Citation
A moment of repose?

Material Information

Title:
A moment of repose? reconsideration of Cherokee Nation v. Georgia
Portion of title:
Reconsideration of Cherokee Nation v. Georgia
Creator:
Zradicka, Gloria A
Publication Date:
Language:
English
Physical Description:
vii, 100 leaves : ; 29 cm

Subjects

Subjects / Keywords:
1775-1899 ( fast )
Cherokee Indians -- History -- 19th century ( lcsh )
Cherokee Indians -- Government relations ( lcsh )
Cherokee Indians ( fast )
Cherokee Indians -- Government relations ( fast )
Politics and government ( fast )
Politics and government -- Georgia -- 1775-1865 ( lcsh )
Georgia ( fast )
Genre:
History. ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )
History ( fast )

Notes

Bibliography:
Includes bibliographical references (leaves 93-98)-and list of cases and laws cited.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Political Science.
Statement of Responsibility:
by Gloria A. Zradicka.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
37609738 ( OCLC )
ocm37609738
Classification:
LD1190.L64 1996m .Z73 ( lcc )

Full Text
A MOMENT OF REPOSE? RECONSIDERATION OF
CHEROKEE NATION V. GEORGIA by
Gloria A. Zradicka
B. A, University of Colorado at Denver, 1979
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 Gloria A. Zradicka All rights reserved.


This thesis for the Master of Arts degree by Gloria A. Zradicka has been approved by
MichaeKS. Cummings
^ucy C. Ware
/m
Date


Zradicka, Gloria A. (M. A., Political Science)
A Moment of Repose? Reconsideration of Cherokee Nation v. Georgia Thesis directed by Associate Professor Glenn T. Morris
ABSTRACT
United States Federal Indian law, like other U S. law, is built on legal precedents. This article discusses the legal foundation provided by Chief Justice John Marshall's decisions in the Supreme Court trilogy of cases referred to as the Cherokee Cases: Johnson v. McIntosh, Cherokee Nation v. Georgia and Worcester v. Georgia. The enduring legacy of each case and the relationship of the cases are examined.
The decision rendered in Cherokee Nation is examined from the perspective of the arguments, the opinions, the political environment of the time, and the applicable legal precedents. This article demonstrates that the Cherokee decision, which denied the Cherokees legal status as a foreign state, was not founded on the authority of accepted legal scholars such as Vitoria, Vattel, and Grotius. Rather, Marshall's decision was based on political expediency with the purpose of avoiding a constitutional crisis.
Three of Marshall's phrases in the dicta of the Cherokee Nation decision, "domestic dependent nation," "pupilage," and "a ward to his guardian," have provided the basis for U.S. Federal Indian Law. A review of subsequent cases and federal law demonstrates that Marshall's words have been expanded and manipulated beyond his intent to deprive Indian nations of self-determination and sovereignty through the construction of plenary power.
iv


This article argues that Federal Indian law is built, at best, on questionable legal precedent. If the Cherokee Nation v. Georgia opinion was not founded in the law, the decision should be reconsidered. There is no point in time when a Supreme Court decision must stand as accepted legal precedent merely because of its longevity. The conclusion argues that Marshall's Cherokee Nation decision, which has caused immeasurable damage to Indian nations, cannot legally continue and should be overturned.
This abstract accurately represents the content of the candidate's thesis. I recommend its publication.
Signed
v


