Citation
John Marshall and judicial influence as exercised in Indian judicial policy from 1823 to 1903

Material Information

Title:
John Marshall and judicial influence as exercised in Indian judicial policy from 1823 to 1903
Creator:
Deserino, Frank E
Publication Date:
Language:
English
Physical Description:
vi, 104 leaves : ; 29 cm

Subjects

Subjects / Keywords:
Indians of North America -- Government relations ( lcsh )
Indians of North America -- Legal status, laws, etc ( lcsh )
Indians of North America -- Government relations ( fast )
Indians of North America -- Legal status, laws, etc ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 100-104).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Political Science.
General Note:
Department of Political Science
Statement of Responsibility:
by Frank E. Deserino.

Record Information

Source Institution:
|University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
37311996 ( OCLC )
ocm37311996
Classification:
LD1190.L64 1996m .D47 ( lcc )

Full Text
JOHN MARSHALL AND JUDICIAL INFLUENCE
AS EXERCISED
IN INDIAN JUDICIAL POLICY FROM 1823 TO 1903
by
Frank E. Deserino
B.A., Stockton State College, 1985
M.A., University of Colorado, 1993
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science
1996


1996 by Frank E. Deserino
All rights reserved


This thesis for the Master of Arts
degree by
Frank E. Deserino
has been approved by
Thad Tecza
c?_
t 117*
Date


Deserino, Frank E. (M.A., Political Science)
John Marshall and Judicial Influence as Exercised in Indian Judicial Policy
from 1823 to 1903
Thesis directed by Associate Professor Glenn T. Morris
ABSTRACT
This thesis is an analysis of the Marshall trilogy of Supreme Court decisions that
were given by Chief Justice John Marshall on the issue of federal Indian law in the
years 1823 to 1832 and the impact of these opinions upon later Supreme Courts from
1832 to 1903. Marshall established a role of trusteeship over Indian affairs between
the judiciary and congress in his decisions by viewing the Indian as a domestic
dependent nation. However, by 1903 the judiciary relinquished its trusteeship over
Indian affairs to the plenary power of congress. The analysis consists of two major
components. One is John Marshall and his dilemma, as to whether to follow the
Lockian view of natural law, or to protect the inherent over-arching sovereignty and
supremacy of the federal government. Secondly having excepted the latter, Marshall
in the logic of his decisions influences the future of the Supreme Court in its
involvement in Indian affairs.
This abstract accurately represents the content of the candidates thesis. I recommend
its publication.
IV


DEDICATION
To my loving Virginia without whose patience, foresight, and care this paper would
not have been possible.


CONTENTS
INTRODUCTION...........................................1
CHAPTER
1. JOHN MARSHALL AND THE MARSHALL TRILOGY.................7
Johnson v. McIntosh......... ......................7
The Cherokee Decisions: Cherokee Nation v. Georgia.11
The Cherokee Decisions: Worcester v. Georgia.......39
2. ROGER B TANEY AND THE ISSUE OF INDIAN
CITIZENSHIP .............................. .............56
3. SALMON P. CHASE AND INDIAN TRADE AND
COMMERCE................................................66
4. MORRISON R. WAITE AND WHO HOLDS RESPONSIBILITY
FOR THE INDIAN..........................................70
5. MELVILLE W. FULLER AND THE POLICY OF INDIAN
ASSIMILATION............................................80
CONCLUSION......................................................87
NOTES...........................................................95
SELECTED BIBLIOGRAPHY...........................................100
vx


INTRODUCTION
John Marshall was the fourth Chief Justice of the United States Supreme
Court. In that capacity he assisted in the development of decisions that led to the
establishment and prominence of judicial review. He also provided some of the
ground breaking precedents regarding trade and commerce. The emphasis for this
paper however is Marshalls precedent in the decisions that specifically targeted the
relationship between the United States and the Indian tribes in the early expanding
republic. Although these decisions were decided regarding the facts upon which they
rested, taken as a whole the Marshall trilogy of decisions, Johnson v. McIntosh,
(1823), Cherokee Nation v. Georgia, (1831), and Worcester v. Georgia, (1832),
established precedent that has impacted the entire body of federal Indian law and
policy to the present day. These rulings evolved to influence the future of judicial
decision making for such cases, as United States v. Kagama, 1886, and Lone Wolf v.
Hitchcock, 1903. The result of all these cases would be to protect the inherent
overarching supremacy and sovereignty of the federal government. It would be these
two latter cases that were to be the judicial precedents that would transform the status
of Indian affairs by relinquishing the judiciarys guardianship responsibilities created in
1


the Marshall trilogy over to congress, and in turn giving to congress full plenary
decision making power over the Indian.
The Marshall trilogy of decisions, and their interpretation are the
pivotal works that set the tone for all future decisions made by the judiciary regarding
Indian affairs. These decisions set reliable precedent for a critical era of tribal-federal
relations, proceeding from 1832 to 1903, that saw congressional and presidential
policy go hand in hand in their view toward Native Americans, a policy that gave little
adherence to the fundamental decisions of Marshall. United States Indian policy, and
the laws that embodied it after 1832 were that of an alternating policy of removal,
annihilation, assimilation, coupled with the governments concern given to the issue
of Indian sovereignty. The judiciary in turn had the arduous task of using the
Constitution to interpret federal Indian law not only in a federal context, but in the
context of state law as well. However, the Courts were influenced in the logic of the
Marshall trilogy, which were the decisions that had crafted the interpretation and
legality of Indian policy in the early nineteenth century, and would continue to do so as
applied over the next seventy years.
This analysis consists of two major components. One is John Marshall and his
dilemma to follow natural law, and the sense of fair play, or to protect the over-
arching inherent sovereignty and supremacy of the federal government. The second
component consists of analyzing the decisions of future courts in relationship to John
2


Marshalls trilogy of decisions, most pronounced of which is Cherokee Nation. John
Marshall abandons natural law and embraces the protection of the supremacy of the
federal government. Subsequent judges of the Supreme Court uphold Marshalls
precedent through his logic and not his language.
Marshall was a Federalist and a political animal. He considered the political
implications of his decisions. If Marshall said that the Cherokees were an independent
nation, no one, especially the federal government, would respect or uphold his
decision. Marshall was faced with the dilemma of interpreting the law and of being
concerned about enforcing that law. If Marshall was truly a representative of an
independent judiciary with the ability to interpret the law based on his understanding of
its principles then he would not be concerned about its enforcement but only the
interpretation. Enforcement would be up to the President and if he refused such
responsibility as is his oath then the Congress could impeach him. Not only was
Marshall interpreting law, he was also involved with the political implications of his
decisions and could have decided Cherokee Nation based in politics and not in the law
which I believe he did. This is also where these later judicial decisions are implicated
as they are tied to the Marshall decision in Cherokee Nation by upholding federal
supremacy in Indian affairs.
This paper should not be regarded as a mere history of judicial-Indian relations
from 1823 to 1903, although this history behind the events certainly cannot be
3


ignored. Nor is this paper a psycho-social historical analysis of the judiciary, or of
John Marshall, his life, or influences that he may have relied upon in developing his
decisions. Rather my hypothesis is designed to tackle the partial acceptance and
rejection of the decisions in the Marshall trilogy by later supreme courts. The later
courts gradually disregarded the Indians as a domestic dependent nation while they
still protected the inherent federal supremacy and sovereignty over the Indian.
The thesis I propose is that given historical events, personal judicial prejudices,
political posturing, and general outside influences aside, there was that continued
thread of judicial precedent established by the Marshall Court. This influence in my
view had to have been called upon not in the language of these future decisions, but in
the logic found in the dicta of Marshall by the future rank and file of the Supreme
Court in its evaluation of decisions that were to determine the status of the Indian. A
logic that up until Kagama generally held to the premise of Marshall in that it
supported the inherent over arching supremacy and sovereignty of the federal
government over Indian affairs. If it is true that there is a connective thread to
Marshall, then what were the changes that occurred in the Court to move it from citing
Marshall to abandoning Marshall after Kagama while still supporting the role of the
federal supremacy of the government? Despite the judiciarys growing stature in the
federal system, in the end it would be this very branch of government that would
voluntarily surrender its trusteeship of the Indian to congress.
4


What elements were lacking in the judiciary, which should have maintained its
equality with Congress as the guardian over the Native American? What happened
that caused the judiciary to move away from the precedents that were established in
the Marshall trilogy? Although historians, legal and political scholars have all sought
to touch on these issues, it is my view that from the source materials I have read, the
documentation is still too general in its attempts to answer these questions. It is my
intention to produce a more analytical investigation of these issues as determined by
the influences of the cases brought before the Court from 1832 to 1903 in lieu of the
inevitable confluence of the judiciary, congress, and the Indian.
To achieve this analysis I have used the topical headings of examining the
Supreme Court Chief Justices themselves as determiners in the changes of judicial
legal interpretation, and decision making, in regards to defining the future status of the
Indian. First, I examine Chief Justice John Marshall, and an analysis of his trilogy.
This is done in order to achieve a better understanding of the cases themselves and the
motives Marshall had in deriving these decisions. Second, I provide an analysis of the
definition of Indian citizenship as defined by Chief Justice Roger B. Taney, in
comparing the condition of Indians to Black slavery. Third, I review the post Civil
War court of Chief Justice Salmon P. Chase, whose personal prejudice toward the
Indian as that of a mere savage was a greater influence in his views involving Indian
policy. This is followed by the fourth area which is an examination of the judicial
5


interpretation of federal, state, and territorial policies over Indian affairs from 1874 to
1888. This era was not only seen as a resumption of pre-war policy of Indian removal,
but also combined with this are new policies that focused alternately on the policies of
annihilation, and eventual assimilation. One of the key issues that emerged out of
these policies was the controlling influences of Congress on Chief Justice Morrison R.
Waite, who would eventually move the judiciary from a position of trusteeship over
the Indian, to that of essentially a congressional rubber-stamp. Finally, the fifth area of
Indian policy interpretation was achieved by the court of Chief Justice Melville W.
Fuller. Under his guidance, the judicial decisions of Talton v. Mayers in 1896, and
Lone Wolfv. Hitchcock in 1903 continued to change the status of the Indian and
reflect the assimilation policies of the federal government in contradiction to the spirit
of the Cherokee cases.
In this analysis, the cases that involved the Marshall trilogy will be examined
in the context of the paths in which Marshall could have taken and the course in his
decisions that he would eventually take that would change Indian policy. A policy that
would be continued, expanded, and eventually disregarded by the successors of
Marshall. The Court would continue to support the over arching inherent supremacy
and sovereignty of the federal government over Indian affairs.
6


CHAPTER 1
JOHN MARSHALL AND HIS TRILOGY OF DECISIONS
Johnson v. McIntosh
The question of the legal status of Indian title to the land was first presented in
Johnson v. McIntosh, where the plaintiffs claim of title to disputed land rested on a
1775 conveyance from the Piankeshaw Indians, and the defendants claim rested on a
subsequent grant from the United States. There was no question that the Indians held
original possession of the land and that their conveyance to a group of persons,
including the father of the plaintiff, preceded (by nine years) Virginias efforts to
convey the same land to the defendant. If the defendants title to the land was to be
preferred, it could only be because the plaintiffs was defective. As Marshall put it,
the inquiry in the case was confined to the power of Indians to give, and of private
individuals to receive, a title which can be sustained in the Courts of this country.1
Possession of freehold land was regarded by republican theory as providing
one of the strongest sources of a natural right, the right to hold or to dispose of ones
property as one saw fit. That Marshall felt the strength of this proposition can be seen
in one of the early paragraphs of his opinion:
As the right of society to prescribe those rules by which property can only be
acquired and preserved is not, and cannot be drawn into question; as the title
7


to lands, equally, is and must be admitted to depend entirely on the law of the
nation in which they lie; it will be necessary, in pursuing this inquiry, to
examine, not simply those principles of abstract justice which are admitted to
regulate, in a just degree, the rights of civilized nations, but those principles
also which our own government has adapted in the particular case and given us
as the rule for our decision.2
Here, Marshall provides a distinction between abstract justice and the positive edicts
of a government that form the rule for the decision. Marshall believed that abstract
rights were to be tempered by the right of society to prescribe their rules by which
property may be acquired. Practical considerations adapted in the particular case were
to receive special emphasis.
Having announced his focus, Marshall then plunged into a discussion of the
special features of Indian-white relations on the American continent. Those relations
were dominated, he argued, by the eagerness of Europeans, on discovering America,
to appropriate for themselves as much of it as they could respectively acquire, and by
the character and religion of the Indian inhabitants, which afforded an apology for
considering them as a people over whom the superior genius of Europe might claim an
ascendancy. Consequently, in establishing relations with the Indians, the rights of the
original inhabitants were not entirely disregarded; but were necessarily, to a
considerable extent, impaired.3 While the Indians were admitted to be the rightful
occupants of the soil, with a legal as well as a just claim to retain possession of it, their
s


power to dispose of the soil at their own will, to whomsoever they pleased, was denied
by the fundamental principle that discovery gave exclusive title to those who made it.
The recognition by European nations of the exclusive right of the discoverer to
appropriate the lands occupied by the Indians was retained when the United States
came into being. It has never been doubted, Marshall announced, that any state, or
the United States in general, had a clear title to all the lands, subject only to the Indian
right of occupancy, and that the exclusive power to extinguish that right was vested
exclusively with the federal government in extinguishing aboriginal title.4 The
principle that discovery gave an exclusive right to extinguish Indian titles was
incompatible with an absolute and complete title of the Indians. The private and
speculative opinions of individuals about the original justice of claims resting on the
fact of conquest were not relevant, even though the Indians possessory rights were
just as well as legal.5
Marshall believed that the principles governing Indian-white relations in
America had been formulated because of the character and habits of the people whose
rights had been wrested away from them. The Indians inhabiting America were,
according to Marshall, fierce savages. To leave them in possession of their country
was to leave the country a wilderness. The European discoverers had been forced,
given the character of the Indians, either to abandon the country or to enforce their
claims by the sword. They had, therefore, in their legal relationship with the Indians,
9


adopted principles adapted to the condition of a people with whom it was impossible
to mix. Laws that ought to regulate the relations between the conqueror and
conquered were incapable of application to a people under such circumstances.6
Thus the principle that discovery and conquest yielded an absolute right to remove
Indians from the land became the law of the land. The proposition that Indians were
mere occupants, incapable of transferring their titles to others, might well be opposed
to natural right, and the usages .of civilized nations, but it was indispensable to the
system under which America had been settled; it was a response to the actual
condition of the two people and the benefit of one in particular.7
The message of Johnson v. McIntosh, then, was that of a Lockian notion of the
natural rights of human beings to dispose of property that they held by virtue of
possession which did not apply to Indians in America. While Marshall had intimated
that the circumscription of the rights of conquered peoples was a prerogative of
conquest, he had not suggested that such a circumscription would have occurred if the
conquered persons had been other than fierce savages, incapable of being
incorporated with the victorious nation and thereby retaining unimpaired their rights to
property. The special principles of Indian-white property rights were a function of the
character and habits of the Indians.
The argument of the application of natural law to indigenous peoples had been
reduced, in Johnson v. McIntosh, to an inconvenience. Abstract principles, notions of
10


