The Constitutional Crisis Americans Forgot
What Trump is doing, has already been done. And not in some foreign country, but right here in the United States.
Many have called Trump and his actions unprecedented. More often than not when pundits and scholars search for comparisons they go abroad—to Putin, Hungary, even Hitler. But what Trump is doing, has already been done. And not in some foreign country, but right here in the United States.
Last Friday, the Supreme Court upheld a lower court order to bring home a Maryland father who was deported due to an administrative error. Yet Kilmar Abrego Garcia remains locked up in a notorious El Salvador prison. Rather than returning the wrongfully deported man, the administration is quibbling over wording and functionally ignoring the court order. In a separate deportation case, a federal judge is holding the administration in contempt for not turning around a deportation flight when so ordered. Legal scholars are calling the standoff a constitutional crisis. We have been here before.
In 1832, the Supreme Court heard a conflict between the state of Georgia and a white missionary. For the crime of preaching to the Cherokee people, Samuel Worcester was arrested and dragged in chains over 70 miles to a Georgia prison where a jailer told him, “Here is w[h]ere all the enemies of Georgia have to land—Here and in Hell.”
At the time, Georgia wanted Cherokee land and was willing to do almost anything to get it. The state created a special militia that harassed, tortured, and even killed Cherokee citizens. Georgia passed laws banning Cherokees from mining gold on their land, testifying in Georgia courts, and convening their government. And the state prohibited white missionaries (whom Georgia believed were coaxing Cherokees to hold out against removal) from working in Cherokee nation without a permit from the state. Much like the idea of self deportation, Georgia was trying to make life so unbearable for Cherokee Nation, the tribe would agree to leave. The only problem was Georgia’s actions were illegal.
When Worcester v Georgia reached the Supreme Court, Georgia refused to participate. Today, to stonewall federal courts, the Trump administration is sending uninformed lawyers who can’t answer the judge’s questions. In 1832, Georgia didn’t even send a lawyer.
The case proceeded anyways and it captured the nation's attention; so many members of the House of Representatives attended the body had to adjourn. Worcester’s lawyer, who was hired and coached by Cherokee Nation, argued the tribe had an inherent right to self governance on their land, recognized by treaties with the United States. And that under the U.S. constitution treaties were the supreme law of the land. Therefore, Georgia was not just violating Cherokee sovereignty, but also the U.S. constitution. As the lawyer detailed the violence Cherokees faced at Georgia’s hand, the Chief Justice was reportedly so moved he cried.
On March 3, 1832 the Supreme Court issued its decision. Indigenous nations, the opinion said, were “the undisputed possessors of the soil, from time immemorial”. It was “extravagant and absurd”, it went on, to think Europeans by establishing “feeble settlements” hugging the eastern seaboard, legally acquired “the lands from sea to sea”. Under the constitution, the opinion noted, Indian affairs were “exclusively” handled by the federal government. Georgia, as a state, could not alter the rights of Cherokee Nation under U.S. law. Georgia’s actions violated Cherokee sovereignty, federal statutes and the constitution, the Court concluded. In short, Georgia’s harassment had to stop.
My great-great-great-grandfather, John Ridge, was on a speaking tour of the Northeast when the decision came down. As a Cherokee leader, he was traveling to drum up support for the Cherokee cause. At the home of a missionary in Boston, John got the news. After years of refusal, the federal government would have to do something. The Supreme Court had spoken. Back home, runners delivered the news of the legal victory to every corner of Cherokee Nation. People danced until the sun rose. At long last, Georgia’s reign of terror would end. On the land of their creation and by the graves of their ancestors, Cherokees could remain.
While John was celebrating the victory, rumors were already circulating that Jackson would defy the Court. In our democracy, the Supreme Court does not have an army or police, it only possesses the power of the pen. For the Court’s decision to mean anything, the other branches of government have to carry it out. Jackson, as President, was constitutionally bound to do so. Leading John Ridge to believe the rumor would not be realized. “Georgians flatter themselves with the hope that General Jackson will not sustain the court,” he wrote. “But in that event what becomes of the Union?” Immediately, he traveled to Washington to meet with the President.
