opinion included 'the framers of our Constitution had not the Indian tribes in view when they opened the courts of the union to controversies between a State or the citizens thereof, and foreign states.'
-  This is still a live issue in the 21st century with Republican legislatures eager to nullify federal legislation enacted under President Obama.
-  The areas from which Native American were removed covered a large area of the south-eastern USA even though the Supreme Court decision pertained to Georgia.