justice, and the natural right of the Indian to dispose of property had been
subordinated to the laws of the land, and the rules by which the early republic was
expanded and preserved. The positive enactments of the federal government, as
distinguished from the unwritten principles of natural law, determined the treatment of
Indian titles to land. Natural law, Marshall wrote in Johnson v. McIntosh, was not
designed to apply to cases involving persons whose character and habits were so
markedly different from civilized whites.
The Cherokee Decisions: Cherokee Nation v. Georgia
Between Johnson and the next two major Marshall Court cases dealing with
the rights of Indian tribes, the situation of native Indians in America became more
complex and even more precarious. Encouraged by Andrew Jackson and his
administration, which favored removal of all Indians inhabiting territory east of the
Mississippi, the federal government and certain states engaged in a variety of policies
calculated to dispossess Indians of their land. Indian policy under President Jackson
was distinguished by a refusal on the part of the federal government to regard the
Indian tribes as sovereign nations, by deference to states who attempted to compel
Indians to conform to their laws, and by constant pressure on the Indians to emigrate.
In the 1820s several states passed statutes, known colloquially as Indian laws,
bringing Indians within their borders under the jurisdiction of state courts. Indians
11


were required to pay taxes, serve in the militia, and work on state highways. They
could be sued in state courts for trespass or debt. Their tribal laws were declared to
be superseded by state law, and punishments were prescribed for those attempting to
enforce tribal laws.8 Those statutes were predicated on the assumption that the legal
status of Indians approximated that of persons owing legal obligations to the states in
which they resided rather than that of members of independent nations.
Alongside the growth of state efforts to subject Indians to state law was the
effort of the federal government to remove them from eastern lands. The process by
which removal was sought, demonstrated not only the significance of early
nineteenth-century white Americans attached to property rights and land ownership,
but also their perceptions of Indians. By the allotment system, Indians who had
demonstrated their capacity for civilization by establishing farms were given the option
of retaining cultivated land rather than emigrating. The lands retained were designated
allotments, which could ripen into fee simple titles in a few years, at which point the
landowner could apply for state citizenship. The expectation was that few Indians
would be sufficiently civilized to choose allotments, but that those who did could be
considered eligible for citizenship by virtue of their ownership and cultivation of land.
This requirement is ironic given the fact that most indigenous peoples in the Southeast
had been agriculturalists for centuries prior to the establishment of the United States.
The system also assumed that those who held allotments could freely dispose of them
12


in contracts with whites, that many would, and that Indians would often not secure
favorable terms. These expectations largely came to pass.9
When tribes such as the Creeks in Alabama or the Cherokees in Georgia
resisted efforts to relocate and refused to recognize state laws, the states and white
settlers joined forces to defraud them of their land or to force them to emigrate. As
early as the 1820s a common pattern had emerged: speculators bought land from
Indians and then borrowed their money back, often in exchange for overpriced
goods, including whiskey. The consequent loss of land reduced many Indians to a
dependent status, whereupon the federal government and the states encouraged them
to emigrate. After selling their allotments, Indians sometimes took to the swamps,
sometimes scavenged off their settler neighbors, or sometimes lived in huts on land
that had not been cleared for settlement. Eventually many became destitute or
emigrated.
The policy of removal, the frauds it helped perpetrate, and the dire
consequences for the Indian population precipitated a growing concern among a
segment of educated nineteenth-century Americans for what they termed the plight
of Indians. Like the allotment system, this response revealed the implicit ideological
boundaries limiting early-nineteenth-century white attitudes toward Indians. The
choices posed to Indians by the allotment system were to acculturate or to leave.
Either the owner of an allotment used land consistent with the way that civilized
13


white Republican citizens were expected to use land, in which case the owner could
become a freeholder, or the owner demonstrated himself incapable of that
acculturation and voluntarily dispossessed himself, with impoverishment or emigration
following. A similar bi-polarity framed the plight response. The plight of the
Indians was deemed to be caused by their inability to acculturate. Given that fact,
most Indians would inevitably be forced to emigrate. Most could not adapt to white
customs and institutions they lacked the inherent qualities of republican society.
While civilizing Indians was preferable to dispossessing them, for humanitarian and
i
paternalistic reasons, the civilizing process was unsuccessful in most cases. The result
was a plight, dependency, poverty, or emigration and dispossession.
In 1828, in an address commemorating the first settlement of Salem,
Massachusetts, Justice Joseph Story who would later play an important role in the
Cherokee cases called attention to the plight of the Indians. He first argued that the
principle that the European discovery of North America conferred upon the nation of
the discoverer an exclusive right to the soil. While this was flexible and convenient, it
displaced the Indians, who were in possession of the land and could maintain their
right to share in the common inheritance by standing upon the eternal laws of natural
justice. However, Story believed that the natural law argument, was quite too refined
to satisfy the ambition and lust of dominion of the early European settlers. They
14


therefore created the more convenient doctrine that the natives possessed a present
right of occupancy which might be surrendered to the discovering nation.10
The result, Story pointed out, was that by a law of their nature, the Indians
seem destined to a slow, but sure extinction. At the approach of the white man, they
fade away. Their disappearance was not principally the result of famine or war, but of
a moral cancer, which has eaten into their heart, a plague which the touch of the white
man communicated a poison which betrayed them into a lingering ruin.11 The eastern
seaboard, Story noted, now contained not a single region occupied by Indians,
already the last feeble remnants of the race are preparing for their journey beyond the
Mississippi.12 For Story there were some lessons in this melancholy history. The
westward exodus of the Indians signified for him the general backwardness of their
race, that they were incapable of assimilation with Western culture, and by their very
nature and character, they neither unite themselves with civil institutions, nor can with
safety be allowed to remain as distinct communities. Their ferocious passions, their
independent spirit, and their wandering life represented a challenge to white society,
and by their presence they raised the question whether the country itself shall be
abandoned by civilized man, or maintained by his sword as the right of the
strongest.13 For Justice Story I believe that he knew what the answer to that question
would be.
15




Story had also sent a copy of his address to Marshall, who responded with a
lengthy discussion of the Indian question.
I have been still more touched with your notice of the red man than of the
white. The conduct of our forefathers in expelling the original occupants of
the soil grew out of so many mixed motives that any censure which
philanthropy may bestow upon it ought to be qualified. The Indians were a
fierce and dangerous enemy whose love of war made them sometimes the
aggressors, whose numbers and habits made them formidable, and whose cruel
system of warfare seemed to justify every endeavor to remove them to a
distance from civilized settlements. It was not until the adoption of our present
government that respect for our own safety permitted us to give full indulgence
to those principles of humanity and justice which ought always to govern our
conduct towards the aborigines when this course can be pursued without
exposing ourselves to the most afflicting calamities. That time, however, is
unquestionably arrived, and every oppression now exercised on a helpless
people depending on our magnanimity and justice for the preservation of
character. I often think with indignation on our disreputable conduct as I think
in the affair of the Cherokees in Georgia.14
Storys address, and Marshalls comments on it, provide illustrations of the plight
response. The habits of the Indians were prominent in both accounts, in their
fierceness, and in their incompatibility with civilized society. While humanity and
justice ought to govern relations between whites and Indians, considerations of safety
quite naturally intervened. Both accounts also convey the practicality that tempered
white philanthropy toward the Indians. When the Indians had been reduced to a
helpless state, and had come to be dependent on the magnanimity of the whites,
indulgence was appropriate and oppression a disreputable response, but while Indians
remained fierce and dangerous, in defending their homeland from invasion,
16


self-preservation demanded a more hostile attitude. The dispossession response,
Marshall felt, had resulted in a deep stain on the American character only when the
Indians had been rendered helpless and continued to be oppressed. Before that their
forcible removal from civilized settlements had been simply a matter of necessity.
By the late 1820s and 1830s, as Stoiys and Marshalls comments suggest, the
plight response and an acknowledgment of the difficulties attendant on civilizing
Indians had become entrenched attitudes in a segment of the literate white community.
Missionaries had begun to live among the Indian tribes and had begun to publish
pamphlets dramatizing their plight, the most notable of which, Escape of William
Penn, a tract written by missionary Jeremiah Evarts, appeared in the National
Intelligencer in August 1829.15 The immediate context of Evartss essay was the
situation of the Cherokee Indians in Georgia.
In 1802, Georgia and the federal government had signed an agreement in
which Georgia ceded to the United States her claims to western lands that
subsequently became the states of Alabama and Mississippi. As part of the agreement
the United States promised to acquire the title to lands within Georgia held by Indians.
As Johnson v. McIntosh indicated, Indians holding land within the boundaries of
American jurisdictions were regarded as mere occupants, their title could be
extinguished by the federal government at any time. The 1802 agreement assumed
that only the federal government could acquire land held by Indians, but it did not
17


apply to Indian reserves and allotments, which in practice were sold by Indians to
whites as rapidly as white settlers demanded them.
The actions of federal Indian agents and missionaries who came in contact with
the Georgia Indians in the early nineteenth century, however, had impressed upon the
Cherokees the benefits of cultivating land, and when the allotment policy was created
in 1816, several Cherokees elected to remain on improved lands. By the 1820s many
Cherokee tribes had abandoned hunting, and they refused to emigrate or to sell their
lands. In 1827, the Cherokees adopted a constitution and declared themselves to be
an independent nation. The response of the state of Georgia was the passage of a
version of the so-called Indian laws previously described.16 When the Cherokees
asked the federal government for support, the Jackson administration took the position
that the Cherokees could not exist as an independent nation within Georgia and that
the United States would not interfere with the internal laws of a state.17 This was in
direct contradiction to the opinion of the Attorney General William Wirt. The choice
for the Indians, the Jackson administration suggested, was to emigrate, or to comply
with the new Georgia statutes.
In keeping with that position, President Jackson, in December 1829,
announced that he was recommending legislation setting aside federal territory west of
the Mississippi for emigrating Indians. Those Indians that chose not to emigrate,
Jackson emphasized, could retain allotted land if they qualified, but would be subject
18


to state laws.18 The Cherokees responded by petitioning Congress to vindicate their
rights in the face of the recent Georgia statutes, which they argued were
unconstitutional. Meanwhile a number of political leaders declared themselves
advocates of Indian rights, and as Jacksons bill, known as the removal bill, was
debated in the spring of 1830, it took on a distinctly political cast. Southern
congressmen overwhelmingly supported the bill, northern representatives generally
opposed it, and adversaries of Jackson, such as Henry Clay and Daniel Webster,
maneuvered to ensure that the issue of Indian rights would continue to receive public
attention.19
In the subsequent debate over Indian rights that formed a backdrop to the
Marshall Courts decisions in Cherokee Nation v. Georgia, and Worcester v. Georgia,
it is important to keep in mind just what rights the proponents and opponents were
debating. The members of the Cherokee nation that had led the movement for
independence and national autonomy were a ruling elite that consisted of the wealthier,
English-speaking, mixed-blood members of the Nation, who were opposed in many of
their goals by other members, although not on the goals of cultural diversity and
separatism.20 These elite Cherokees advocated separatism for two reasons: to avoid
being subjected to the jurisdiction of Georgia, a state that had not only claimed power
to regulate their affairs but had also passed laws discriminating against them, and to
prove to the white community and to themselves that, left alone, they could use their
19


land properly, acquire wealth, continue their education, and in general become
virtuous republican citizens. The rights claimed by the elite Cherokees, and
defended by their proponents, were rights of cultural self-determination, but not in its
modem connotation. The elite Cherokees, some of them slave owners, wanted to be
left alone so that they might become more rapidly acculturated. They were concerned
that elements in Georgia would underestimate their ability to be civilized. Those
traditionalist members of the Cherokee Nation that favored maintenance of ancient
tribal customs and practices were condemned by the elite Cherokees as aboriginal.21
The traditionalist, although they were condemned by the elite, also wanted to fight the
United States as John Ross did, but unlike Ross who wanted to fight in the courts the
traditionalist wanted to wage war, and in fact never favored removal.
Further, the rights being claimed by elite Cherokees in the debate were not only
natural rights of ownership but also rights of sovereignty. The Cherokee Nation, as
represented by its elite members, argued that its legal rights and responsibilities were
based on treaties with the federal government and thus that its legal relationships were
solely with that government. These relationships, the argument ran, were akin to the
relationships of the United States and foreign nations; which the Cherokees considered
themselves a sovereign independent country higher in status than the State of Georgia.
Thus the Indian rights argument was a sovereignty argument in a double sense,
drawing both on vested rights principles and on an analogy to the principles of national
20


sovereignty embedded in the law of nations. The two-pronged character of the
argument made it particularly explosive, because while the Cherokees claimed that
only the United States government could potentially regulate their affairs, the United
States government, in the person of the Jackson administration, supported Georgias
position. When the Cherokees sought support for their plea to be left alone to become
better republican citizens, then, they sought support neither from the citizens of
Georgia nor the federal executive. The institution they asked to protect their rights
was the Marshall Court, an institution known for its solicitude for individual vested
rights.
The debate over Jacksons removal bill resulted in a victory for his
administration: the bill was eventually passed and signed in May 1830. Shortly
thereafter a group of prominent opponents of the Jackson administration, including
Webster, advised the elite Cherokees to litigate their claims in the courts and
recommended hiring William Wirt as counsel. Wirts emergence as an advocate of
Indian rights was a bit sudden. He had been attorney general in the James Monroe and
John Adams administrations, which had consistently recommended removal of the
Indians from south-eastern states. In 1824 he had written an advisory opinion arguing
that the Cherokees were not a sovereign nation.22 He had been inclined to stay on as
attorney general under Jackson, despite the reputation of the latter as an Indian
21