Face to face with the President, John argued the Supreme Court decision must be upheld, but Jackson refused. According to some, the president replied, The Court “made their decision, let [them] enforce it.” Worcester and another missionary remained in a Georgia prison. Jackson did nothing.
The genius of the founding fathers, we are told, was creating a system of checks and balances. Unlike the king of England, if the president stepped out of line, Congress or the Supreme Court would reign them in. But, when Jackson defied the Supreme Court, nothing happened. The abuse of power went unchecked.
The Supreme Court could have held Georgia and Jackson in contempt. Or Congress could have impeached the President. But as John met with Cherokee political allies in Washington, none of it felt possible. One Supreme Court Justice told John there was nothing else the high Court could do. Congressional allies advised the Cherokee leader his tribe should leave the state of Georgia. Even the missionaries, the tribe’s most fervent allies, signed an oath of allegiance to the state instead of fighting their confinement. A separate crisis–South Carolina threatening to nullify federal law–had political leaders worried. The missionaries decided pushing the Cherokee issue further might pull the fragile union apart. They chose unity over justice. Instead of meeting the constitutional crisis, our country pushed it aside.
The water we currently find ourselves in is not uncharted, but how to hold a rogue President accountable is. If the Americans of 1832 had been willing to sacrifice more to protect the lands and sovereignty of Cherokee Nation, perhaps we would have a clearer roadmap of what to do with Trump now. But we don’t. As one Cherokee leader wrote at the time, there was not a “sufficient degree of interest for the welfare of the Aborigines in the United States… to save them from oppression”.
The U.S. has often ignored the law when it comes to the sovereignty of Indigenous nations. Trump’s lawlessness is not unprecedented. Disregard for the law is a muscle our federal government has exercised and strengthened for centuries.
What came of Jackson’s refusal to comply with the Supreme Court is now known as the Trail of Tears. When Cherokees would not willingly leave their ancestral homelands, the army built 25 open-air stockades. 7,000 U.S. soldiers and militiamen went out into the hills and valleys of Cherokee Nation to round the people up. Cherokees, startled by bayonets in their gardens or kitchen, were not allowed to collect any possessions. When a deaf man did not understand the militia men’s orders, they shot him. Over 15,000 people were herded into the camps.
The army was woefully unprepared to feed and house their thousands of captives. By fall, Cherokees had buried 2,000 of their fellow citizens. As a newspaper reported at the time, “that is one eighth of the whole number, in less than four months.” When Cherokees marched west that winter death followed. Although the exact number is unknown, one missionary estimated 4,000 people died between the camps and removal–a quarter of the total population.
Many consider the Trail of Tears to be an act of genocide. The U.S. has never reformed itself or changed its laws to prevent such an atrocity from happening again.
We have not learned from this history because we do not know it. The history of Indigenous nations is often treated like a tragic, distant chapter of the American story and the legal terrain it created like a siloed, backwater of American law. But the faultlines it carved in our democracy are still with us. And now we are living through an earthquake.
Kilmar Abrego Garcia’s case is the tip of the iceberg. Already, the Trump administration is challenging the citizenship status of people born in the United States, monitoring immigrant’s social media, disappearing lawful residents in retaliation for their protest, and claiming it has the authority to deport U.S. citizens to foreign jails. What could come next is truly terrifying. What scares me most is not what I think the Trump administration is capable of. It is what I know our government can do–because it has already been done.
Native News Roundup–April 2025
Mark Fiddler, the adoption attorney we investigated in season 2 of This Land is still at it. This time, he is trying to overturn ICWA before the Minnesota State Supreme Court.
Trump has unveiled a plan to close the EPA Office of Research and Development in Ada, Oklahoma. It is the nation’s only federal groundwater research lab. This will have disproportionate impacts for tribes, where the majority of drinking water systems utilize groundwater.
