So, to briefly describe why I'm posting this... I recently enrolled at the Northwest Indian College. I am taking their Native Studies Leadership program, which deals heavily with the history of the U.S. federal policy regarding U.S.-Tribal relations, among a number of other things. The current class I am taking now requires me to write some decent sized papers and I figured it would make great content for the sub. That being said, I have decided to turn it into a series for the sub. It has been reformatted for your viewing pleasure.

The Marshall Trilogy of Supreme Court Cases

Case 1: Johnson v. M’Intosh (1823)

In 1823, the first of three United States Supreme Court decisions was made that formed the basis for the U.S. Federal Indian Policy. In Johnson v. M'Intosh, Chief Justice John Marshall articulated the ruling of a case that was to determine the rights of a land claim involving two non-native parties. The ruling decided that because of an early treaty of land exchange, the land in question was ceded by tribes to the United States, subsequently ending tribal claims. Before the American Revolution, European nations had assumed complete control over the lands of America via the “discovery of this immense continent.” ^[1] Essentially, the thought here not only builds upon the fact natives ceded their lands, but because of the “right of discovery,” native land claims were not valid in a legal sense because their sovereignty had been “diminished,” resulting in the loss of their ability to sell their lands even if their occupancy was recognized. Discovery gave a legal title to these lands.

The ruling went on to state that because Indians had no legal claim to the ownership of the land, the land would belong to those who initially “discovered” it. In the case of America, this would have been Great Britain. Using this as a basis, Justice Marshall concluded that because the land that was in question during this court case had originally been owned by Great Britain upon discovery, it had been formally turned over to the United States via the Treaty of Paris (1783). This ruling not only extinguished the claim of any non-U.S. citizen, but also the claims of the indigenous inhabitants. ^[1][2][3]

The above ruling in Johnson v. M’Intosh is important because it established a major factor that would play into the later Marshall cases: the Indian right of occupancy. By extended occupancy of lands, continued governance of lands, and treaties made between the tribes and the United States that involved land cessions and border establishments, the Supreme Court ruled that Indians have a right to inhabit the lands they have retained that have not been extinguished through discovery, land cession, or congressional/executive acts.

Case 2: Cherokee Nation v. Georgia (1831)

Conflict began to arise early in the 19th century between tribes in the Southeastern United States and the states, both of whom claimed the land of the other party. White landowners and settlers started encroaching on the tribal lands of the so-called “Five Civilized Tribes” that were increasingly benefitting from the growth of economic resources. Beginning with the presidency of Thomas Jefferson, the formation of the Indian Removal Policy was already being conceptualized. In 1776 and 1803, respectively, Jefferson wrote (parentheses mine):

(In response to Indian and settler conflicts) “Nothing will reduce those wretches so soon as pushing the war into the heart of their country. But I would not stop there. I would never cease pursuing them while one of them remained on this side of the Mississippi.” ^[4]

(Regarding his administration’s Indian policy) “The preservation of peace” and “obtaining lands.” ^[4]

In 1823, the state of Georgia became more aggressive in its attempts to acquire native lands within the defined state boundaries. It insisted that the U.S. federal government enforce the agreements made in the Compact of 1802 that made the provision that the federal government was to extinguish Indian titles to land within the state of Georgia in exchange for Georgia releasing their claims in other territories. ^[5]

In 1825, Georgia received land from the Treaties of Indian Springs, which were ratified by Congress, from the Lower Creek Indians. Citizens of Georgia rejoiced over these land cessions and, even though their transfer was controversial, they refused to give this land back. ^[6] This demonstrates the mentality of the settlers during this time. Their aggression and desire for land cannot be understated in this case. With hopes of resolving these conflicts and strengthening the sovereignty of the Cherokee Nation, Chief John Ross of the Cherokee instituted a new constitution in 1827 that modeled the Cherokee after the United States government. This was an attempt to legitimize the Cherokee in the eyes of their white neighbors and to hopefully gain federal support to remove encroaching settlers who were violating the Treaty of Holston of 1791, which guaranteed protection of the tribe by the U.S. government. ^[7] Unfortunately, this was not the case.

Georgia reacted negatively to this new constitution. It was seen as threat to the land claims by Georgia. Georgia was moved to enact their own laws that tried to dissolve the sovereignty and rights of the Cherokee. By 1830, a whole slew of laws were passed that removed Cherokee citizens from their homes, making their courts illegal, and denying the sovereignty of their nation. The year prior, Andrew Jackson had been elected as the new President of the United States. Andrew Jackson was the one who formally enacted the federal policy of Indian Removal. This policy gave the President the power to make deals with Indian nations to buy out their lands and give them new lands that were in Indian Territory on the other side of the Mississippi River. Georgians jumped on this new act and continued their own initiatives at removing Indians from any tribe located in their claimed territorial boundaries and taking their land for state citizens, even by using their own militia. Cherokee sovereignty was essentially eroded and ignored. ^[8]

In response to this, the Cherokee Nation went to the Supreme Court to get an injunction issued to prevent Georgia from continuing with their horrific actions. It is here that Chief Justice John Marshall again delivered the court ruling. This ruling had profound effects for the Cherokee, but it was also one of the first formal writings that developed the trust responsibility of the United States. In short, the Supreme Court decided that the method in which the Cherokee Nation was approaching the court, in the form of a “foreign nation,” was not appropriate, thus the Cherokee could not enter the court to apply for an injunction because the Supreme Court had no jurisdiction over the Cherokee if they were not considered a “foreign nation.” The court did articulate, however, that the tribes were dealt with as states because of the “numerous treaties made with them by the United States as a recognized people” that were capable of governing themselves. ^[1]

The ruling also denoted the following the status of the tribe, and subsequently all tribes, as occupying territory to which they have a right and that were in a state of “pupilage;” their relation to the United States resembled that of a “ward to his guardian.” This is the basis for the trust responsibility and relationship between federally recognized tribes and the U.S. federal government today. It has classified the tribes as “domestic dependent nations” and that they were at least some kind of entity as identified by the commerce clause in the U.S. Constitution.