fighter. Only after Jackson, apparently because of fears about Wirts views on Indian
affairs, appeared resolved not to retain him did Wirt join the opposition forces.
By 1830, however, Wirt was a strong Jackson opponent, and he had the
advantage of being an experienced Supreme Court advocate who could point to two
early pronouncements as attorney general in which he had upheld the independent
status of Indian tribes which were in 1821, and in 1828.23 In a long letter written in
June 1830 to his good friend Judge Dabney Carr of the Virginia Court of Appeals,
Wirt described his situation:
Some of the most distinguished men in Congress who had opposed the
passage of Jacksons removal bill, Webster, Judge Ambrose Spencer, Peter
Frelinghuysen and others, advised the Cherokee delegates then in Washington
to employ counsel to bring the various questions of their rights, under their
treaties, to the Supreme Court of the United States: and for this purpose they
were introduced to me some two or three weeks ago. I was aware of the
delicacy of the situation in which this application placed me. I saw that I was
about to be made instrumental in thwarting or impeding a project in which the
President and State of Georgia were bent, and which, but for my interferences,
might take immediate effect by the removal of the Indiansfor they would
sooner remove and die in the wilderness, than remain in subjection to the laws
of Georgia.
There are many well-meaning men who think it the interest of the
Cherokees to remove to a country where the whites will no longer annoy them
and where they may pass their lives in peace and quiet. But there are wild
Indians in the new territory who will probably contest the right of possession
with the Cherokees, and make that paradise a slaughter-house and a scene of
mutual extermination.24
Wirt was inclined to represent the Cherokees; he had taken up the question of
the right of Georgia to extend her laws over these people and concluded that Georgia
22


had acted unconstitutionally. He also acknowledged, however, the manifest
determination, both of the President and the State, that the Georgia law should be
extended over the Cherokees at every hazard.,25 He suspected that even if the
Marshall Court held in favor of the Cherokees, Georgia might defy the decision, with
the support of the Jackson administration. Even before the removal bill, Jackson had
taken the position that the federal government would not countenance an independent
Cherokee government, and that the Cherokees must submit to the laws of states. Wirt
suspected that Jackson might render any adverse decision of the Court abortive, by
forbidding the people of the county from obeying it.26
In addition, Wirt worried about how he would get a case before the Supreme
Court in which the Cherokees could test the constitutionality of the Georgia statutes.
He believed that a Section 25, (Judiciary Act of 1789) writ of error strategy would fail
because Georgia, following the course of Virginia in Martin v. Hunters Lessee, (a
case on whether a federal treaty or a Virginia state statute controlled the disposition of
an estate in Virginia) would simply never create any record for the purposes of the
writ of error.27 This left him, he felt, two other options. One was a suit in a federal
circuit court on behalf of an individual Cherokee against a Georgia official. The
Cherokee would claim that the execution of the Georgia statutes either interfered with
his property rights or so restricted his mobility as to amount to false imprisonment.
While this option was apparently discussed by the Cherokees, it was never seriously
23


entertained, possibly because William Johnson, in whose circuit court the suit would
have been brought, was not at all receptive.28 The circuit court suit required that
individual Cherokees be designated foreign citizens under Article HI, section 2 of the
Constitution, since that Articles language did not contemplate suits in the federal
courts by citizens of a state against the state itself or its officials.
The remaining option was the one Wirt eventually chose, but he recognized
that it was not free from jurisdictional difficulties. He described it to Judge Carr:
It became important to me to inquire whether the Cherokees had any right to
apply at once to the original jurisdiction of the federal courts; and this I cannot
perceive that they can do, unless the Cherokee Nation be a foreign state in the
sense of the Constitution, in which case they would have a right under the
Constitution to file an original bill against the State of Georgia, in the Supreme
Court, and ask an injunction against the execution of her law within their
territory; or, unless the individuals of the Cherokee Nation be aliens....
If the individuals of the Cherokee nation be aliens, so as to find the
original jurisdiction of the Supreme Court, the principal chief of that nation
might file a bill against those officers of the State of Georgia, who will
probably be engaged in executing her law, and ask an injunction against them,
although he could not sue the State herself.29
Wirt added that Article 6, section 2 of the Constitution provided that all Treaties made
under the authority of the United States, shall be the supreme Law of the Land; and
that Judges in every State shall be bound thereby. This brought him to the argument
he would make on the merits that Wirt believed that federal treaties with the
Cherokees had implicitly given the tribes the status of a sovereign nation, and that
24


the Supreme Court might declare itself bound to enforce the treaties, notwithstanding
the Georgia statutes.
Wirts analysis of the case that would come to be known as Cherokee Nation
v. Georgia was a brilliant performance. He was not only correct in anticipating
Georgias determination to resist a Section 25 case, and the Jackson administrations
determination to support Georgia in its defiance, but he had identified all of the
jurisdictional obstacles the Cherokees faced. If the Cherokee Nation, as represented
by its principal chief John Ross, brought a bill for injunctive relief against the state of
Georgia and its executing officials in the Supreme Court of the United States, the bill
might be dismissed on any of three grounds. The Cherokees might not be considered
foreign citizens, or aliens for jurisdictional purposes; the Cherokee Nation might not
be considered a foreign state for jurisdictional purposes; assuming these obstacles
were cleared, the Eleventh Amendment might be read as preventing suits by foreign
citizens against a state. The last ground was the least troublesome after Osborn v.
Bank of the United States which Wirt alluded to in his letter to Carr, since this case
seemed to establish that the Amendment was not a bar to nonresident suits against
state officials. Marshalls language in those cases had been cryptic to say the least,
which left considerable room for doubt as to whether it would be useful to rely on
court precedent.
25


Given all these difficulties, Wirt decided to seek an informal opinion from none
other than Chief Justice John Marshall on the question of jurisdiction. Will you tell
me, he asked Carr, whether there would be any impropriety in your conversing with
the Chief Justice on this subject, as a brother judge, and giving me his impressions. I
would not have you conceal from him that the question may probably come before the
Supreme Court. If I were near the Chief Justice, Wirt added, I would speak to him
with the confidence of a friend, and leave it to him to say whether he would or would
not be willing to come out with the expression of his opinion, so as to prevent
embarrassment and mischief.30
Carr sent Wirts letter on to Marshall, who then wrote Carr a response. I
have followed, Marshall said, the debate in both houses of Congress, with profound
attention and deep interest, and have wished, most sincerely, that both the executive
and legislative departments had thought differently on the subject. Humanity must
bewail the course which is pursued, whatever may be the decision of policy. Marshall
added, however, that he thought it his duty to refrain from indicating any opinion on
the jurisdictional issues.31
It is useful to note, on the eve of the great Cherokee litigations of 1831 and
1832, the persistence, among both supporters and opponents of the Indians, of the
attitudes that had been present throughout the early nineteenth century; and it is also
useful to note the awkward status of the natural law argument in prospective Indian
26


rights cases. Marshall, Story, and Wirt each regarded Indians as savage and largely
incompatible with civilized society. Each admitted that if civilizing Indians could not
solve their plight, dispossession and removal were the best policies. None felt that in
the case of Indians mere possession of land yielded any natural rights of ownership.
Wirt himself, in an October 1830 letter to James Madison, pointed out the interaction
of those views with natural rights theory:
The argument against the title of the Indians to their land, compared
with the argument in favor of our title to them, presents the strangest
absurdity.. .. We say ... that they can have no title but to so much land as
they can now cultivate;... whilst we hold that we have a perfect title to
millions upon million of acres confusedly beyond our present capacity for
cultivation. In their improved condition as civilized agriculturists, you will
perceive that the argument drawn from writers on natural law, applied to them
in their savage state, is unanswerable, unless we admit the new and strange
ground, now taken, that they had no right to alter their condition and become
husbandmen.32
Wirt had identified in this passage the same phenomenon that had affected the
natural law arguments in slave trade cases. When natural rights theory, or universal
principles of justice and humanity, cast aspersions on discrimination against racial
minorities, natural law arguments were refined so as to weaken their force. Black
slaves were considered human beings, and human beings had inalienable rights, among
them the right not to be treated as property; yet slavery was entrenched and blacks
were somehow different, and thus the natural law argument was reduced to a mere
moral claim. Indians were likewise human beings, and as possessors of land had a
27


natural right to the fruits of their labor, yet they could be dispossessed because of
theories of discovery and conquest or because they had not cultivated the land. When
the Indian could show that they had in fact become civilized agriculturists, that
showing was rejected because, being Indians, they had no right to alter their condition.
The circularity of the argument served to suggest that the unanswerable natural law
argument could be dismissed when the results it compelled were too disquieting. The
obvious corollary to that suggestion was that the stature of natural law and natural
rights as sources of law was indeterminate or even dubious.
Five months after Wirts October 1830 letter to Madison, he appeared before
the Court in the case of Cherokee Nation v. Georgia and moved for an injunction to
prevent Georgia from enforcing its Indian laws, claiming in the course of his argument
that the Cherokee tribes in Georgia constituted a foreign state. In the course of
preparing for his argument, Wirt had consulted several distinguished lawyers, including
Webster, Horace Binney, and James Kent. Binney and Kent sent him opinion letters,
which Wirt incorporated into his argument, declaring the Cherokees sufficiently
foreign to meet the requirements for the Courts jurisdiction. The opinion letters
revealed that another potential obstacle to the Cherokee suit had surfaced: the
possibility that the Court might conclude that it lacked power to enforce an injunction
against a state legislature because that act would constitute an undue interference with
that legislatures political powers. None of the lawyers Wirt consulted mentioned any
28


constitutional basis for that suggestion, but Wirt was nonetheless aware of the
possibility.33
Meanwhile, to complicate matters even further, the pending Cherokee Nation
case showed signs of precipitating a political crisis. Congress, in its winter session of
1830-31, took the occasion of the Cherokee controversy to consider repealing Section
25 of the Judiciary Act. Story complained in two letters in early 1831 that the
resistance to the Cherokee claims and the recent nullification doctrine were parts of
the same general scheme, and that if the twenty-fifth section is repealed the
Constitution is practically gone.34 In addition, there was the aforementioned difficulty
that if the Cherokees should win on the jurisdictional issue, and also on the merits,
Georgia and the Jackson administration, with the tacit support of Congress, might well
decline to endorse the Courts judgment, thereby isolating the Court.
Wirt alluded to this last possibility at the conclusion of his argument before the
Court on March 14, 1831, in which he gave a ringing defense of Indian rights:
If we have a government at all, there is no difficulty in enforcing
Supreme Court decrees. In pronouncing your decree you will have declared
the law; and it is part of the sworn duty of the President of the United States to
take care that the laws be faithfully executed. It is not for him, nor for the
state of Georgia to sit in appeal on your decision.... If he refuses to perform
his duty, the Constitution has provided a remedy. .. .35 ***
The existence of this remnant of a once great and mighty nation is at
stake in this case.... They are here in the last extremity, and with them must
perish forever the honor of the American name.. . We asked them for a
portion of their land, and they ceded it. We asked again and again, and they
continued to cede, until they have now reduced themselves within the
narrowest compass that their own subsistence will permit.... I cannot believe
29


that this honorable court... will stand by and see these people stripped of
their property and extirpated from the earth, while they are holding up to us
their treaties and claiming the fulfillment of our engagements.36
Thomas Sergeant had joined Wirt in arguing for the Cherokees. However, Georgia, in
keeping with its position that the dispute was entirely a state matter, had refused to
argue the case at all. The Justices took only four days after the conclusion of Wirts
and Sergeants arguments to reach a decision. The opinion of the Court, written by
Marshall, actually represented the views of bnly two Justices, himself and John
McLean. Gabriel Duvall was absent because of the mental illness of his son;37 Justices
Henry Baldwin and William Johnson concurred only in the result; Story and Smith
Thompson dissented but their dissent was written much later at the invitation of
Marshall. Moreover, while the opinion of the Court was ostensibly limited only to the
jurisdictional issues, Marshall took occasion to anticipate the disposition of a
hypothetical suit by Cherokees who had had their property confiscated by Georgia
laws. A majority of the judges, Marshall declared, had concluded that the
Cherokee Nation was a distinct political society, capable of managing its own affairs,
uniformly treated as a state, with an unquestionable right to lands they occupy, until
that right shall be extinguished by a voluntary cession to the federal government. The
question of the right of the Cherokees to the land they occupied might be decided by
this court in a proper case with proper parties.38 This was a clear intimation that only
the federal government could own title to Indian lands.
30


The language of Marshalls opinion suggests that he and McLean might have
been prepared to restrain Georgia from interfering with the Cherokee lands, and as it
shall be shown, two other Justices were also inclining in that direction. But the
Courts disposition of Cherokee Nation had, for a time, the opposite effect. While the
Cherokee tribes were a state, they were not a state of the Union, as their own
counsel, Marshall pointed out, had conclusively shown. Were they therefore a foreign
state?
The answer to this question brought about a great deal of difficulty, but
Marshall concluded that it was no. Indian tribes were neither domestic states nor
foreign nations. They were domestic dependent nations. Their relationship to the
United States was marked by peculiar and cardinal distinctions. That relationship most
closely resembled that of a ward to his guardian.39 Marshall advanced two reasons
for this conclusion, one based on the nature of Indians in America and the other based
on constitutional language. While Indians had an unquestionable right to the lands
they occupied on the American continent, their occupancy of territory was contingent.
The United States asserted title to their lands independent of their will. Indians and
their lands were considered so completely under the sovereignty and dominion of the
United States that efforts by foreign nations to form a political connection with Indians
would be treated by all Americans as acts of hostility.40
31


Marshall did not intend, by his decision, to refer only to the formal legal status
of Indians, that is, to the fact that many tribes, including the Cherokees, had signed
treaties ceding their lands to the United States. He also meant to refer to the habits
and usages of the Indians in their intercourse with their white neighbors. Indian tribes,
Marshall suggested,
look to our government for protection; rely upon its kindness and its power;
appeal to it for relief to their wants; and address the president as their great
father....
At the time the constitution was framed, the idea of appealing to an
American court of justice for an assertion of right or a redress of wrong, had
perhaps never entered the mind of an Indian or his tribe. Their appeal was to
the tomahawk, or to the government.41
Indians were different: they were both savage, appealing to tomahawks, and
dependent, appealing to the great father for relief.
The nature of Indians, Marshall argued, was well understood by the statesmen
who framed the Constitution of the United States. That understanding might furnish
some reason why the Framers had omitted to enumerate Indians among the parties
who might sue in the Federal Courts. The significance of the omission was clarified by
other language in the Constitution. The Commerce Clause distinguished between
foreign nations, the several states, and Indian tribes: here was clear textual
evidence of a contradistinction between foreign states and Indian tribes. While the
distinction, Marshall conceded, was made in Article I rather than Article HI, one could
not assume that the distinction was lost in framing a subsequent article absent explicit
32


language to that effect. Context and language, then, compelled the conclusion that
Indian tribes could not sue in the federal courts as foreign states.
Marshalls argument is one that could be seen as faintly familiar. Twenty-six
years after Cherokee Nation, Chief Justice Roger B. Taney was to consider in Dred
Scott v. Sanford the question of whether blacks could sue in the federal courts, and in
turn impose a new definition as to the status of the Indian. As with Marshall, Taney
concluded that habits, usages and context helped to answer the question as to the
nature and definition of the minority, and this was well understood by the Framers of
the Constitution. Like Marshall, he concluded that the federal courts were not open to
such persons as classified by the Constitution and given the definition of minority
status.
In disposing of the original jurisdictional issue Marshall was able to avoid most
of the other issues in Cherokee Nation, but he went on to address what he called the
case and controversy issue. Wirts tactic of applying for an injunction against the
state of Georgia asked the Marshall Court to do something similar to what the Court
had done in the Osborn case: grant an injunction preventing a state from enforcing
one of its own statutes covering a matter within its borders. The rationale for Osborn,
was the unmistakably federal character of the Bank of the United States and the
presumably ruinous effects of state laws imposing taxes on that bank. Here, if the
Cherokees were a foreign nation, the same rationale might seem to apply.42
33


