NATIVE SENSE - MARSHALL TRILOGY - U.S. SUPREME COURT
| The following are brief synopsis' of the foundational cases that established
the field of federal Indian Law. These cases arose against a backdrop of
a growing federal government that was finding itself in increasing conflict
with state governments over the extent of its powers. The states were attempting
to assert governmental authority over tribal governments. This was particularly
true with states in the South. This assertion was opposed by the federal
government. In direct response to state assertion of power over tribes,
Chief Justice Marshall crafted opinions, usually through consensus building
with other justices, that gave rise to the concept of Indian nations retaining
their inherent "nations" status, such that all relations with these "nations"
were solely within federal power. These cases heralded the introduction
of the unique trustee/ward relationship between the tribes and the federal
| WORCESTER V. GEORGIA, 31 U.S. 515, 8 L.Ed. 483 (1832).
The State of Georgia attempted to force whites to register and pledge
allegiance to Georgia law before entry onto the reservation was allowed.
Worcester was a postmaster for the mail service and refused to register
and pledge his allegiance. The State of Georgia charged him with a crime.
The Supreme Court held that Indian tribes, as separate nations, had defined
territorial boundaries within which state law was inoperative and ordered
Worcester charges dismissed.
| CHEROKEE NATION V. GEORGIA, 30 U.S. (5 Pet.) 1 (1831).
The Cherokee Nation sought review with the Supreme Court to impose an injunction
on the State of Georgia prohibiting implentation of certain laws of that
state on the Cherokee Nation reservation. Pursuant to the Constitution,
all regulations concerning commerce with Indian nations were within the
sole power of the federal government. In what is known as the Commerce
Clause, the Founding Fathers empowered Congress to "regulate commerce with
foreign nations, and among the several states, and with the Indian tribes."
The Supreme Court was authorized to hear only matters of "original jurisdiction",
that is, matters expressly provided for in the Constitution. The Supreme
Court held that the Cherokee Nation was not a foreign nation, rather a
"domestic dependent nation" subject to the sovereignty of the United States
federal government. Since the tribe was not a "state" nor a "foreign nation",
the Supreme Court's held that the motion for an injunction was not a matter
of original jurisdiction and refused to grant the injunction.
| JOHNSON v. M'INTOSH, 21 U.S (8 Wheat) 543 (1823). This
case involved a dispute between two white men who held conflicting titles
to land sold within the reservation to them. Johnson held a title sold
him by the Tribe within the reservation. Chief Justice Marshall, examined
the history of how land was acquired during the European invasion and ultimately
held that the tribe did not have an enforceable title to the land it sold.
The Indians enjoyed a right of "occupancy" only. The ultimate title to
land had passed to the United States government under a principle called
|The "discovery doctrine"
was developed by the Spanish philosopher, Vittorio, in an attempt to justify
and explain the taking of land from aboriginal people. In its essence,
Vittorio opined that it was the manner in which the civilized nations dealt
with each other as it pertained to the land, that governed who had title.
A European nation that discovered land occupied by aboriginal people, assumed
certain rights over that land that were recognized by the other European
nations. It was these "recognized" rights that were passed on to the United
States when it won the War of Independence. I will not attempt to go on
a further dissertation on the doctrine, except to say that, in it, Marshall
found the rationale for asserting federal title power over the land versus
state power. As a result, with the adoption of the "discovery doctrine,"
the Court held the title to land passed to the plaintiff by the Illinois
and Piankeshaw tribes was invalid because Indians held only a title of
occupancy, and not full title.