In the early 19th century, the Cherokee Nation found themselves in constant legal battle with the State of Georgia, in which the three cases that encompass the Marshall Trilogy began. The states were attempting to assert governmental authority over tribal governments, all of which was opposed by the federal government. In response to state power over tribes, Chief Justice John Marshall crafted titles, definitions, and opinions. These generated the idea of a dependent nation and Indian Sovereignty, introducing the unique trustee/ward relationship between the Native tribes and the federal government. Tribal sovereignty became more than a legal concept. It is part of the military, social, and economic development of the United States. According to Article 1, section 8, clause 3 of the Constitution, Congress is authorized to regulate commerce with “foreign nations, among the several states, and with the Indian tribes.” The Supreme Court affirmed the legal and political standing of Indian Nations in a set of three court cases that are now known as the Marshall Trilogy. These cases are the bases of Indian sovereignty and the parental role the United States have over Indian Nations.
In order to understand the role that the Supreme Court plays in Indian Sovereignty one must understand the powers and the relationship between executive, legislative, and judicial branch of government. As stated in the introduction, Congress has the power to regulate commerce with Indian tribes through the Indian Commerce Clause. This clause is the main source of federal power over tribes and Indian Country. It is also the only definition used by Congress to justify and define Indian Sovereignty. Congress has power to have jurisdiction over Indians as they reside within the limitations and boundaries of the United States. The president, on the other hand, maintains the ability to enter treaties with Native Americans. This power was expressed throughout the 18th and 19th century to secure tribal land. However, it soon ended in 1871 when Congress passed a legislation ending the practice. When it comes to Native peoples, the role of the Supreme Court is to interpret and justify actions of the President and Congress. By doing this, there maintains a balance between the rights of the Indian Nations, English settlers, later U.S citizens. Although times have changed considerably regarding the relationships between government, citizens, and native tribes, Tribal Sovereignty continues to be a major concern.
Before the birth of the United States, federal relations with Native tribes were carried out through hundreds of treaties, thousands of statutes, administrative rules, and common agreements. Most of these treaties and agreements were based on geography which did not affecting the Native American Peoples. However, treaties functioned as the most important documentation describing the relationship between English settlers and Indians. This continued until the courts began to bring specific meaning to these laws by placing them in larger context of the Constitution and national policy. Treaties gave confirmations of the right to self-government, fishing, hunting, and jurisdictional rights over land. The one aspect that treaties lacked was the right for Indians to break away from the United States, a right that was ceded by the U.S that Indians never gave away.
The first case of the Marshall Trilogy is Johnson vs. McIntosh, 21 U.S (8 Wheat) 543 (1823). This involved a dispute between white men who held titles to land sold in Indian Country. Johnson held a title sold to him by the tribe, McIntosh held another title sold to him by the state of Georgia. When this case came before the Supreme Court, Chief Justice Marshall studied the history of how land was acquired during European Invasion. This is otherwise known as the Discovery Doctrine. The Discovery Doctrine gives a European nation assumed right over any newly discovered territory. This doctrine stands as legal whether or not the land is occupied by aboriginal people, however the land must be acknowledged by other European countries. With the adoption of the Discovery Doctrine, Marshall concluded that the tribe did not have any title to the occupied land. He argued that Indians had only a right of occupancy in which the ultimate title to the land belonged to the United States government. Within the context of invasion and conquest that gave all Indian Land to the U.S, settlers received basic control over the land, which is demonstrated throughout the history of Indian Law. This decision becomes a key cornerstone of Indian Law that remains intact today through the legal ground of the Doctrine of Discovery. This is further elaborated by the celebration of Columbus Day that is now symbolized as a day of mourning for Native American communities.
The second case of the Marshall Trilogy is The Cherokee Nation vs. Georgia, 30 U.S (5 Pet.) 1 (1831). The Cherokee Nation sought the jurisdiction of the Supreme Court to disable the State of Georgia from implementing state and federal law on Cherokee Nation reservations. However, the Supreme Court found that the Cherokee Nation is not a foreign nation as stated in the Commerce Clause. Instead, the court concluded that Natives are a “domestic dependent nation” subject to the sovereignty of the U.S and federal government. With this ruling, however, the court was in contradiction with the law. The new ruling found that Indian tribes are not a State or a foreign nation. The findings ceded that Indian nations do not have the attributes of a sovereign nation. Insteady Native nations are an independent nation that resides within the boundaries of the U.S. As such, Indian sovereignty is greatly limited. Therefore, Natives cannot enter treaties with other countries or claim Indian land as a separate country. Defined as a dependent nation, it officially began the trust relationship between the United States and the Indian tribes. According to this ruling, Natives are dependent on the U.S for land and territory as well as other assistance such as legalities. The federal government protects the tribes from interference and intrusion by state governments and citizens, again indicating that tribes are incompetent to handle their own affairs. The American Indian Policy Review Commission in 1977 explained:
The trust responsibility extends beyond real or personal property which is held in trust. The United States has the obligation to provide services and to take other appropriate actions necessary to protect tribal self-government. The doctrine may also include a duty to provide a level of services equal to those services provided by the states to their citizens. These conclusions flow from the basic notion that the trust responsibility is a general obligation, which is not limited to specific provision in treaties, executive orders, or statues.