Having found that the Cherokees were not a foreign nation, Marshall could
have avoided the issue altogether, but he concluded that a bill for injunctive relief on
these circumstances had not precipitated a case and controversy. The matter of the
bill, he argued, was not a proper subject for judicial inquiry. It not only asked the
Court to decide on the Cherokees title to their land, but also to control the legislature
of Georgia, and to restrain the exertion of its physical force. The Supreme Court
could not interpose, Marshall claimed, on state laws regulating the exercise of
self-government by Indians within that states borders. It might be able to decide
whether a state could infringe upon the possession of land by Indians, but only, as
noted, in a proper case with proper parties.43
Marshalls last argument seems to have been strategic in character, since it was
unnecessary to the decision of the case and Marshall made no effort even to discuss,
let alone distinguish, the Osborn precedent: It might also be inquired as
contemporaries at the time did, whether the enumeration of Indians in the Commerce
Clause was simply intended to make crystal clear that states could not negotiate
commercial treaties with tribes.44 However the focus here is on the implicit and
explicit judgments about natural rights and Indians made in the Cherokee Nation
opinion. That focus is best served by an examination not only of Marshalls opinion of
the Court but also of Johnsons concurrence, in which those judgments were more
starkly and crudely expressed.
34


Associate Justice William Johnson wasted no time in describing the state of
mind with which he approached the Cherokee Nation case. I cannot but think, he
said in the second page of his eleven-page concurrence, that there are strong reasons
for doubting the applicability of the epithet state, to a people so low in the grade of
organized society as our Indian tribes most generally are.45 While he did not want to
be understood by that statement as referring to the present form of government
adopted by the elite Cherokees that government certainly must be classed among the
most approved forms, he doubted whether even the Cherokee government had
received the consistency which entitles that people to admission into the family of
nations.46
Next followed a singular revelation of the assumptions republican theorists
made about Indian tribes in America. This can be seen in the following passage from
Johnsons opinion, an interaction of the stage theory of cultural change with the
perception that Indians were different:
It is clear that the treaties signed between the United States and the
Cherokees were intended to give the Cherokees no other rights over the
territory than what were needed by a race of hunters. But every advance, from
the hunter state to a more fixed state of society, must have a tendency to
impair those preemptive rights. The hunter state bore within itself the premise
of vacating the territory. But a more fixed state of society would amount to a
permanent destruction of the hope.
But it is said that we have extended to them the means and inducement
to become agricultural and civilized. It is true: and the immediate object of
that policy was so obvious as probably to have intercepted the view of ulterior
consequences. Independently of the general influence of humanity, these
people were restless, warlike, and signally cruel in their irruptions during the
35


revolution. The policy, therefore, of enticing them to the arts of peace, and to
those improvements which might lay desolate, was obvious; and it was wise ..
. to incorporate them in time into our respective governments. But their
inveterate habits and deep seated enmity has altogether baffled that policy.47
The Cherokees, being Indians, were restless, warlike, and signally cruel in
their hunter state. For practical reasons, and perhaps for humanitarian ones, elite
white America had hoped to usher them into the agricultural and civilized stage of
society. In the process the Cherokees had naturally lost preemptive rights to then-
land, because any permanent occupancy of land by Indians was inconsistent with the
sovereignty of the American government. Hope had originally characterized the
acculturation process: perhaps the Indians might become less warlike as their status
improved. However that hope, and the policy of acculturation itself, had been baffled
by the inveterate habits of the Indians.
Johnsons tendency to state his positions in as forthright a manner as possible,
coupled with the strength of his assumptions about the habits of Indians and their
tendency to resist acculturation, produced a powerful brief for the proposition that the
natural rights of Indians were largely ephemeral. Since Indians could not become
good republicans, Johnson implicitly argued, they could not be granted the inalienable
rights of republican citizens. They could not be civilized, thus they needed to be left in
a permanent hunter state, that is, dispossessed.
36


Given the implicit and explicit judgments made about Indians in both Johnsons
and Marshalls opinions, the second paragraph of Marshalls opinion requires
comment. Marshall said:
If courts were permitted to indulge their sympathies, a case better
calculated to excite them can scarcely be imagined. A people once numerous,
powerful, and truly independent, found by our ancestors in the quiet and
uncontrolled possession of an ample domain, gradually sinking beneath our
superior policy, our arts and our arms, have yielded their lands by successive
treaties, each of which contains a solemn guarantee of the residue, until they
retain no more of their formerly extensive territory than is deemed necessary to
their comfortable subsistence.48
That paragraph cannot simply be read as one of the standard disclaimers judges make
when they ultimately conclude that their sympathies have nothing to do with the
case. As his correspondence with Joseph Story suggests, Marshall was genuinely
touched by the plight of Indian tribes in America. While he believed white republican
policy to be superior, he also acknowledged that force had had a good deal to do with
the sinking of the Indians. In Johnsons concurrence there is the tone of self-fulfilling
prophecy: Indians get what they deserve because they are what they are. In
Marshalls paragraph the sympathies appear genuine.
This interpretation of Marshalls attitude toward the Cherokees is reinforced by
the events surrounding the publication of the Cherokee Nation opinions. When the
original decision was handed down, on March 18, 1831, no dissents were announced
or delivered. Nine days later the National Intelligencer noted that it had learned for
37


the first time that there were dissents in the case.49 The origin of those dissents helps
clarify the Chief Justice?s posture. The dissenters were Smith Thompson, who wrote a
long opinion disagreeing with the Court on both the jurisdictional and substantive
issues, and Story, who joined Thompsons opinion. In a May 1831 letter to the
Courts Reporter, Richard Peters, Story indicated that neither Judge T. or himself had
contemplated delivering a dissenting opinion in the Cherokee Nation case until the
Chief Justice had suggested to them the propriety of it, and his own desire that they
should do it.50 Peters, for his part, collaborated with Story, Thompson, and Marshall
in the publication of a pamphlet, The Case of the Cherokee Nation Against the State of
Georgia, which included, in addition to all of the opinions rendered in the case, James
Kents opinion supporting the Cherokees on the jurisdictional issues and the relevant
treaties and statutes. Marshall wrote Peters, I should be glad to see the whole case
made public, because a very narrow view has been taken in the opinion which is
pronounced by the Court. The opinions which had been delivered in court, he added,
looked to one side of the question only.51
Marshall, then, wanted the plight of the Cherokees made public, it is possible
that he did this to ease his conscious; he also wanted the substantive issues raised by
Georgias dispossession of the Cherokees aired. In short, he was anxious to keep the
Cherokee question in the public domain so that pressure for a proper case with the
proper parties would continue. He had, of course, intimated in his opinion that
38


Georgias sovereign powers over Indians within its borders were vast. However by
the end of the 1831 Term he may have retreated from that intimation. He was, after
all, no particular friend either to state sovereignty or to the Jackson administration.
Story, for his part, felt that the publication of the pamphlet would do a great deal of
good. It will unite the moral sense of our people, and sink to the very bottom of their
sense of Justice, he wrote to Peters. I am more satisfied, Story added, that we are
right. There will be, in Gods Providence, a retribution for unholy deeds.52
The Cherokee Decisions: Worcester v. Georgia
Retribution of a sort came the very next Term, in the case of Worcester v. Georgia.
One of the Indian laws passed by Georgia had been a statute forbidding white men
from residing in the Cherokee territory without a license from the state. Samuel
Worcester and Elizur Butler, two missionaries who had been living with the
Cherokees, were arrested in March 1831 for violating that statute. Worcester and
Butler were first released by the Superior Court of Gwinnett County, Georgia, a trial
court, which claimed that they were federal employees, who were exempt from the
law. Worcester and Butler continued to refuse to leave the Cherokee Nation, and
Worcester was eventually removed as postmaster of a local village in order to sever all
of his federal ties. Worcester and Butler were then arrested again, convicted in the
trial court of violating the statute, and sentenced to four years in prison. They were
39


offered a pardon, but refused it and appealed their case to the Supreme Court of the
United States on a writ of error, arguing that the Superior Court of Gwinnett County
was the highest court in the state in which a decision could be had in such a suit.53
Remarkably, the clerk of the county court responded to this writ of error, although the
judge never signed it. In so doing, a record was thus duly created in the case, and
while the state of Georgia never appeared before the Court, and publicly announced
that it would disregard any decree of the Court overturning the conviction. Worcester
v. Georgia appeared on the Courts docket for the 1832 term.
At least one Justices sympathies were already engaged when William Wirt and
Thomas Sergeant, representing Worcester and Butler, again challenged the
constitutionality of the Georgia statutes. On January 13, Story had written to his wife
that,
on his way to Washington for the Term he had stopped in Philadelphia and had
been introduced to two of the Chiefs of the Cherokee Nation, so sadly dealt
with by the state of Georgia. They are both educated men, and conversed with
singular force and propriety of language upon their own case, the law of which
they perfectly understood and reasoned upon. I never in my whole life was
more affected by the consideration that they and all their race are destined to
destruction. And I feel, as an American, disgraced by our gross violation of
the public faith toward them.54
Five weeks later, on February 20, arguments began. Story reported on February 26
that Wirts argument was uncommonly eloquent, forcible, and finished, and that
Georgia had again declined to appear. On the merits Storys position remained
40


unchanged. I confess that I blush for my country, he wrote, when I perceive that
legislation, destructive of all faith and honor towards the Indians, is suffered to pass
with the silent approbation of the present Government of the United States.55
Close observers of the Court might well have predicted that the Cherokees
would fare better in Worcester than they had in Cherokee Nation. William Johnson,
whose concurrence in Cherokee Nation had announced that Indians were nothing
more than wandering hordes, held together only by ties of blood and habit, and having
neither laws or government, beyond what is required in a savage state,56 was absent
because of ill health, while Gabriel Duvall, a close friend of Marshall, Story, and Wirt,
had returned. Storys and Thompsons support for the Cherokees was on record, and
Marshalls posture might have been surmised from hints in his Cherokee Nation
opinion. Thus when the decision in Worcester came down, on March 3, 1832, its
finding that the Georgia statutes were unconstitutional as applied to the Cherokee
tribes was probably not much of a surprise. Again, this is an attempt by Marshall to
apologize for not having done the right thing in the Cherokee Nation, but this is the
wrong case because Worcester is not an Indian issue, it is about whether Worcester is
released from prison. Marshall wrote for Duvall, Story, and Thompson. Justice John
McLean concurred in the result, but sought to distinguish himself from the apparent
limits the opinion of the Court placed on a states power to regulate the affairs of
Indians within its borders. While Justice Henry Baldwin dissented on the ground that
41


the writ of error was defective and announced that on the merits he continued to
believe that, Georgia could constitutionally dispossess Indians within its borders.
However he never delivered his opinion to Reporter Peters.57
Marshalls opinion in Worcester was a fascinating exercise in converting the
natural law argument to arguments based on the sovereign powers of the Union and of
his Court. The opinion was all the more fascinating because its tone, in contrast to
that of Cherokee Nation, was more sympathetic to the autonomy of Indian tribes and
less stigmatic in its characterization of the nature of Indians. A social role for Indian
tribes in America was cemented by the opinion, and in a sense that role was new: the
plight of the tribes was to be solved by making them wards of the federal government.
However their natural rights remained the same if existent in republican theory,
nonexistent in practice and their implicit options remained the same. They were to
be acculturated only if they could be civilized, and only a handful of individuals could.
Where they could not be civilized, they were to be dispossessed of their original lands
and made dependents of Congress and any supervisory federal agencies Congress
might create in the future.
In the major portion of his opinion in Worcester, after disposing of two
preliminary questions, whether the cases record was properly before the Court and
whether the Court could properly exercise jurisdiction over the case, Marshall, as was
his practice in cases he regarded as of the deepest interest, embarked upon an
42


analytical survey of history and associated jurisprudential principles.58 In an opinion
whose total length was twenty-six pages and one fraction of a sentence, history by
which Marshall meant the time between the earliest white settlements in America and
the framing of the Constitution, and associated principles occupied seventeen pages.
Of the remaining pages approximately six were devoted to the preliminary procedural
and jurisdictional issues, leaving about three pages for explicit constitutional analysis.
The structure of the opinion, then, was designed to make Marshalls familiar point that
attention to history and to the principles embodied in that history not only clarified
constitutional analysis, it went a long way toward disposing of the issues to be
analyzed.
At first glance the structure of Marshalls opinion in Worcester may seem
inconsistent with the previous suggestion that the jurisprudential purpose of the
opinion was to convert natural law or Lockian argument into a federal sovereignty
argument. This apparent inconsistency, moreover, might be reinforced by the
emphasis Marshall placed, in some passages in his history, on the original natural
rights of Indian tribes and the status of the tribes as distinct, independent political
communities.59 There is a hint in Worcester of an attitude toward Indians that more
resembles self-determination than paternalism, reflected in comments such as, the
early journals of congress exhibit the most anxious desire to conciliate the Indian
43


nations, and federal treaties treat the Cherokees as a nation capable of maintaining
the relations of peace and war.60
As Marshalls history in Worcester unfolds, one comes to realize that its
purpose is to contrast the idea of natural rights and self-determination with what
Marshall called principles suggested by the actual state of things. The Indian tribes
may have had natural rights from time immemorial, but those rights had yielded to
irresistible power. They may have once had cultural autonomy and political
self-determination, but they were now under the protection of the United States of
America. The situation of the Indians made them necessarily dependent. Power, war,
and conquest conferred rights in the conquerors which were conceded by the world.
One of the original objects of the white settlers was the civilization of the Indians.
However bloody conflicts and the fierce and warlike character of the Indians made the
civilizing process difficult, if not impossible.
Marshall then moved from this catalogue of the actual state of things to the
jurisprudential principles of Indian-white relations that were developed as a response.
The first was the familiar principle that the discovery of lands by whites yielded title to
the land, notwithstanding the original natural rights of Indians. Principle two was that
the relationship between the white discoverers and the Indians was one of superiority
and dependency. Principle three was that the government of the United States,
representing the discoverers, was responsible for the protection of the Indians, and no
44