CONTENTS
I. INTRODUCTION: IS FEDERAL INDIAN LAW THE PERFECT
INSTRUMENT OF EMPIRE?................................................. 1
A. Overview of the "Marshall Trilogy"............................ 2
1. Johnson v. McIntosh .................................... 2
2. Cherokee Nation v. Georgia ............................. 6
3. Worcester v. Georgia ................................ 11
B. The Enduring Legacy of the Cases .......................... 13
II. WAS THE CHEROKEE NATION V GEORGIA DECISION CONSISTENT
WITH CONTEMPORANEOUS LEGAL PRINCIPLES? .............................. 16
A. Political and Legal Environment of the United States Surrounding
the Cherokee Cases......................................... 17
B. Discussion of Cherokee Nation v. Georgia................... 20
1. Consideration of the Cherokee Nation as a Foreign State. 20
2. "Domestic Dependent Nation"--the Future of a Nation Turns
on a Phrase.......................................... 23
3. The Roots and Consequences of the Trust Relationship as a
Juridical Construct ................................. 23
C. Marshall's Majority-Opinion Rationale ..................... 25
1. Legal Reasoning...................................... 25
2. Political Pressures.................................. 27
D. Reconsideration of the Cherokee Nation as a Foreign State 30
vi


1. International Law .................................... 30
2. John Sergeant and William Wirt's Arguments on Behalf of the
Cherokee Nation........................................ 37
3. Justices Johnson and Baldwin's Opinions in Opposition to
Cherokee Nationhood.................................... 47
4. Justices Thompson and Story's Dissent in Support of
Independent Cherokee Nationhood........................ 51
E. Searching for Marshall's Intent of "Domestic Dependent Nations". 56
1. The Ancient Origins of Federal Indian Law:
Franciscus de Vitoria.................................. 57
2. From Metaphor to Law: The Expansion of "Domestic
Dependency"............................................ 58
3. The Legal/Political Dichotomy of the Doctrine......... 60
F. Did Marshall Intend to Create the Federal Indian Trust Relationship? .. 62
1. The Pre-Discovery Doctrine of Trusteeship............. 63
2. Implications of Trusteeship After Cherokee Nation .... 64
m. WORCESTER V GEORGIA: AN UNEXPLAINED CONTRADICTION ... 67
IV THE CHEROKEE CASES AS FOUNDATION FOR ALL SUBSEQUENT
U S. INDIAN LAW................................................... 71
V CHEROKEE NA TION V. GEORGIA: GOOD LAW OR GOOD
RIDDANCE?........................................................ 84
VI. CONCLUSION ....................................................... 89
BIBLIOGRAPHY ......................................................... 93
CASES AND LAWS CITED ................................................. 99
vu


I. INTRODUCTION: IS FEDERAL INDIAN LAW THE PERFECT
INSTRUMENT OF EMPIRE?
Federal Indian Law is one of the most complex and confusing areas of U.S. law. As with other U.S. law, Federal Indian Law is based on legal precedents which, among other things, justify the very territorial existence of the United States. Three Supreme Court decisions written by Chief Justice John Marshall in the cases of Johnson and Graham's Lessee v. McIntosh,1 2 3 The Cherokee Nation v. The State of Georgia} and Samuel A. Worcester v. Georgia} the "Marshall Trilogy", are generally considered to be the foundation of Federal Indian Law. This article will outline the basis for each of these cases individually, and in relationship to each other, and the legacy of the Court's decisions. Cherokee Nation v. Georgia, which contorted and re-established the ongoing legal standards for U.S.-indigenous relations, will be examined in detail in terms of the political and legal considerations that influenced it, the legal foundations in place at that time, the majority opinions, and the dissenting opinions.
The importance of this examination is rooted in the understanding that the "Marshall Trilogy" is a critical cornerstone in the total body of U.S. law. The continuing impact of these cases on Federal Indian law must necessarily also be
1 21 U.S. (8 Wheat.) 543 (1823).
2 30 U.S. (5 Pet.) 1 (1831).
3 31 U.S. (6 Pet.) 515 (1832).
1