Despite the obvious sovereignty of Indian Nations and trust obligations of the government, the relationships between these two are filled with horrible attempts to give up Indian sovereignty extending as far as genocide, assimilation, and extermination of Indian people. Not only did this case establish the trust relations between the U.S and Indian tribes, it also kept the three branches of government from conflicting with one another. The case contained a constitutional crisis between the Supreme Court, the president, and the state of Georgia. The residing president, Andrew Jackson would not give the Cherokee Nation resources to remove Georgia officials and enforce treaty rights. The State of Georgia also refused to appear before the Supreme Court when reviewing the case, arguing that it was a matter of the state and not the federal government. These occurrences produced negative outcomes for Native American rights. This is because it gave reason and rationalization for the breaking of treaties that paved the way for the removal or ethnic cleansing of Native Americans and Indian policy.
The final opinion of the Trilogy is the 1832 decision Worcester vs. Georgia, 31 U.S 515, 8 L.ED.483 (1832) and the most expansive of the set. It involved a Georgia statue that required governor permission to enter Cherokee territory. Despite federal trade, state law was established reserving exclusive federal authority over the power to regulate travel in Indian country. Two missionaries refused to comply with permit requirements and sentenced to 4 years hard labor. The two broke Georgia law as “white persons residing within the limits of the Cherokee nation without a license” (31 U.S at 528). Not only did it violate federal law, it also violated Cherokee’s sovereignty over internal affairs. In this case, Marshall reinstated as in the previous cases that:
The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. (561)
Marshall’s decision in Worcester obviously contradicts his previous decision based on the Doctrine of Discovery. In this case he makes a bad, but credible attempt at watering political terms, definitions, and reasoning. Although the decisions remain plausible in order for the U.S to maintain rights over the independent state of the Indians, the jurisdiction of Chief Justice Marshall will forever stay incoherent. Marshall is inconsistent with the language as he referred to the Cherokee Nation as a ward to the state. However, he is careful not to limit the federal government’s powers in Indian affairs, only limiting the power of the state in relation to the tribe and the federal government. It becomes clear that federal authority is preeminent in Indian affairs and defines the plenary power of congress. Even today the force of this case is kept in place by the words of John Marshall, for they are still enforced by law and continue to epitomize the fragile and complex relationship between the U.S and Native Americans.
Given the history of the U.S and Native American history, for congress to stand on good faith with the wishes and interest of Indians is ironic. While Supreme Court decisions need more rationalization and study, the power vested by congress revoked treaties established with Native tribes. As observed by these treaties, Congress must compensate tribes for land taken. This can be observed in a new policy established and implemented by United States vs. Shoshone Tribe of Indians, 304 U.S 111 (1938) and United States vs. Sioux Nation of Indians, 448 U.S 371 (1980). Despite these rulings, three bedrock principles underlie Marshall Trilogy. All Indian tribes possess incidents of preexisting sovereignty and this sovereignty was diminished or eliminated by the U.S. As tribes are sovereign they are considered dependent on the U.S for protection, trust, and responsibility, (American Indian Law, 1993). It is these key facts that have continued to guide the Judicial System into its interpretation of the dual relationship to include the respective rights of the federal government, the state, and Native tribes.
Reference:
Indians In American History (An Introduction). Frederick E. Hoxie, Peter Iverson. Harlan Davidson, Inc. 1998
Native Sense: The Marshall Trilogy and the U.S Supreme Court. McCanna. Native Sense Journal (1992).
Fundamental Principles of Tribal Sovereignty. American Indian Policy Center.St. Paul Minnesota, 2000
From Marshall to Marshall: Changing Stance On Tribal Sovereignty. Pygoski, Phillip. Cooley Law School, Lansing Michigan, 1996
Doctrines of Discovery. Cheyfitz, Eric. Common-Place, vol.2, no.1, Oct’01 pt.IV
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