other sovereign whatsoever bore that responsibility. Principle four was that the Indian
tribes, notwithstanding their dependency, were to be regarded as they had traditionally
been regarded: as independent sovereign nations. Marshall noted that treaties and
congressional statutes, passed both before and after the Constitution, manifestly
considered the several Indian nations as distinct political communities, having
territorial boundaries within which their authority is exclusive. The Constitution had
ratified this judgment. Even the state of Georgia had originally recognized the
principle.
Now Marshall moved to principle five, that the whole intercourse between the
United States and the Indian nations is, by our constitution and laws, vested in the
government of the United States.61 This was a bold step, and he gave only cryptic
reasons for it. He was now squarely into the portion of his opinion dealing with the
precise constitutional issues raised by the case, and he was not inclined to linger over
those issues. The actual state of things and history, he repeated, had laid the
groundwork for his fifth principle, the principle of exclusive federal power to regulate
Indian affairs. Settled principles of our constitution had committed the regulation of
relations between the United States and the Cherokee nation exclusively to the
government of the union.62
What were these settled principles? Marshall only referred, once more, to
treaties and acts of congress. Did he mean to suggest that in passing statutes such as
45


that of 1819, which sought to introduce among the Indian tribes the habits and arts of
civilization by authorizing the president to employ teachers to instruct the tribes in the
mode of agriculture suited to their situation, was Congress therefor regulating
commerce among the tribes? If so, this was an extraordinary reading of the commerce
power; if not, he had previously conceded in Gibbons v. Ogden that the unexercised
existence of federal power to regulate commerce did not preclude the states from
acting in areas where Congress had not intervened. Did he mean that treaties between
the Indians and the federal government, which arguably recognized the sovereignty of
Indian tribes, had created something likened to that of vested rights in those tribes?
Marshall said that the Georgia statutes were in direct hostility with treaties which mark
out the boundary that separates the Cherokee county from Georgia and guaranty to
the Cherokees all the land within their boundary. However, Worcester was not a
property case, and it was not an Indian case either, it was an issue of releasing
Worcester from prison. Georgia had imprisoned Samuel Worcester for residing within
the borders of the Cherokee Nation and for preaching the gospel in an effort to
facilitate the civilization and improvement of the Indians. Marshall admitted that the
Georgia courts judgment against Worcester affected personal liberty, not property.
Ultimately, then, Marshall based his finding that the Georgia laws were
unconstitutional on settled principles embodied in treaties and acts of congress, and he
characterized those treaties and acts as products of the actual state of things and
46


history. The principle of exclusive federal control over Indian affairs, a principle
elevating the sovereignty of the union over the states had been derived principally from
two extra-constitutional sources: the reality of Indian-white relations in America and
the apparent recognition of that reality by federal law. The original natural rights of
Indians had disappeared as a source of law: in their place had emerged another
argument for the proposition that the Constitution placed severe restrictions on the
sovereignty of the states.
At the very end of his Worcester opinion Marshall summarily disposed of the
question whether the Supreme Court could review the acts of a state legislature by
citing Cohens v. Virginia. In a sense the Cherokee cases had been a repetition of
Martin, Cohens, and the sovereignty battles of an earlier phase in the Marshall Courts
history. The fact that the Court had not been unanimous in either Cherokee Nation or
Worcester testified to the internal changes a decade had produced, but from a
sovereignty perspective the result was the same: a state had defied the Court and had
been decisively rebuffed. There were, however, two ironic twists in the aftermath of
the Cherokee cases that distinguish them from the earlier sovereignty cases. The first
emanated from the fact that the Cherokee cases were racial minority cases as well as
sovereignty cases; the second from the fact that the executive branch of the federal
government, that is, the Jackson administration, in their own way supported the
47


defiant state in its confrontation with the Court. The expectation was that Jackson
would support the judicial decision but this did not occur.
With the delivery of Marshalls opinion in Worcester, the Cherokees could
claim that in their struggle with Georgia they had emerged as the winners. The
autonomy of their boundaries had been recognized; they had been removed from the
control of the state of Georgia; their nation, with its unique constitution, laws, and
practices, had been preserved. However what followed from this victory? The
Cherokees, and other Indian tribes, became in effect wards of the federal government.
The officials of that government were acknowledged to have the power to do what
Georgia had done: place Indians in the position of abandoning their cultural heritage
becoming civilized or being dispossessed of their land and forced to emigrate. Being
wards of the government did not mean that Indians in America would have more
freedom or more respect. Their plight, ostensibly solved, remained essentially the
same.
Thanks be to God, Justice Story wrote his wife after Worcester, the Court
can wash their hands clean of the iniquity of oppressing the Indians, and disregarding
their rights. The Cherokee cases, he felt, had been an oasis in the desert of the hard
and dry 1832 Term.63 However, after Georgias Indian laws had been rebuffed by the
Court, engendering, Story reported, that there was anger and violence in the
Georgia delegation in Congress, the federal government simply stepped in and itself
48


continued the policy of dispossession. With Jacksons 1830 removal legislation in
effect, the federal government began to enter into agreements with southeastern tribes
for the cession of their lands. The Creeks, Choctaws, and Cherokees were all forced
into signing such treaties, in which the federal government provided them with lands
west of the Mississippi. While the treaties gave civilized Indians the option of
remaining on allotted land, federal policy contributed to the speedy resale of allotments
to white settlers and speculators. Even though most Indians preferred not to emigrate,
the federal government assumed that they would, and failed to scrutinize sales in which
the Indians were severely disadvantaged. Fraud, chaos, and the degradation of
southeastern tribes resulted from the governments regulation of Indian affairs. A
bleak future beckoned for most Indian tribes: confinement to federal reservations and
the consequent legitimization of their dependent status.
Meanwhile, the second irony of the Cherokee cases emerged. While Jackson
was to hold for the entire course of his presidency the belief that the Cherokees lived,
in the midst of a superior race and, without appreciating the causes of their inferiority
or seeking to control them, must yield to the force of circumstances and ere long
disappear, events coinciding with the aftermath of the Worcester decision resulted in
his forging an odd alliance with the Court.64 Eight months after Worcester was handed
down, Andrew Jackson, having made considerable political capital out of his veto of
the Second Banks charter, decisively won re-election. Georgia, meanwhile, had taken
49


no action to comply with the Courts directive to release Worcester and Butler, who
remained in prison. Jackson had suggested previously that he would take no action to
enforce the Courts directive in Worcester, noting in correspondence that the decision
had fell stillborn, and in another debated response, Jackson had supposedly said, that
Marshall had made his decision now let him enforce it.65 In the same month of his
re-election, however, the South Carolina legislature voted not to comply with a
protectionist federal tariff on the basis of the nullification doctrine. In other words the
state of South Carolina chose to ignore the enforcement of a federal law within its
limits.
This nullification controversy, when coupled with the Worcester decision,
placed the Jackson administration in an extremely awkward position. The federal
government could hardly ignore the sovereignty implications of Worcester and at the
same time insist that South Carolinas action was heresy. The Cherokees had one
more stratagem at their disposal, and the Jackson administration knew of that
stratagem. Wirt and Sergeant could inform the Court, at the opening of the 1833
Term, that Georgia had refused to comply with its mandate to release Worcester and
Butler, and ask the Justices to certify the refusal and notify the president of the United
States. On receipt of that notice Jackson would have had a constitutional obligation to
take Care that the Laws be faithfully executed.66
50


Not only was the Jackson administration pressured by these developments, so
were the elite Cherokees as well as Samuel Worcester and Elizur Butler. If the
missionaries insisted on Wirts and Sergeants appearing before the Court in the
second week of January 1833, influential Georgians informed them, Jackson would
have to enforce the Courts decree. Georgia might declare the federal treaties and
statutes pertaining to the Cherokees null and void, and other southern states, Alabama
and Mississippi were singled out, might support Georgia and South Carolina. The
result, according to these Georgians, might be secession, justified on the basis of the
nullification doctrine, and civil war. They argued that Worcester and Butler should
abandon their appeal and ask the governor of Georgia for a pardon, which they
intimated would be granted.
The elite Cherokees, on the other hand, argued that for Worcester and Butler
to ask Governor Lumpkin for a pardon would be to admit that Georgia and other
states did, in fact, have the authority to regulate Indian affairs within their borders.
That admission, the Cherokees claimed, would not only undermine the autonomy of
Indian tribes but also legitimate the sovereignty arguments implicitly advanced by
Georgia in Worcester. The legitimization of those arguments would be as dangerous
to the Union as the enforcement of the Courts mandate by the Jackson
administration.67
51


Worcester and Butler first resolved to press their appeal, and on November 26,
1832, informed Lumpkin to that effect. However eleven days later they changed their
minds, and informed their missionary superiors that they intended to seek a pardon
from Lumpkin. After some debate, and delays precipitated by the mails, they received
approval to do so, and on January 8, 1833, wrote Wirt and his co-counsel directing
them to abandon the appeal.68 Six days later they were pardoned by Lumpkin and
released from prison. On January 16, two days after the missionaries release, Jackson
sent a message to Congress requesting that he be authorized to compel South Carolina
to disclaim the nullification doctrine and comply with the tariff.
On January 20 and 27, Joseph Story wrote two long letters to his wife. The
Courts 1833 Term had opened on the fifteenth, he said, and all the judges save
Baldwin, who was hospitalized in Philadelphia with an emotional disorder, were
present and in good health. Marshall had presented each of his colleagues with a copy
of his biography of Washington, released in a new edition. The pace of the Court
was slow, and he and Marshall had gone to the theater to see the celebrated British
actress, Fanny Kemble. Marshall had been cheered in a marked manner on entering
their box, and Kembles performance had thrown the whole audience, including the
Chief Justice and himself, into tears.69 Ten days later, on the twenty-fifth, the Justices
were invited to dinner at the White House. Story summarized their visit:
52


We dined with the President at a fashionable hour half past seven. There were
several ladies at the table, and of course I was called on, as one of the Court,
to hand a lady to table.
We are on the eve of great political excitements. The debate on the bill
reported in the Presidents late anti-nullification passage will be the cause.
I forgot to say, that notwithstanding I am as Jackson has said the most
dangerous man in America, the President specially invited me to drink a glass
of wine with him. But what is more remarkable, since his last proclamation
and message, the Chief Justice and myself have become his warmest
supporters, and shall continue so just as long as he maintains the principles
contained in them. Who would have dreamed of such an occurrence?70
In his concurrence in Worcester v. Georgia Justice McLean had declared that
the abstract right of every sector of the human race to a reasonable portion of the
soil, by which to require the means of subsistence, cannot be controverted. The law of
nature, McLean announced, is paramount to all other laws.71 Expressions of this
kind had been linked, in the Marshall Courts slave trade and Indian decisions, with
results that suggested that such talk was empty. The natural rights of slaves to their
liberty and their recognition as human beings had been qualified by their condition.
Slavery was against the law of nature, but sometimes the law of nature had to yield to
established practices. The natural rights of Indians to the possession and use of their
land extended only as far as the federal government chose. The cases, taken together,
affirmed a stark proposition: in the case of racial minorities whose character or
condition made their amalgamation into white society precarious, natural rights
principles simply did not apply in their full force. Natural law, or in this case the basic
53


rights of a people, was not only not paramount to all other laws in such cases, it had
very little force.
The Courts reduction of the natural law argument to a moral exhortation, and
its consequent abandonment of that argument as an independent source of law in cases
involving racial minorities, played a part in the eventual undermining of unwritten
natural law as a commonly held source of nineteenth-century American jurisprudence.
Between the 1830s and the 1840s, for example, even radical antislavery
constitutional theorists moved from a position that identified natural law as antecedent
and superior to the American Constitution to a position that distinguished between
natural and municipal law, and conceded that only the latter was a binding source of
authority in American courts.72 The Marshall Courts decisions provided grounds for
that concession. Racial minorities received a message from the Marshall Court that
they were to receive repeatedly in the subsequent course of American history: liberty
and equality in America have been regularly contingent on whose freedom and whose
equal treatment is at issue. The equally stark message of American jurisprudence is
that natural law had no meaning as a set of abstract, extra-constitutional principles of
justice. By the 1830s, as not only the slave trade and Indian cases but also the
Contract Clause cases demonstrated, the concept of an unwritten Constitution, and
the larger concept of an unwritten body of principles embodying reason, justice, or the
54


nature of things, had been reduced to a marginal existence in American
jurisprudence.
55


CHAPTER 2
ROGER B. TANEY AND THE ISSUE OF INDIAN CITIZENSHIP
John Marshall died in 1835. His successor was Roger B. Taney. As Chief
Justice he took up the issue of the citizenship rights and the Indian in the cases of
United States v. Rogers, in 1846, and Dred Scott v. Scmdford, in 1857. To some
observers of the Court, the Dred Scott case would be looked upon as the defining
issue of Taneys term of office. To others such as Gideon Wells, the very vocal
Secretary of Navy, in the Lincoln cabinet, Taneys purpose as Chief Justice is void, he
is the antagonist of this, ungodly war, or at least the man responsible for the Dred
Scott decision.1 A follower of administration policy Taney was pleased by his
nomination in 1836 by President Andrew Jackson, despite an initial thrashing in the
Senate, but then again it was no different than what had happened to Marshall when he
was brought up for nomination in 1801. Also, although Marshall thought of Taney as
an excellent choice as an associate justice in 1835, replacing the then retiring Gabriel
Duvall, Marshalls choice to succeed himself if he had made it, would have been his
friend Joseph Story. Story, unlike Taney, had been a close friend and confidant of the
late Chief Justice, and to some extent carried the same strength of his personal
56


convictions, and insight if not more so as to the complexity and place of the judiciary
on the effect of Indian policy.2
The legal foundation for the United States to encroach into Indian territory had
been laid down by John Marshalls ambiguous language in Johnson. So long as the
Indian nations were domestic dependent nations, they were subject to some measure
of federal authority, but Marshall had given no hint as to the legal framework for that
relationship. United States v. Rogers was the first US Supreme Court decision on
Indian rights following Worcester. The case precisely addressed the issue of how
much authority the federal government retained in the Indian territory. William
Rogers, a white man, who had married a Cherokee woman, was adopted into the
Cherokee nation, and had been living with the tribe for nine years. It was determined
in the case that Section 25 of the Indian Trade and Intercourse Act of 1834 gave the
United States jurisdiction for the punishment of crimes in Indian country, but
expressly provided that such jurisdiction shall not extend to crimes committed by one
Indian against another.3 This Act will be examined again in Crow Dog. When
Rogers was indicted in federal court for the murder of another white man who had
also become a citizen of the Cherokee nation, he argued that the federal court lacked
jurisdiction because the crime was between two citizens of the Cherokee nation.
The statute left the courts of the United States to determine whether Rogers
was an Indian. Chief Justice Taney seized on the domestic dependent condition of
57


