Hi there. My name is Sofa, and I research American Indian land claims, among other things. I can’t make any statements about such a case being brought to an extranational court, but I can tell you what the Cherokee chances of success would be if it were brought against the United States in U.S. courts. So, would the Cherokee have a chance of success in federal court?
My initial answer to the question is, “probably not.”
I base this authoritative answer upon the following:
[ul]
[li] The Cherokee signed a number of treaties with the United States, in 1791, 1794, 1798, 1804, 1805, 1806, 1816, 1848, 1866, and 1868. This according to Kappler’s Indian Affairs, Vol. II: Treaties. I’m not going to look at all of those treaties to check, but the general pattern works like this: the purpose of most treaties is to equitably cede land held by a tribe to the United States, sometimes in compensation for land elsewhere, sometimes for other things. Generally, there is no statute of limitations on treaties, which is why they are still important today. But, if the United States has failed to keep up its end of the treaty, it is not required to return any ceded land. Instead, it must meet its end of the bargain, hopefully with interest. We can assume most Cherokee lands were conveyed by treaty.[/li]
[li] Sometimes treaties were conducted in bad faith. Tribes were sometimes (in my experience, always) inadequately compensated for the land they conveyed to the U.S. In about 1948 or so, Harry Truman set up an administrative court called the Indian Claims Commission. The ICC’s mission was to address all tribal claims against illegaly alienated land, improperly compensated land, and many other similar violations. Tribes again were not entitled to the return of any land conveyed. Instead they were paid large sums of money in return for releasing their claim to the land. The ICC decided cases for over thirty years before it was eventually packed up. Looking at my Index to the Decisions of the Indian Claims Commission, which only goes to 1973, I see that no less than seventeen opinions were issued by the ICC regarding various bands of Cherokee claims. That probably means that most of the treaty loose ends have since been tied off. We can assume title to most Cherokee lands not conveyed by treaty was extinguished before the ICC.[/li]
[li] There are still plenty of Indian land claims out there. Today, by far the most popular sort of claims are based on the 1790 Indian Non-Intercourse Act. In a nutshell, the Non-Intercourse Act states that land held in trust for an Indian tribe by the United States (what we usually call “reservation” or “reserved title” land) cannot be conveyed except by the express approval of Congress. Ever. [/li]
The Oneida case cited above is one of the classic examples. Officials from New York state went up to Oneida and impersonated federal agents. They told the Oneida that if they didn’t sign these (fake) treaties, they’d have trouble. The Oneida signed over a lot of land to New York. But the United States didn’t approve the deal, so the deal in essence never happened according to explicit law, and that fact cannot be subverted by statute of limitations, squatter’s rights, laches, adverse possession or anything else, period. That’s why the Oneida can quite rightly sue people living on that alienated reservation land today. They are suing the residents, by the way, because even though the Supreme Court told New York to pay up big bucks in return for an official cession of title by the Oneidas and the United States, the state refuses to pay. The lawsuit was intended to get the state off its ass, but it isn’t working, which just goes to show that being right in America ain’t worth jack shit without the muscle to back it up.
But the important thing about Non-Intercourse claims is that they usually involve stolen reservation land. If the Cherokees were guaranteed a reservation, then removed from that reservation without compensation and without Congress explicitly approving the deal, then they might have a claim, but even if they did the total land area which was alienated in such a fashion is likely small, and probably doesn’t include Chattanooga. We can assume that the remaining land which has Cherokee title is in the hands of the Cherokees today, and what isn’t isn’t very much at all.
[li] There is a final possibility, which is that of aboriginal title. Aboriginal title might possibly be asserted if the Cherokee occupied land which they never willingly ceded, which they never relinquished by treaty, for which they were never compensated by the ICC, and which was never converted into reserved title. This is highly unlikely, in my opinion, but not impossible. A couple of years ago the Miami of Oklahoma entered just such a claim against the state of Illinois, and I was tasked to examine their argument. It was surprisingly air-tight, but it may also be unique.[/li][/ul]
The bottom line is that most, if not all, of the Cherokee lands not currently held in trust for the Cherokee by the United States is land that was legally conveyed, although the legal path is often a heartbreakingly rocky one. However, I see very weird shit in my work practically every day, so I again make only the rather limp assertion of “probably not.”
Hope that helped some, and wasn’t too long or technical. Feel free to grill me as much as you like. I’ll try to make myself available at points over the weekend.
–Sofa King, who by coincidence discovered a couple of years ago that he, too, is of partial Cherokee descent.
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