discussed. In light of the information presented, consideration will be given to the advisability and practicality of overturning Cherokee Nation v. Georgia. If the decisions rendered in these cases were not legitimately rooted in the rule of law, then the entire body of United States Federal Indian Law might be built on a questionable foundation that provides moral, legal, and political dilemmas that implicate future law and policy in the area of Indian affairs.
In part I of this article, I will examine and analyze the cases that comprise the "Marshall Trilogy," and the importance of the cases' legacy. Part II will discuss whether Cherokee Nation was decided consistent with known legal foundations and explore the intent of Marshall's decision. The contradiction between Worcester and Cherokee Nation will be examined in part III. Part IV will discuss how subsequent Federal Indian Law has its foundation in Cherokee Nation. In part V, based on the evidence presented, I will analyze whether there are grounds to overturn Cherokee Nation. In conclusion, the ramifications of reversing the case will be discussed in part VI.
A. Overview of the "Marshall Trilogy"
1. Johnson v. McIntosh
One of the cornerstones of United States property law, the case of Johnson v. McIntosh established the U.S. position on the question of aboriginal title and the supremacy of U.S. title over the so-called public domain of the United States. The plaintiffs claimed ownership to land in Illinois purchased from the Illinois and Piankeshaw Indians, while the defendant claimed title to the same land purchased under a United States grant. The Court was faced with the issue of the Indians'
2


sovereign authority to convey title to their territory freely and without external interference. The Indians' right to occupy the land was acknowledged by Marshall and the Court; the Illinois and Piankeshaw had possessed and inhabited the land from time immemorial. However, the question to be resolved was whether "discovery" by the European countries terminated the Indians absolute title, superseded by the European colonizing states, or whether Indians retained full title to their land even after the arrival of Europeans.
Johnson's and Graham's claim was based on the position that the Illinois and Piankeshaw Indians' land title had never been extinguished by either conquest or by sale to the colonizing countries. The plaintiffs contended that Indians held title as a common society and that such a claim was supported by legal scholars such as Grotius 4 The respondent, McIntosh, claimed the Indians were in a state of nature,5 incapable of understanding "civilized" land tenure systems or efficient use of territory, and that discovery gave title to the colonizing countries.6
4 21 U.S. at 563. Citing Grotius, de Jure Belli ac Pads (The Rights of War and Peace), lib 2, c. 2, § 4: "Yet any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste lands, but as the property of the first occupier, whether it be the King, or a whole people."
5 Robert A. Williams, Jr., Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law, 31 Ariz. L. Rev. 237, 252 (1989). Such claims were based on Locke's "...basic theme that land without labor-added value, such as Indian-occupied land, remains in the state of nature free for individual English appropriation as property."
6 21 U.S. at 567. Citing Vattel, Droit des Gens (The Law of Nations), lib. 2, c. 7, § 83: "...in taking possession of a country, the nation is presumed to take possession of its government at the same time."
3


Chief Justice Marshall rendered an opinion in favor of McIntosh. According to the decision, discovery gave the colonizing European country the exclusive right to obtain the land from the Indians.7 Discovery, as originally used by the European countries, was to eliminate competition among themselves for new lands by providing a method for seeking title and did not impair Indian title in any manner.8 However, the Christian Europeans expanded the premise of discovery to justify taking title to the land, without consideration of aboriginal rights.9 The colonizers believed that Indians
7 21 U.S. at 573.
8 Indian Resource Law Center, United States Denial of Indian Property Rights: A Study in Lawless Power and Racial Discrimination, in Rethinking Indian Law 15,16 (National Lawyers Guild Committee On Native American Struggles ed., 1982). "According to that [discovery] doctrine, the European nation which first 'discovered' and settled lands previously unknown to Europeans was entitled to the exclusive European interests in those lands ... the right of discovery was used to justify and to regulate the creation of new European empires in the non-European world. The right of discovery became generally accepted among European nations, and it became part of the early body of international law .... History does not support the argument that the right of discovery ... gave European nations either the title of ownership to Indian lands or the legal power to extinguish Indian title by simply expropriating Indian lands. The right of discovery was a limitation on the powers of European nations to interfere in the affairs of other European nations. It did not limit the legal powers or rights which Indian nations had in their homelands...." Also see infra note 9. Also see Johnson v. McIntosh (21 U.S. 573): "This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made ... against all other European governments. (emphasis added).
9 Steven T. Newcomb, The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power, 20 Rev. L & Soc. Change, 303, 307, 309 (1993). In discussions related to discovery, the term "European" has been commonly used in place of "Christian." According to Newcomb,
.when the term 'international law' is employed to refer to the discoveries made by the monarchies or nations of Western European during the fifteenth and sixteenth
4