Marshalls opinion, and held that the Cherokees were not an independent nation, but
their lands were under the power of the United States. Thus Rogers had committed
his crime within the United States. As though this limitation on the political
sovereignty of the Cherokee nation was not dispositive, Taney further included a racial
limitation on the issue of Cherokee sovereignty. Taney explained, that Rogers could
not become an Indian under US law, because the status referred to in the act was not a
national status activated by the political process of the Cherokee nation. Rather it was
a racial status: while the white man might acquire some privileges in an Indian tribe
and in return be under tribal law for some purposes, he is not an Indian.4
Taneys logic behind this case had other implications as well. It established the
right of the federal government to limit Cherokee sovereignty within the Cherokee
nation. The Cherokees could recognize Rogers as a citizen for the purposes of
conferring the benefits of tribal membership on him, but Cherokee citizenship did not
alter Rogers status as a white man and a US citizen. The relationship that Taney
defined between federal and tribal authority, based on the Indian Trade and
Intercourse Act, holds through to the present day. Tribes in Indian territory might
have authority over Indians within their lands, but the United States has authority over
whites, as well as the right to determine who belongs to which racial category.5
Therefore, two criminal jurisdictions coexisted side by side in Indian country with the
58


United States exercising the power to determine which people fell under the guidelines
of each jurisdiction.
DredScott v. Sandford had been docketed for argument in December of 1855,
and although the particulars of the case itself are not what is at issue, some
background information is needed. The case involved the issue of citizenship status,
of a slave named Dred Scott, and through this was the questionability as to his
servitude having established residence in a free state. The Dred Scott case had reached
the floor of the Court for debate on February 11, 1856, and on March 6, 1857, in a
vote of seven to two, a decision was reached which explained that Dred Scott was still
a slave, and thereby had no right of citizenship.6 However, in several instances
throughout the case the issue of citizenship and the Negro was consistently
associated with the topic of Indian citizenship status. The definition of this status for
both groups was determined differently by both Montgomery Blair who was council
for Scott, and the two attorneys for the plaintiff, Senators Henry S. Geyer and
Reverdy Johnson. However it would Taney, who would not only separate the issue
between the two groups, but through his ambiguity in the language of his decision,
would place the relevance of Indian citizenship on Congress.
During Blairs presentation before the court, he rejected the argument against
Negro citizenship as drawn from the Federal immigration laws, which limited the
right to become citizens to alien whites, as not being in parimateria. It confused, he
59


said, emancipation with naturalization, which were two separate legal processes, and
to do so would be a dangerous mistake to confound. To remove the disabilities of
alienage, a function of the Federal government, was not the same as removing the
incapacity of slavery, a matter which depended wholly upon the internal regulations of
a state. Naturalization, Blair continued, was not restricted to whites by the
Constitution. As a matter of fact, he pointed out that it had been extended repeatedly
to Indians and free Negroes.7 Although Blair had not explained to the court in which
States this action had taken place, it is. my belief that he misunderstood certain state
laws. For example the Georgia Indian laws, only looked at the issue of being civilized
for the purposes of land allotments. It did not automatically make those Indians who
held land United States citizens. Blair then cited numerous treaties with various Indian
tribes, the Treaty of 1803, by which Louisiana had been acquired, the Adams-Onis
Treaty of 1819, by which Florida was secured for the United States, and the Treaty of
Guadalupe-Hidalgo of 1847 in which California and New Mexico were ceded to the
Union. In these three treaties, provisions had been made that the inhabitants of the
ceded lands should become citizens of the United States and among these inhabitants
were many free Negroes and Indians.8 However, although these treaties did give
citizenship to the inhabitants of the ceded lands that citizenship had followed the
dictates of the Constitution which is limited, and in no way included the Indian tribes
that were there, let alone freed Negroes.
60


Senator Geyer replied for Sanford, and began by discussing the topic of
Negro citizenship. Scott, he said, was a Negro who was bom a slave. Whether
he was free or not, he could not be a citizen of the United States. To be a citizen a
person had to be a citizen of the State in which he resided. To be a citizen of the
United States a person had to be bom as such or naturalized. All persons bom in the
United States however were not its citizens. Indians were not and neither, in general,
were persons of color.9 Geyer cited numerous cases which had decided that Negroes
and for that matter Indians were not citizens to the extent of being entitled to all the
privileges and immunities as guaranteed to citizens by the Constitution. In this
instance Geyer was incorrect in citing numerous citizenship cases that involved the
Indian, for the only case that came before the court that tactiled such a question was
United States v. Rogers. Geyer finished by saying that freed Negroes like Indians
were not bom citizens of the United States. They could not be naturalized, and they
did not become citizens by manumission.10 So the lower court had erred in taking
jurisdiction, on the grounds that Scott was a citizen of Missouri and thereby a citizen
of the United States.
The Dred Scott case would continue to hold future implications, as it was
relied upon time and again as a determiner of Indian citizenship status. As late as 1879
US government officials argued, that Indians were not even persons entitled to a writ
of habeas corpus, citing Dred Scott, as the Supreme Court case that held that both
61


blacks and Indians were an inferior class of person unable ever to be citizens of the
United States. The case is revealing in the respect that Taney distinguished Indians
from blacks doctrinally. Before this, the earliest the court ever attempted to do was
when he had dealt with the issue of Indian citizenship status in Rogers in 1846. In this
case Taney had simplistically followed John Marshalls domestic dependent nations
analysis, but had rejected the notion that the Cherokee was a foreign nation,
emphasizing the tribes dependent status. He also racialized the political nature of
Indian sovereignty. In essence he had ignored this reasoning, distinguishing Indians
from blacks by stating that, Indians were in law equivalent to foreign nations and
when the government extended citizenship it did so by its power to naturalize
foreigners.11 Later in the opinion Taney forgot this distinction, referring to blacks as
this unfortunate race, this was the same phrase he had used to refer to Indians in
Rogers.
In Taneys decision, he referenced the question of Indian citizenship status
quickly and succinctly in Dred Scott, when he distinguished free Negroes from
Indians, defining Indians as people that could be naturalized by Congress if Congress
chose to do so. He then emphasized this difference by distinguishing the Negro
from those citizens who composed the body politic. Both groups were designated in
the Constitution as the people of the United States or synonymously, citizens.
Free Negroes, however, were not members of either group, and consequently they
62


could claim none of the rights and privileges which the Constitution guaranteed to
citizens of the United States. Not only were free Negroes not citizens, but at the time
the Constitution was adopted, they were considered as subordinate and inferior class
of being, and had no rights or privileges but such as those who held the power and the
government might choose to grant them.12 The justice or injustice, policy or
impolicy, of these laws, Taney said, was a matter which those who formed the
sovereignty and drew up the Constitution had decided. The Court but interpreted the
document they framed according to its true intent and meaning.13 To his mind, it
would be a perversion of terms to say that slaves, free blacks, or Indians, were
citizens, within the meaning of that term, as used in the Constitution.14
Although Taney did explain in Dred Scott that Indians could be given
citizenship by an act of Congress, at the time he made no move to suggest that any
governmental branch should be so moved to do so, he continued to rely on Rogers to
support his view. Taneys personal letters seem to suggest that he harbored a private
belief that it was neither the right to vote nor mere birth in a state that constituted the
right of citizenship. The Chief Justice was all too clear in explaining that only citizens
in the highest political sense constituted civil and political authority, and that the
Indian did not fall within such a definition. Taney also expressed his viewpoint in
relationship to sovereignty in regards to the question of Indian citizenship.
Sovereignty, for Taney, resided in the people of the United States who had
63


expressed their will that it be divided between a national and various local
governments. Dual sovereignty was the intention of the people, and it was the
function of the representatives of the people in all the branches of government, to
fulfill the peoples intention. Neither the State governments nor the national
government were to be allowed to aggrandize themselves at the expense of the
other.15 Dual sovereignty implies duel citizenship, for the Indian to want Tribal
Sovereignty, while being given sovereignty as a domestic dependent nation under the
guidance and responsibility of the United States was not in Taneys view the same
thing. The states, Taney explained, were to decide the question of state citizenship
for themselves; but they were not given the right to determine who were citizens of the
Union and who were not, since the adoption of the Constitution, it was not in the
States power to admit new member into the body politic.16 In essence, residence in a
state did not automatically imply federal citizenship, and it was not within the
jurisdictional boundaries of the states to give that privilege to the Negro, or the
Indian. That responsibility was for the Congress to provide through the dictates of the
Constitution.
This leaves little doubt that Taney in his decision in Dred Scott, settled the
issue of Indian citizenship status by explaining that it was to be left up to the
responsibility of Congress. Taney himself made no move to turn this case into either a
reversal of Rogers, or of turning this case away from the issue presented in Dred Scott.
64


However, in making such a statement he in no way intended to give instruction that
Congress should consider such a course of action. Again, Taneys own
correspondence does not lead one to believe that he intended Congress to take any
such approach. First of all, he knew that Congress had no intention of even debating
the issue, the consequences of which would be extremely alarming for the rest of the
country if the Indian Nations were granted such status, and in fact, Indian peoples
were not looking for such an honor. I believe that he was perfectly comfortable in
maintaining the status of the Indian just the way it was, and only brought up the issue
in his decision to separate it from the case of Blacks as quietly as possible. For the
rest of Taney s life, and thereafter, the name of Dred Scott would always be associated
with Roger B. Taney, but as for his furthering the course of defining the status of the
Indian he, like Marshall, did not overextend the confines of the status of the Indian in
his decisions. As for Taneys comparison to Marshall, that can be best summed up
through the letters of Senator Charles Summer, still angered by the fact that his old
law teacher Joseph Story had not been selected for the post of chief justice, when he
wrote in 1836: How he will hold the great scales that Marshall bore aloft remains to
be seen! Perhaps upon him, who entirely deserved the place and was neglected, the
duties will in the main fall.17
65


CHAPTER 3
SALMON P. CHASE AND INDIAN TRADE AND COMMERCE
After Taneys death in 1864 the mantle of Chief Justice of the Supreme Court
fell upon the 56 year old Salmon P. Chase of Ohio, an appointment of Abraham
Lincoln, and the first Republican to hold the position. The only litigation that involved
Chase, although he did not deliver the majority decision in it, was the case of Cherokee
Tobacco, in 1871 which was a action that involved a jurisdictional issue over trade and
commerce within Indian territory.1
In Cherokee Tobacco, the court again attempted to clarify the legal status of
the five civilized tribes. What this case did in actuality was to extend federal power
over the Indian nations, through a completely different legal basis. The background to
this case was based on a federal tax passed in 1868 on distilled spirits, fermented
liquors, tobacco, snuff, and cigars produced anywhere within the exterior boundaries
of the United States. A number of speculators, both Cherokee and white, in order to
evade this tax began to produce tobacco in the Cherokee nation, convinced that it was
not in the boundaries of the United States.2 The resulting lawsuit brought forth by the
United States government, presents a striking parallel to the original attempts of
Georgia to extend its jurisdiction over the Cherokee Nation in the 1830s. The
66


Courts majority decision in Cherokee Tobacco, or Two Hundred and Seven Half
Pound Papers of Smoking Tobacco v. United States, was delivered by Associate
Justice Noah H. S wayne, and relied extensively on Chief Justice Taneys language in
Rogers. It held that the Cherokee nation was within the limits of the United States.3
Associate Justices Joseph Bradley and David Davis dissented believing that the
Cherokee territory was not under the jurisdiction of the United States. Since Congress
had the power to pass laws specifically affecting the Cherokee Nation and had done so
at other times, they argued, that the Indian nations were in all ordinary cases
autonomies and did not fall within the general laws of the United States unless
expressly mentioned. Whatever the external status of these nations, there can be no
question of their internal status: they exercised complete internal sovereignty.4
Although the court did rely heavily on the Marshall cases, mainly those of
Cherokee Nation v. Georgia, and Worcester v. Georgia, as for Chases influence he
was conspicuously not involved in the writing of the majority decision. However,
despite the author of the opinion of the Court, the personality and viewpoint of Chase
was felt throughout.5 Chase held extremely obvious prejudicial attitudes towards the
Indians in general and the Cherokee Nation in particular. This prejudice stems from
Chases consideration that the Indian was a mere savage, and his hatred of the
Cherokee Nation was due to its involvement during the Civil War on the side of the
Confederacy.6 Chase gave little credence to the fact that it was only a minority of
67


Cherokees that joined the Confederate cause, the overwhelming majority sided with
the Union in both a civilian and military capacity.
It is important to note that two things occurred during this time period which,
although they did not directly involve the issues in Cherokee Tobacco, they indirectly
involved the question of which branch of the federal government controlled the
guardianship status over the Indian. In 1866, Congress provided the court with
sufficient independence to make it a court in fact as well as in name.7 This gave
sanction and authenticity to judicial decisions especially during this pivotal era when
Congressional Indian policy, that of removal, and relocation, were in the resurgent, but
this was just a paper tiger. Previous to Cherokee Tobacco, Congress provided for two
new laws that drastically changed both judicial interpretation of Indian policy as well
as Indian wardship. On March 3, 1871 came the Appropriations Act which grew out
of a long-standing dispute between the Senate and the House of Representatives
regarding control of Indian Affairs. The Act itself said that no Indian nation or tribe
within the territory of the United States shall be recognized or acknowledged as an
independent nation, tribe or power with whom the United States may contact by
treaty.8 This legislation indicated that Congress was in turmoil over the relative power
of the House and the Senate regarding Indian policy. Granted the place of the
Judiciary is designed to interpret law in light of the Constitution, but by its own
presence it should have enforced its decisions and allowed for judicial review and
68


debate on the legality of Congress to issue such laws, that by their own language
placed the Indian at the whim of Congress, both in definition, policy, and in the realm
of the establishment of citizenship.
As for Chase, although Cherokee Tobacco, did not provide his opinion in this
particular decision, he like his successor, Morrison R. Waite, was more concerned
with the Court, in that their contribution was a continuance of the preservation of the
legislative power of Congress over judicial power. Salmon P. Chase had a determined
mind and was always strong in displaying religious and moral convictions. His mind
may have been initially on his duties as Chief Justice, but his ambition soon returned to
the unachievable goal that would haunt him throughout his life, that of becoming
president. Chase died of a stroke in New York City on May 7, 1873.
69