The Kennedy Center has withdrawn its support for Crushing Colonialism’s annual Indigenous Pride event after the organization refused to remove Drag, Drag-Adjacent gender-nonconforming, Two-Spirit, and trans performers from the lineup. As a result, Crushing Colonialism urgently needs to raise $50,000 to ensure the event is accessible and free. Donate and read more.
The Trump-proposed SAVE Act is heading to the Senate. If passed, it will disenfranchise millions of citizens, including Native voters. Under the Act, tribal IDs will be insufficient to prove citizenship and will require additional documentation and rural Native voters will need to travel hours to register to vote in person, or even to update their address or party affiliation. Check out Protect the Sacred, which registered hundreds of Indigenous voters in 2024 through the Ride to the Polls campaign.
On April 4, two citizens of the Blackfeet Nation sued the federal government over tariffs on Canada, arguing that they violate treaty rights. At issue is the 1794 Jay Treaty, which stipulated that Native Americans would not be taxed on their own goods when freely crossing the border.
On April 8, the Department of Education canceled a civil rights agreement that mandated resolution to disparities in the treatment of Native students in Rapid City Public Schools, citing federal DEI bans. The agreement was implemented in 2024 following an investigation by the Department’s Office of Civil Rights, which found that Native students faced discrimination in the discipline process and access to advanced learning courses.
While the state’s leadership continues to be openly hostile towards tribes, Cherokee Nation donates $7.6 million to Oklahoma public schools. Cherokee Nation has distributed $99.7 million to public schools within the reservation and contiguous counties since 2002.
The San Carlos Apache tribe is offering a $75,000 reward for information leading to the arrest of the people responsible for killing Apache teenager Emily Pike. Nationally, there are 4,200 unsolved cases of missing and murdered Indigenous people. Meanwhile, as part of the Trump admin’s purge of “DEI” information on government websites, it has taken down a federal report on Missing and Murdered Indigenous People. The task force behind the report was created by Congress.
In early March, the Trump admin took down webpages on military sites celebrating the Navajo code talkers whose undecipherable radio communications in Navajo helped the US win World War II. After public outcry, the webpages are back up. The Department said it had been erased in error.
Peggy Flanagan, who is White Earth Nation, and has been Minnesota’s Lieutenant Governor since 2019, is running for U.S. Senate. If she wins, she will be the first Native woman to serve in the Senate.
By The Fire We Carry–Press Roundup
On April 11, I visited Santa Fe to give a lecture, “Fighting Indigenous Erasure in the Media” at the School for Advanced Research. Wado!
By The Fire We Carry was a finalist for the National Book Critics Circle Award. It was an honor to be recognized and inspiring to be among such brilliant writers at the finalists’ reading in March!
Recognitions, honors, and awards for By The Fire We Carry:
Winner of the J. Anthony Lukas Book Prize
Finalist for the National Book Critics Circle John Leonard First Book Prize
Winner of the Oklahoma Historical Society’s E. E. Dale Award
Longlisted for the Andrew Carnegie Medal for Excellence in Nonfiction
Longlisted for the Women’s Prize for Nonfiction
Longlisted for MPIBA’s Reading the West Award for Nonfiction
Finalist for the ABA Silver Gavel Awards for Media and the Arts
Runner-up in the Libby Award for best adult non-fiction
Finalist for Stubbendieck Great Plains Distinguished Book Prize
Thank you for this historical context. I'm especially appalled by handwringing from people who seem to naively think all of this started with Trump. This country was built on genocide and slavery. People say "never forget" but America's whole legacy is basically selective amnesia, delusion and apology. It's a cycle of abuse on a societal level.
Wado for this post!
Cherokees know too well that a president who ignores the Supreme Court is familiar territory. I told the same story here. We identify with Kilmar Abrego Garcia.
https://schampton.substack.com/p/the-arc-of-settler-colonialism-bends