were adequately compensated for any property rights that might have been violated by the extension of civilization and Christianity. Discovery was also based on the belief that Indians were savages, incapable of fully participating in civilized society.10 The opinion further stated that "the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired."11 Based on the belief that Indians were incapacitated, the discovering countries could justify the necessity of violating the rights of the aboriginal inhabitants. Under this theory, the discovering state was vested with ultimate dominion and territorial sovereignty even while the Indians maintained possession of the land. Marshall declared that the title acquired from the Indians was invalid and the legitimate title was the one vested in the discovering or succeeding sovereign through a variety of actions involving land grants, treaties and wars.
According to Williams, Marshall fashioned his opinion to rationalize "... the process of land acquisition in a country originally inhabited by a savage people but
centuries, what is actually referred to is Christian international law." Newcomb further explains that" [accurately stated, the centuries-old right of discovery was the right of any Christian nation to locate and take possession of non-Christian lands."
10 Robert A. Williams, Jr., The American Indian in Western Legal Thought 220 (1990). "Presuming the savage Indians' lack of rational capacity and condemning their normatively deficient use of the 'unmanned wild country1 of America, English colonizing discourse emerged in the early seventeenth century as a most potent instrument of Empire. England, by 'right natural,' held superior sovereignty over the lands occupied by the American Indian."
11 21 U.S. at 574.
5


gradually overtaken by a foreign invader."12 Thus, because of what Marshall viewed as political necessity, he wrote his opinion to uphold the discovery claims of the colonizing countries and to substantiate the United States' claim of ultimate dominion. The Indians' assertion of absolute title to their claimed territory was eliminated unilaterally in a Supreme Court hundreds of miles away by a Justice they had never seen, in a case to which they were not even a party.
2. Cherokee Nation v. Georgia
The issue in this case concerned the fundamental relationship between the United States and the Cherokee Nation; the holding, however, would affect every Indian nation that the U.S. would eventually envelop. A number of treaties had been negotiated between the Cherokee Nation and the U.S., including the 1785 Treaty of Hopewell, the 1791 Treaty of Holston and treaties of 1817 and 1819. All of the treaties recognized the right of the Cherokee Nation to continue as a sovereign nation on land located within the area increasingly claimed and encroached upon by the State of Georgia.13 The United States had agreed to give this land to Georgia at such time that the Cherokee Nation no longer occupied the land. As the Cherokees developed into what the Europeans considered to be a more civilized society through the development of a governmental system with a written constitution, the establishment of schools, a tolerance of missionaries, and the movement toward an agrarian/trade
12 Williams, supra note 10, at 312.
13 2 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 174 (Philip B. Kurland & Gerhard Casper eds., 1978).
6