CHAPTER 4
MORRISON R. WAITE AND WHO HOLDS RESPONSIBILITY FOR THE
INDIAN
As I have mentioned, Chief Justice Morrison R. Waite like his predecessor, had
the distinction of preserving legislative power, but unlike his predecessor, Waite
refused to use the dignity and prestige of his office for political purposes, specifically,
by making himself unavailable for the Republican presidential nomination in 1876.
Waite was President Ulysses S. Grants third choice for Chief Justice having been
unsuccessful with two previous nominees in the Senate in 1874. Waites confirmation
came without enthusiasm but without objection. Although he possessed great legal
talent, he was probably the most colorless figure ever to occupy the position of Chief
Justice.1
As Chief Justice he presided over four major cases that would define, and
support legislative decisions regarding Indian policy. Although in the case of Ex Parte
Crow Dog, (1883), there were shades of the Court maintaining the delicate balance
between Indian sovereignty and federal legislation, this was only an aberration of
judicial interpretation in Indian affairs. The four cases involved issues ranging from
commerce and trade such as in United States v. Cook in 1874, to voting rights and
70


citizenship status as in Elk v. Wilkins in 1884, to the validity of Congresss Major
Crimes Act in United States v. Kagama in 1886.
In the first case, United States v. George Cook in 1874, which was a case over
whether logs cut by the Oneida Indians who were living on reservation land, were sold
illegally to whites, in this case George Cook. The arguments in the case began on
March 19, and a decision was delivered on May 4 of the same year. Waite, who
delivered the unanimous opinion of the Court, sided with the Federal Government,
basing his decision in part On the results of Cherokee Tobacco. What he did, in
essence, was to further establish the federal governments primacy in Indian territory.
He also related the case to Marshall, in McIntosh v. Johnson when he explained that
the only right that the Indians had to the land, from which the logs were taken was
only that of occupancy, and that everything on the land belonged to the federal
government. That they, the Indians, had no power of alienation except to the United
States. The agreement with the United States only involved the subject, and the right
of occupancy. This is the only title by which other Indians were allowed to hold
access to their land.2 This was the preamble to the decision as provided by the Court,
in a case that involved the selling of lumber by Indians who lived on property owned
by the Federal government to whites, which in this case was the defendant George
Cook.3 For its part, the United States wanted either the money that was provided for
the sale of the trees, or the trees returned to the federal government. The question to
71


be answered that underlines the specifics of the case was who owned the land and
thereby who held the right of occupancy, the federal government or the Indians. The
chief Justice concluded, in his decision that:
the Indians having only the right of occupancy in the lands, the presumption
was against their authority to cut and sell the timber. Every purchaser from
them is charged with notice of this presumption. To maintain his title under his
purchase it is incumbent on the purchaser to show that the timber was
rightfully severed from the land.
That the United States maintain an action for cutting and carrying away
timber from the public lands was decided in Cotton v. United States, 11
Howard, 229. The principals recognized in that case are decisive of the right
to maintain this action.
The answer of the court, therefore, to the question propounded by the
Circuit Court, is in the Affirmative.'1
The resulting decision in Cook, caused considerable confusion over the issue as
to the extent of tribal property interests relative to the interests of the United States.
This case dealt with the limitations of Indian rights as beneficial owners of the land to
cut and sell their timber, and the prerogatives of the United States, as holder of legal
title, to protect the land, thus giving to them the right to protect, and/or jurisdictional
control over everything on the land including the timber. However, because the
emphasis in this case was on the topic of the governments right to pursue legal
remedies to the questions of who had ultimate control over these ceded properties, the
benefit and protection of the tribes interests became the responsibility of the federal
government. This case was ambiguous, and the decision in it implied that the tribes
held no property interests on reservation land. In essence, the decision on its own face
72


left the door open for the government to extinguish all Indian title and ownership
rights of the land that was previously acknowledged by the federal government. This
would be an issue that would not be settled until 1938 with United States v. Shoshone
Tribe of Indians.
It would be nearly ten years before the next major case involving Indian status
and policy would come before the Court. Ex Parte Crow Dog was delivered on
December 17, 1883. This time the opinion of the Court was not delivered by Waite,
but by Associate Justice Stanley Matthews. Also, this was the first major case in
which there was no reliance on the Marshall trilogy, in fact it held more of an
association with United States v. Rogers. The case involved the issue of murder
between two Indians on Indian land, or in this instance an Indian reservation. The case
asked the question of whether or not federal legal jurisdiction crossed the boundaries
of reservation land and was applicable to Indians. The case also raised the issue of the
degree to which tribal sovereignty remained intact. The case involved a Brule Lakota
(Sioux) chief, Crow Dog, who was sentenced to death for the murder of another chief,
Spotted Tail, with whom he had long-standing acrimony. The death of Spotted Tail
was addressed under Lakota law, with Crow Dog compensating Spotted Tails family
with several horses, blankets and money in an effort to restore balance in the Lakota
community after Spotted Tails murder.5 However the matter did not end there.
Crow Dog was captured by reservation agency police, tried and sentenced to death by
73


the First Judicial District Court of Dakota Territory. Crow Dogs lawyers brought suit
for release, on the grounds that the Federal Court had no jurisdiction over crimes
committed in Indian country between two Indians, as stated in the Indian Trade and
Intercourse Act of 1834. The Supreme Court in its decision upheld Crow Dogs
petition saying that: It results that the First District Court of Dakota was without
jurisdiction find or try the indictment against three prisoner, that the conviction and
sentence are void, and that his imprisonment is illegal. The writs of habeas corpus and
certiorari prayed for will accordingly be issued.6
The Court upheld Rogers, and thereby maintained tribal sovereignty.
However, inadvertently, the Court upheld Marshall in Worcester v. Georgia as well.
In Worcester, Marshall had in essence reversed Cherokee Nation by saying that the
Cherokees were free from state jurisdiction. Granted in Ex Parte Crow Dog, the
issue was about territorial jurisdiction, backed by the legal remedies of the federal
government. However this case does provide insight into the question of whether or
not the court believed that except for the legality and subsequent decisions on trade
and commerce whether the federal government held any jurisdiction on the Indian
once inside reservation territory. I believe that here are the last vestiges of the
Supreme Courts authority in having any say in Indian policy, and in upholding the
Marshall decision, of the Indian as being a domestic dependent nation. It seems that
the Indian as far as the Court was concerned stayed within the boundaries of their
74


reservations as prescribed by the federal government, they had some sense of
autonomy, and thereby maintained sovereignty from Federal jurisdiction, thus leaving
the Indian within the parameters as set forth by the Marshall trilogy placing the
Indian under the continued trusteeship of the Supreme Court.
Elk v. Wilkins, was the next Indian case to come before the Waite Court, the
court delivered its decision on November 3, 1884. The decision itself involved the
case of John Elk, who was a member of the Winnebago tribe, and had voluntarily left
the reservation, taking up residence with whites in Omaha, Nebraska in 1879. In 1880
he attempted to vote thus invoking what he believed were to be his rights of
citizenship, rights that had been extended to Black Americans through the 14th and 15th
Amendments to the United States Constitution.7 Because he was denied this right,
John Elk sued to obtain his right to vote through federal court. The Supreme Court
decided in Elk v. Wilkins, that the main issue before the Court was the definition of
citizenship in the United States, as directed by the 14th Amendment, and whether, or
not that right extended to John Elk in general, but extended to all Indians in particular.
Perhaps the restrictive interpretation on citizenship for Indians could be explained
because the court had not yet fully analyzed and announced the doctrine of far-
reaching federal guardianship, control, and jurisdiction over Indians that was
articulated in a host of cases beginning with United States v. Kagama,8 However,
denial of citizenship under the 14th Amendment could be sustained upon another point.
75


In Elk v. Wilkins, the court pointed out that section 2 of the 14th Amendment retained
an exclusion of Indians not taxed in referring to appointment of the House of
Representatives in Article 1 of the Constitution.9 The inference was drawn, not
unreasonably, that Congress would have removed the exclusion, just as it removed the
three-fifths formula for counting slaves when it enacted the 14th Amendment, had it
intended that Indians be made citizens. In Dred Scott, Chief Justice Taney, although
the issue of Indian citizenship was not directly discussed in his decision, had inferred
the same premise, that Congress had the right to determine citizenship status for the
Indian.10
The Court decided that although an Indian might abandon tribal relations and
adopt the habits and manners of civilized people, this did not change his legal status.
Citizenship was a privilege directly bestowed by the United States in some form, in
what ever way Congress saw fit to dictate that right.11 Although this form was never
discussed or for that matter defined by the Court, here again as in Dred Scott, there is
a leaning towards the Federal government in making the decision as to deciding the
status of citizenship for the Indian. Also Waite, like Taney, never directly suggested
that the Federal government should grant such rights of citizenship to the Indian.
This judgment produced a strong dissent, rare in the United Sates Supreme
Court involving cases on Indian rights. Associate Justices John M. Harland, and
William B. Woods conceding that wild Indians who do not recognize the government
76


of the United States, and are not subject to our laws were not citizens, and also
argued that the phrase Indians not taxed in the Constitution conferred the right of
citizenship on Indians who were taxed, thus voluntarily transferring their allegiance to
the United States.12 Additionally, the plain language of the 14th Amendment applied to
all persons bom within the limits of the United States.13 Both opinions noted that
many states had conferred state citizenship on Indians, which is a complete departure
from Taneys insistence on the rights of any state in conferring citizenship status on
the Indian were void, but the majority also argued that state decisions on citizenship
had no impact on federal jurisdiction.14 The Courts denial of citizenship in Elk was
part of the foundation of the plenary power doctrine. However, like the idea of
Congress conferring Indian citizenship, generally speaking these issues were mute,
because tribal Indians did not want to be assimilated by the federal government to the
point of being made citizens. Whatever Elks status as a resident of Omaha, the tribes
were still held as independent political communities or in the connection to Marshall,
domestic dependent nations.
The final decision that was issued during Waites tenure as Chief Justice was
the case of United States v. Kagama in which the opinion of the Court was delivered
by Associate Justice Samuel F. Miller on May 10, 1886. This case arrived as the first
test of the constitutionality of the congressional response to the judicial decision in
Crow Dog. It also was the first step in the plenary power doctrine. On March 3,
77


1885, Congress had passed the Major Crimes Act. This was done to prevent a
recurrence of cases like the murder of Spotted Tail by Crow Dog. The Act itself
basically said that crimes committed by Indians would fall under and be decided by the
United States judicial system and would be valid in the courts regardless of their
jurisdictional parameters, those belonging either to state or territorial courts.15 This
was a major encroachment upon traditional tribal autonomy by the federal
government, and would be the basis as to whether or not the judiciary was to continue
its trusteeship in determining the status of the Indian. Any decision involving the
constitutionality of this law would forever determine as to whom had the power of
guardianship over the Indian and who was to direct Indian policy, the federal
government or the judiciary.
United States v. Kagama was the case that decided the issue of the
constitutionality of the Major Crimes Act. The case itself involved two Indians who
had committed murder on the Hoopa Valley Indian Reservation in California which
like in Crow Dog had been caught, arrested and sentenced in the circuit court. Again
in this case the Indians were defined as wards of the nation which in itself hearkens
back to the Marshall trilogy, and the decision in Kagama clearly states that, the
Indians are communities dependent on the United States for food, and political rights.
In summation the Court determined that the question propounded as to the
constitutionality of the Act of March, 1885, is a valid law in both branches of
78


government, and that the Circuit Court of the United States for the District of
California has jurisdiction of the offense charged in the indictment of this case.16 In
his summation Justice Miller argued that:
the power of the General Government over these remnants of a race once
powerful, now weak and diminished in numbers, is necessary to their
protection, as well as to the safety of those among whom they dwell. It must
exist in that government, because it never has existed anywhere else because
the theater of its existence is within the geographical limits of the United
States, because it has never been denied, and because it alone can enforce its
laws on all the tribes.17
The argument could be made that the Supreme Courts conception of the
relationship between congressional and tribal authority, as stated in Kagama had
changed dramatically since the Courts decision in Crow Dog, which had been handed
down only three years earlier. Through Kagama, any authority that the tribes did
possess had been struck down unilaterally in Justice Millers decision to the court. For
the next fifty years after Kagama national Indian policy, and federal laws placed the
tribes with the overshadowing title of a helpless ward under the legislative control of
Congress, and the daily bureaucratic supervision of reservation policy. A recurring
question for this analysis, which is especially true of Kagama has been, what is
necessary to bring a group of people, in this case the Indian, under the broad reach of
federal power without encroaching on the individuals rights as established in the
Constitution.
79


CHAPTER 5
MELVILLE W. FULLER AND THE POLICY OF INDIAN ASSIMILATION
In 1888 the Court would be stricken with Chief Justice Morrison R. Waites
death. This incident would set the stage for the next chief justice, Melville W. Fuller
who was an appointment of President Grover Cleveland. In contrast, whereas Waites
appointment to the high court came without comment, Fullers appointment had
shocked the country due to his lack of national prominence, and name recognition.
Yet under Fullers leadership the court grew in popular esteem. This was due in part
to Fullers wisdom in assigning cases for opinions, promoting compromises, and
discouraging acrimony in dissents. However, he also continued the policies of his
predecessors in concerning the court with continuing the power of legislative authority
over the judiciary. This would bring major consequences involving the issue of court
decisions in Indian affairs. Two of his Associate Justices, Samuel F. Miller and Oliver
Wendell Holmes both of whom, would have the experience of each working with four
different chief justices, had believed that Fuller was the best presiding officer of the
court during their times.1 His extraordinary friendship with Holmes was most notable
because they were so different. Politically, Holmes was a Republican, and Fuller was a
Democrat, the latter becoming the first to hold the office since Taney. The extremes
80


of this friendship were many, whereas Fuller was a devout churchman and favored
strict construction of the Constitution, and had endorsed the issue of traditional civil
liberties, Holmes was a skeptic and in his dissents on constitutional issues had broken
new ground for future due processes for individuals.2 Fuller left few major opinions of
his own. However, for the purposes of this analysis he did provide critical support and
guidance on three major cases involving, or in this case evolving the continued status
of the Indian; Talton v. Meyers in 1896, Stephens v. Cherokee Nation in 1899, and
Lone Wolfv. Hitchcock in 1903.
Before Fuller ever took his seat in the high court it had been well established
by his predecessors that the Indian stood outside the Constitutional community.3 This
status, or label placed on the Indian was maintained throughout the years of the Fuller
Court. Indeed, Fuller himself openly spoke of the condition of Indians as one of
pupilage or dependency and acknowledged the absolute character of the power of
Congress over their fate.4 In Stephens v. Cherokee Nation, it had been determined in
the decision, that a congressional commission may determine who is a member of the
tribe and allot tribal land without regard to previous treaties.5 Later on, in Lone Wolf
v. Hitchcock the decision was to uphold the ceding of tribal lands to the United States
even though the latter did not comply with treaty requirements, and was from time to
time surrounded by allegations of fraud. In Lone Wolf the opinion given by Associate
Justice Edward D. White, denied that, a treaty gave rise to any property rights that
81


might be protected by the 5th Amendment, and then added: the Constitution in effect
ignores the status of the contracting Indians and the relation of dependency they bore
and continue to bare towards the government of the United States.6
In Talton v. Meyers, 1896, the Court allowed in its decision that a
Cherokee Courts murder conviction and the accompanying death sentence stand. By
doing so, the Court overturned its own decision set down in Kagama and put into
question the constitutionality of the Major Crimes Act, although these related judicial
and legal issues were not brought forward for review in the Courts final decision.
Bob Talton appealed to the court that he had not had a fair trial because he had not
been indicted by a grand jury as required by the 5th Amendment of the Constitution.
The court held that the powers of local self government enjoyed by the Cherokee
nation existed prior to the Constitution, and that they are not operated upon in the 5th
Amendment. Justice White explained in the Courts decision that:
The case in this regard therefore depends on whether the powers of local
government exercised by the Cherokee nation are Federal powers created by
and springing from the Constitution of the United States, and hence controlled
by the Fifth Amendment to that Constitution, or whether they are local powers
not created by the Constitution although subject to its general provisions and
the paramount authority of Congress. The repeated adjudications of this court
have long since answered the former question in the negative.7
Without even citing Kagama, or the Major Crimes Act, the opinion of the Court held
firm that the Cherokees had a right to their own laws because of their inherent
sovereignty which preceded the Constitution and because their treaties with the United
82


