the nature of representation: the cherokee right ... - Boston University

152 PUBLIC INTEREST LAW JOURNAL [Vol. 15
moved west of the Mississippi and in consideration for this a Congressional
delegate was afforded to them. What are the Cherokees entitled to if the U.S.
defaults on its part of the removal bargain? Under black letter Contracts law, the
Cherokees would be entitled to compensation.
Restitution damages, the most common way of resolving a breach of contract,
involve the “return or restoration of some specific thing or condition.” 306 Recalling
Mason’s speech to the Cherokees in which he explained that the delegate right was
the most important treaty provision the Cherokees received in return for removing
west, restitution of eastern Cherokee land makes intuitive sense should the delegate
right be denied. Independent of the uproar created and the political impossibility of
such a form of restitution, the holding of City of Sherill v. Oneida Indian Nation of
New York arguably does not authorize this form of remedy for disallowing a
Cherokee delegate, 307 but the removal era negotiations suggest alternatives.
In various speeches, Arizona Professor Robert A. Williams, Jr. surprised Indian
and non-Indian audiences by disproving the popular idea that Indians did not
understand what they were giving up and what they were getting in land cession
treaties. Williams dramatically shows that despite the later Indian rights rallying
cry “The Black Hills are not for Sale” the Black Hills were indeed for sale but the
U.S. was just not willing to pay the full sale price that the Sioux set. 308
Similarly, John Ross, the elected Cherokee leader during the removal era, offered
to sell eastern Cherokee land at a price of $20 million. Should the U.S.
Government dishonor the delegate provision’s terms on political or Constitutional
grounds, one possible way of compensating the Cherokees would be to pay the
Cherokees the difference between the Cherokee price for their removal, $20 million,
and what they were actually paid, $5 million. Of course, the money should be paid
according to the present value of $15 million in 1835.
remunerated.” Letter fromJohn Ross to Lewis Ross (Jun. 1, 1839), in 1THE PAPERS OF
JOHN ROSS, supra note 14, at 713.
306
BLACK’S LAW DICTIONARY 1339 (8th ed. 2004).
307
125 S. Ct. 1478 (2005).
308
Speech of Robert A. Williams, Jr. at Loyola University New Orleans School of
Law (Mar. 14, 2005).