Case 3: Worcester v. Georgia (1832)

With the situation in Georgia worsening with each event, the Cherokee were seeing the dissolution of their entire nation. However, in 1832, another case was brought to the Supreme Court that ultimately involved the Cherokee Nation and the state of Georgia.

Georgia was enforcing laws stating that non-Indians needed to obtain a permit to reside within the lands of the Cherokee and needed to swear an oath to support the state of Georgia. A missionary named Samuel A. Worcester was convicted for failing to meet these laws, but the case was soon brought to the Supreme Court with the issue of whether it was lawful for Georgia to enforce their laws within the Cherokee Nation. The results of this case have set the precedent for understanding the relationship between tribes, states, and the federal government down to our day.

The court ruled that the past treaties made with the Cherokee and recognized by the previous Marshall cases are officially recognized by the United States and that the tribe has a right to self-government. This right has never been extinguished even if their original title to land ownership has. They have a right to self-government within the lands they occupy, as established by the title of occupancy made clear in Johnson v. M’Intosh. The court also ruled that it was up to the federal government to regulate relations between tribes and the United States; it was not the responsibility or right of the states to do so. Finally, the tribes possess a level of sovereignty that is distinct from the states and federal government. Therefore, states have no right to interfere with the exercising of rights by the tribal government. ^[1][8] The results are clear: Georgia state law could not be applied on Cherokee lands, or any native lands for that matter, because the United States had recognized tribal sovereignty by entering into treaties with the tribe(s). This is the standard set for today.

The Trust Responsibility

“The Federal government’s trust duty is rooted in the land cessions made by the native nations. As expressed in treaties and elsewhere, the land cessions were conditioned upon an understanding that the federal government would safeguard the autonomy of the native nations by protecting their smaller, retained territories from the intrusions of the majority society and its ambitious entrepreneurs.” – Mary Christina Wood (1994) ^[1]

As cemented by the Supreme Court cases of Cherokee Nation v. Georgia, the United States government has a responsibility to protect Indian tribes. The above quote also puts it plainly: because of the treaties tribes made, the United States has a responsibility to uphold those treaties as the supreme law of the land. Those treaties often made provisions for tribes in exchange for land.

For example, early acts by Congress prohibited the sale of Indian land without federal consent. While this gave considerable power to the federal government over Indian lands, it also carries the notion that it protects tribes for outside influences such as the land-greedy states. However, Congress has much more broad power within this trust relationship.

Today, when Congress exercises its plenary power over Indian nations, it must do so with the utmost good faith to Indians for their protection and benefit. Federal agencies, when working with tribes, must comply with all the duties imposed by the trust relationship, including being held to a high standard of fairness and being subject to judicial review to ensure they are meeting said standards, just as Congress and executive offices are held to this standard.

Within this trust responsibility, the federal government must provide certain things such as healthcare, education, and fishing/hunting rights to the tribes it has made treaties with. These are the rights that are inherit to the tribes, but are codified and cemented in treaties.

The trust responsibility remains important because tribes have been handicapped by the United States to a large degree. Many tribes are in poverty and cannot provide for themselves. Others are often attacked by outside parties such as the states. With the trust responsibility, the U.S. government is required to support tribes to the best of their ability and it is important we hold them to that promise. ^[1]

REFERENCE NOTES

1. Wilkinson, Charles. Indian Tribes as Sovereign Governments. 2nd ed. Pages 51-62; 143-151. California: American Indian Lawyer Training Program, 2004.

2. Lewis and Clark: The Unheard Voices. “The Doctrine of Discovery and U.S. Expansion.” 2005.

3. Professor Robert Millar. The Doctrine of Discovery and Manifest Destiny. Indigenous Peoples Forum. March 23, 2012. https://www.youtube.com/watch?v=QBAqizD_7Ls

4. Alysa Landry. Thomas Jefferson: Architect of Indian Removal Policy. 2016. http://indiancountrytodaymedianetwork.com/2016/01/19/thomas-jefferson-architect-indian-removal-policy-163077

5. Sturgis, Amy. The Trail of Tears and Indian Removal. Page 36. Greenwood Press, 2006.

6. Haveman, Christopher. The Removal of the Creek Indians from the Southeast, 1825-1838. Auburn University. 2009. file:///C:/Users/user/Downloads/Haveman.pdf

7. Treaty of Holston. 1791. https://en.wikipedia.org/wiki/Treaty_of_Holston

8. PBS. We Shall Remain – Trail of Tears. 2009. https://www.youtube.com/watch?v=S8o0heHXQF8