States gave them the right to maintain their own legal systems.8 In Talton the premise
was that tribal sovereign powers preexisted the Constitution and were not affected by
the dominant societys general laws unless the Congress expressly limited those
powers. This can be traced to Marshall in his decision in Worcester, in 1832, as well
as in Crow Dog. Though falling into desuetude during the Allotment era, this
reasoning as relied upon in Worcester, Crow Dog, and in the Talton decisions was
never completely rejected by the courts.9 It seems that in Talton the opportunity was
presented to the court to reaffirm tribal sovereignty, but that right was in part taken
away in Kagama, and it was Kagama that although it could have been, it was not even
addressed in the Courts decision. It appears that if any case in question evolving the
Indian even vaguely relates to judicial and federal Indian policy it is considered
acceptable especially in the Court. However, if the case contradicts Indian policy as
interpreted by the judiciary, or contradicts federal law, the Court consistently sided
with the government in reaffirming the status of the Indian as a domestic dependent
nation. So in the cases of Crow Dog and Kagama where the premise was the issue of
maintaining tribal sovereignty, the federal government in turn became reactionary and
controlling. In Talton, both the government and the judiciary were quite Comfortable
with the Cherokee court expressing its sovereignty when it came to a sentence where
the punishment was similar to that of federal statutes.
83


Chief Justice Fuller on May 15, 1899 handed down the Courts majority
opinion in Stephens v. Cherokee Nation. The premise of the case was that the
Cherokee nation realizing that their individual sovereignty was under direct attack by
the federal government brought suit against the government on the issue of who was
responsible in the determination of property rights on Indian land. Congress had
authorized the Dawes Commission on March 3, 1893, named for its first chairman,
Henry L. Dawes. The commission was given the task of negotiating, and by the
strongest possible language force, the Indians into the allotment process of their land.
This force lended itself more towards intimidation of the Cherokees, and the other five
civilized tribes for the allotment of their lands into individual plots, and town sites. At
the time these lands were communally held by the Cherokee Nation, who were
perfectly happy with that tribal relasionship.10 The premise of the Commission was to
provide the Cherokees a choice in deciding what lands they would hold individually,
added to this negotiation was, that for all those that went along with the allotment
policy, they would be eligible to obtain United States citizenship. The Cherokees, on
these issues neither wanted the allotment policy of the Dawes Commission, nor did
they want citizenship status. Also this case tested the constitutionality of the Curtis
Act of June 28, 1898 which was the congressional law that specifically was issued
against the Indian with the intention of dissolving all tribal governments, and thereby
aid in the establishment of the allotment policy of the federal government in Indian
84


territory. Thus total Congressional responsibility, trusteeship, and the process of total
assimilation of the Indian into the federal system would be achieved.
The final case to come before the Fuller court was Lone Wolfv. Hitchcock,
which was decided on January 5, 1903. The case itself was somewhat ironic in that
the plaintiff Ethan Allen Hitchcock, who was the Secretary of Interior under President
McKinley, was on record as a protector of Indian tribal property rights.11 The case
itself has its beginnings in the wording of the Treaty of Medicine Lodge in 1867.
Article 12 of the treaty provides that no part of the Kiowa-Camanche Reservation
could be ceded without the approval of three-fourths of the adult male population of
the tribe. However, after the establishment of the Davis-Curtis Act, which provided
for the allotment of all Indian lands, sale of the land could now occur on the
reservation without the necessary three-fourths approval.12 The tribal leaders in turn
took action in the Supreme Court to forbid implementation of the Act. However, in
the Courts majority opinion in Lone Wolf the Court declared that Congress had
plenary power and authority over Indian relations, and thereby had the power to
pass laws abrogating treaty stipulations.13 Here again the court using the issue of
Indian dependency to the government has turned full circle leaving the Indian unable to
stop federal policy due to their inevitable dependency on, and the care and
protection that the United States government has given the Indian.
85


In the basis of the doctrinal core of nineteenth century Indian law through
Crow Dog, there was always a fragility to the balances struck in Indian policy,
decisions that reflected the striking contradictions between dependency and
sovereignty. Marshall in Worcester and Waite in Crow Dog both recognized the
principle of tribal sovereignty. On its face value, Marshall had been the stronger in his
conviction on this issue of Indian sovereignty, but in Crow Dog the Courts result gave
real meaning to tribal sovereignty. Kagama is a critical case because it together with
the later Lone Wolf decision not only wiped that balance, but it destroyed sovereignty
in making the tribes mere wards of the federal government. Also these cases shifted
the method of weighing tribal sovereignty from a complex balancing function in the
federal courts to Congresss plenary power, and thereby simply do with the tribes
whatever it chose.14 Through Kagama the right of Congress to abrogate treaty rights
unilaterally was first established. At the same time, the case potentially deprived the
tribes of the right to make laws to govern themselves, which was a critical aspect of
their sovereignty, and their ability to structure their own societies. Lone Wolf v.
Hitchcock completed this attack by ensuring that the tribes could be deprived of then-
lands in the same way, and thus placing in the hands of the federal government total
control over the lives and very existence of the Indian.
86


CONCLUSION
This analysis was based on the premise that John Marshall had established
judicial precedent in his Marshall trilogy of decisions. Decisions that protected the
inherent over-arching supremacy and sovereignty of the federal government in Indian
affairs. I maintain that initially this responsibility over Indian affairs was shared equally
between the congress and the judiciary. The judiciary took up their role as a trustee
over a domestic dependent nation as was interpreted in Marshalls decisions, but
gradually that role was diminished through the exploits of the plenary powers of
congress. For his part, Marshall could have legally moved the Court in the other
direction and supported Justices Joseph Story and Smith Thompson in Cherokee
Nation and gave the Cherokee people their independent status. However, this period
of judicial history was highly entrenched in the empire building practices of a newly
formed republic. These practices were echoed by Marshall and his successors without
regard to the Indian tribes they affected. These successors, and even Marshall himself,
could have changed these precedents and moved Indian law in the direction by
invoking Article 6 of the Constitution, enforcing Senate approved treaties, or in
establishing the basic tenets of natural law and a sense of fair play.
87


Johnson v. McIntosh, and Worcester v. Georgia are cases that involved white
issues, and only inadvertently did the role of the Indian come in to question.
However, in Cherokee Nation the precedent that Marshall establishes regarding Indian
affairs becomes clearer. In Cherokee Nation there are three separate arguments. First,
Justices Thompson and Story in their dissent agreed with the Cherokees that they are
an independent nation and should exist without the interference of the State of Georgia
or anyone else. Second, in opposition, Justices Henry Baldwin and William Johnson
provided the opinion that Indians are savages and are not nations. They agreed with
the State of Georgia that Indians are nothing, and that the state can do anything to the
Indians that they saw fit. Their argument was a nullification vote backing the privilege
of states rights and thereby justifying that the states can do whatever they want in
Indian affairs. Third, Marshall and Justice John McLean provided the decision based
on a middle ground argument that included elements of the other two. The Marshall
decision said that the Indian is a domestic dependent nation, and also established the
trusteeship of the federal government. His opinion states the affirmation of the federal
governments inherent over-arching sovereignty and supremacy over Indian affairs.
Marshall is also saying in his decision that the Cherokees are not nothing but they are
not independent either.
In Cherokee Nation v. Georgia, the Cherokee Nation was asking for
independent status through the jurisdiction of the Supreme Court. Justices Marshall,
88


McLean, Baldwin and Johnson denied the Cherokees request for independent status.
Even though this independent status was denied, Marshall still had to define the place
and status of the Indian. Baldwin and Johnsons argument that the Indian is nothing
and only a mere savage was not acceptable to Marshall and McLean. They agreed
with Thompson and Story that the Indian needed a definition but that definition was
not one of independence. Marshall gave the Cherokees and in general the Indian, a
status of a domestic dependent nation. In essence Marshall wins in both ways and in
the following year in the case of Worcester he will be able to count on Justices Story
and Thompson for support.
When the case of Worcester comes before the Court, Marshall knows
that Thompson and Story will be with him in his decision. Worcester reinforces
Marshall in his Cherokee Nation decision, and expands the role of the Indian as a
domestic dependent nation. However, here Marshall is apologizing in Worcester for
not doing the right thing in Cherokee Nation, but by then it was too late. Worcester
was the wrong case because it is not about the Indian, it is about whether Worcester
gets out of prison. Cherokee Nation, and Worcester are a double edged sword. On
one hand these cases do not take everything away from the Indian, but on the other
hand they do not recognize the Indians independent status and thereby Marshall
enforces federal trusteeship and the domestic dependent nation status on the Indian.
89


In the Taney Court, in the case of Rogers v. United States the Cherokees
asserted that they are an independent people with the sovereignty of an independent
nation. Through this sovereignty the Cherokees believed that they had the right to
make anyone a citizen of the tribe, such as that given to Rogers who had married a
Cherokee woman. For Taneys part he takes Indian law into the racial context of
Indian policy. Taney stated that Rogers could be considered a political citizen of the
Cherokee tribe, but racially Rogers being a white man would never be considered an
Indian under the law. Taney, in his decision racialized Indian relations, and in so doing
he reinforced the one drop rule which defined the race a person belongs to by one
drop of blood, be that Indian blood or in the case of Dred Scott, black. Even though
Marshall viewed Indian relations as a political issue and not a racial issue, Taney still
makes his connection to Marshall in the logic that resulted from Cherokee Nation.
Although Taney qualifies and pigeon holes the Indian on racial grounds, he does say
that the determination of who was and who was not a Cherokee was up to the federal
government, not to the Cherokee people or the states. Rogers was a reinforcement of
federal supremacy which is in part related to the decision of the Indian as a domestic
dependent nation as related to Marshall in Cherokee Nation.
In Cherokee Tobacco the case about territory and who has that jurisdiction
was construed in the same vein as the argument of federal supremacy over the Indian.
The decision held that the Cherokee may have jurisdiction over some parts of their
90


territory internally. When they invited whites to grow tobacco in order to avoid the
federal tax the federal government argued successfully that it was illegal because under
the umbrella domestic dependent nation status, all territory is under United States
jurisdiction. This premise of federal land jurisdiction was established in Johnson v.
McIntosh. Whites were considered to still be within United States territory even
though they were on Cherokee land because all land title belonged to the federal
government. The Cherokee Tobacco case still showed the consistency and connection
to Marshalls logic in upholding the inherent federal supremacy argument as expressed
in Cherokee Nation. Marshalls logic is also applied in this case in the issue that
federal supremacy is a buffer of protection to the Indian against State and citizen
encroachment. An underlying problem in this premise still remains. Even though it is
good that the federal government protects the Indian, who prevents the federal
government from turning on the Indians? The Marshall buffer provides no protection
against federal supremacy.
In Ex Parte Crow Dog, there is a continued reliance on the decision in
Cherokee Nation. The holding in Crow Dog said that absent any congressional
legislation, the Sioux has internal criminal jurisdiction to decide cases within their
reservation without external interference, in essence the Indians had won the case.
Congress had been silent on the issue of Indian criminal jurisdiction so the Indians
retained inherent sovereignty. This case reinforced the nation part in the domestic
91


dependent nation definition because it gave Indians a national character and authority
to decide criminal cases if congress has not acted. The Indians can try Crow Dog
following their own custom and tribal laws. Now if congress had acted before the
Crow Dog case, and had decided on the issue of Indian criminal jurisdiction, then the
domestic dependent element of the definition ofdomestic dependent nation is
activated thus directly reverting back to Marshalls decision as he defined the status of
the Indian in Cherokee Nation. The reaction by congress was the Major Crimes Act.
In relationship to Crow Dog when the case of Kagama came before the
Supreme Court the Court said that congress has now acted through the Major Crimes
Act and therefore there is nothing that the Court can do. However, the Court could
have gone against congresss wishes or the sovereignty of the federal government
through the use of Article 6 of the Constitution and the Treaty of 1868 that recognized
the national inherent authority of the Indians to prosecute crimes in their own
territorial lands. Under Article 6, the Treaty of 1868 is not only valid, but is more
important than congresss right to legislate on Indian affairs under Article 1 Section 8
in the Commerce Clause. Kagama was a pivotal and crucial case because here we see
domestic dependency interpreted by the court in reaffirming federal supremacy over
the Indian when through the logical argument, the Court could have interpreted this
the other way. The Court of Morrison R. Waite betrayed in Kagama the original
92


intent of domestic dependency in Cherokee Nation, but still held on and verified the
inherent over-arching supremacy and sovereignty of the federal government.
In the decision of Lone Wolf the Court extends the logic of Kagama. Not only
does congress have the right to legislate Indian affairs through the Major Crimes Act,
but now through Kagama and its recognition of the plenary powers of congress,
congress has the right to legislate Indian affairs in whatever way they want. The
Marshall decision in Cherokee Nation which developed the status of the Indian as a
domestic dependent nation is translated in the plenary powers doctrine by the Court
when it gave congress the plenary authority over the Indian saying that the Court has
no right to interfere with congress. This is the measure the Court takes when it
abdicates its authority in Indian affairs and gives it willingly to congress. Congress
now has total power over Indian affairs and policy. Not only can congress legislate
about Indian criminality, but now they can legislate in all areas of Indian affairs.
Congress can now abrogate any treaty unilaterally with the Indians that they do not
like, with full knowledge that the Supreme Court will do nothing to reverse
congressional policy in upholding federal supremacy over the Indian. As for the
courts use of Article 6 to restrain congressional control over Indian affairs, the court
no longer cares to hinder the federal government even though they have the power to
do so within the parameters of the Constitution.
93