Are you suggesting that by interpreting a treaty -- a treaty which the Constitution makes part of "the supreme Law of the Land" (U.S. Const., Art. VI) -- the Supreme Court was engaged in "judicial legislation"?
Actually, yes. Article 4 Section 3:
Section 3. New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.
Those treaties effectively create foreign states within defined State borders. In the "old" Constitution rights to land are a STATE determination, not Federal. The feds had NO standing to cede state land without the consent of the state legislatures.
Article IV Section 3 of the Constitution has nothing to do with Indians, treaties, or the Supreme Court. It pertains to Congress's power to admit new States into the Union and the limits on that power. The treaties between the Cherokee and the U.S. do not purport to create any new states at all, let alone to admit new States into the Union.
Nor do the treaties "effectively create foreign states within defined State borders." The Indian nations existed before the Constitution. They existed before the U.S. They existed before the British colonies. They existed before Europeans came to North America.
Relations between the Indian nations and the British colonies were governed by treaty. (
E.g., the Treaty of Lancaster (1744) between the Crown and the Iroquois and the Treaty of Logstown (1748) between the Crown and the Delaware, Shawnee, and Wyandot.) Upon independence, the U.S. succeeded to those relationships with the Indian nations.
Under the Articles of Confederation, only the U.S. could enter into treaties; the States were prohibited from doing so. (
See Arts. of Conf., Arts. IX and VI.) And the U.S. did enter into treaties with various Indian nations, notably including the Cherokee. In 1785, the Cherokee and the U.S. agreed that the Cherokee would be "under the protection of the United States of America, and of no other sovereign whosoever." (Treaty of Hopewell, Art. III.)
Likewise under the Constitution, only the U.S. can enter into treaties; the States are prohibited from doing so. (
See U.S. Const., Art. II Sec. 2 and Art. I Sec. 10.) And under the Constitution, the U.S. has entered treaties with the Cherokee. In 1791, the U.S. and the Cherokee reaffirmed that the Cherokee were "under the protection of the said United States of America, and of no other sovereign power whosoever; and they stipulate[d] that the said Cherokee nation w[ould] not hold any treaty with any foreign power, individual state, or with individuals of any state." (Treaty of the Holston, Art. II.)
So your reference to "the 'old' Constitution" does not accord with the facts. Relations with the Indian nations have
always been governed by treaties with our national government -- the Crown when we were part of Britain, the U.S. under the Articles of Confederation, and the U.S. under the Constitution. The Indian nations do not derive their powers from the Constitution; their powers are the inherent powers of a sovereign, and they predate the Constitution. Because the U.S. has taken the Indian nations under its protection, they are limited sovereigns. But the limitations on their sovereign powers result from their relations with the U.S., not with the States. With respect to the States, the Indian nations are completely distinct and sovereign powers. Those are bedrock principles of the law governing relations with the Indian nations, they have been ever since the U.S. became a nation, and they spring directly from the relationships to which we succeeded upon our independence.
The Supreme Court acted well within its authority when it held that a treaty between the U.S. and the Cherokee, a sovereign nation despite being in a dependent condition, superseded Georgia law on Cherokee soil under Article VI of the Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ....
As Hamilton wrote, the courts have the "duty ... to declare all acts contrary to the manifest tenor of the Constitution void." That is exactly what the Supreme Court did.
Jackson also had duties. He had a duty to "take Care that the Laws be faithfully executed" (U.S. Const., Art. II Sec. 3), including the "Treaties" which the Constitution makes "the supreme Law of the Land". (
Id., Art. VI.) But instead of "preserv[ing], protect[ing] and defend[ing] the Constitution" (
id., Art. II Sec. 1), Jackson chose to subvert the Constitution by ignoring a treaty which the Constitution made the supreme law of the land.
In Worcester, the Court declared a series of Georgia actions void as repugnant to the Constitution, laws, and treaties of the United States. These included seizing tribal lands, executing Indian citizens who were precluded from testifying in court, and requiring the minister Sameul Worcester to have a Georgia permit to live in Cherokee Country. But President Andrew Jackson's failure to enforce the Court mandate in Worcester left the Cherokees with a decision in their favor but with no effective remedy. Whether or not Jackson actually said, "John Marshall has made his ruling, now let him enforce it," the result was the same. Georgians remained on Cherokee soil enforcing Georgia law while Samuel Worcester languished in a Midgeville prison for violation of a Georgia statute the Court had held unconstitutional. Despite Court decisions upholding Cherokee rights, Cherokee land was lotteried away and troops drove the Indians into prison stockades to await forced marches from Georgia.
In the winter of 1838-1839, sixteen thousand Cherokees were driven at gunpoint from their ancestral homeland over what has come to be known as "the Trail of Tears." More than four thousand of their number died on the way. "In truth," the Cherokees wrote in an 1835 memorial to Congress, "our cause is your own." The shared fate of all Americans under law has rarely been more poignantly invoked. "It is the cause of liberty and justice," they asserted. "It is based upon your own principles, which we have learned from yourself; for we have gloried to count your Washington and your Jefferson our great teachers."
(
Oxford Companion to the Supreme Court of the United States (1992) at p. 580.)
Too bad that Jackson did not learn so well.