based culture, the State of Georgia realized that there was a probability that the Cherokee Nation would not voluntarily move from the land. Georgia tried to force the issue by enacting laws directed at taking Cherokee land, resources, and property, and eliminating the sovereignty of the Cherokees.14
The Cherokee Nation petitioned the United States Supreme Court to restrain the State of Georgia from executing and enforcing laws that would have restricted or eliminated the Cherokees' sovereign rights as an independent nation. The case was filed with the Supreme Court on the basis that the Constitution provided for jurisdiction of the Court in actions involving individual states and nations under Article IE, Section 2.15 John Sergeant and William Wirt, attorneys for the Cherokee Nation, argued that the relationship between the Cherokees and the United States was an
14 Mary Young, The Exercise of Sovereignty in Cherokee Georgia, Journal of the Early Republic, Spring 1990, at 43, 49-54. The State of Georgia began enacting legislation in 1827 that affected the Cherokees by extending county court jurisdiction to crimes involving citizens of Georgia that occurred within the Cherokee Nation's boundaries. By June 1830, Georgia claimed the Cherokee land as being part of Georgia, declared all Cherokee laws as "null and void" and that Indians and non-Indians were subject to Georgia law, and declared Indians to be incompetent as witnesses or as a party to legal actions involving non-Indians. After gold was discovered in Cherokee territory, Georgia began surveying the land in February 1831, so that the state could distribute Cherokee land to Georgians. Further, as emigrating Cherokees sold their land to the United States, agents of Georgia rented these lands and improvements to non-Indians. Finally, another law required that all non-Indians residing in the Cherokee Nation after March 31, 1831, be required to take an oath supporting the laws of Georgia or be subject to a four year penitentiary sentence.
15 "The judicial power shall be extended to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;... between a State, or the citizens thereof, and foreign States, citizens or subjects."
7


international co-equal relationship of foreign states. Treaties, which according to Article VI of the U S. Constitution are to be regarded as the supreme law of the land, on an equal plane with the Constitution itself, had been negotiated between the United States and the Cherokees, and supported the Cherokee Nation's claim of political and territorial sovereignty. The State of Georgia, arrogantly believing that its state sovereignty shielded it from the reach of the US. Supreme Court in this matter, did not respond to the motion for injunction filed with the Court.16
The Court's majority opinion was again given by Chief Justice John Marshall. He concluded that the Supreme Court did not have jurisdiction in this case. Although he agreed that the Cherokee Nation had the status of a nation, it was not the standing of a foreign state as required by Article HI. Marshall acknowledged that the Cherokees were not a state of the union; however, they were geographically located within the boundaries of the United States, and consequently could not be viewed as a "foreign" state. Furthermore, through treaties, the Cherokee Nation had placed itself under the protection of the U.S. and had agreed to allow the United States to regulate
16 4 Albert J. Beveridge, The Life of John Marshall 543 (1919). In response to the Supreme Court writ, the Georgia State Legislature .resolved that 'the interference by the chief justice of the supreme court of the U. States, in the administration of the criminal laws of this state,.. is a flagrant violation of her rights'; that the Governor 'and every other officer of this state' be directed to 'disregard any and every mandate and process .. purporting to proceed from the chief justice or any associate justice of the supreme court of the United States'; that the Governor be 'authorized and required, with all force and means .. at his command .. to resist and repel any and every invasion from whatever quarter, upon the administration of the criminal laws of this state'; that Georgia refuses to become a party to the case sought to be made before the supreme court'...."
8


commerce with them.17 Marshall rejected the Cherokee Nation's claim that it was a
foreign state while acknowledging that "[t]he condition of the Indians in relation to the
United States is, perhaps, unlike that of any other two people in existence."18 The
Cherokee Nation and other Indian peoples
...may more correctly, perhaps, be dominated domestic, dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage.
Their relation to the United States resembles that of a ward to his guardian.19
The Supreme Court dismissed the case on the grounds that it lacked jurisdiction under Article III because the Cherokee Nation did not meet the criterion of foreign state status as required under the Constitution. However, in Marshall's opinion denying the Court's jurisdiction, he went far beyond the required language for denying
17 Richard Peters, The Cherokee Nation Against the State of Georgia; Argued and Determined at the Supreme Court of the United States, January Term 1831 249-52 (1831). The 1785 Treaty of Hopewell, Article 3 states that "[t]he said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever." Article 9 of the same Treaty states "... the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians ...." Again in Article 2 of the 1791 Treaty of Holston, the Cherokee Nation "... acknowledge^] themselves to be under the protection of the United States of America..." Commerce regulation by the United States is reaffirmed in the Treaty of Holston, Article 6: "... the United States shall have a the sole and exclusive right of regulating their [Cherokee] trade."
18 30 U.S. at 16.
19 Id. at 17.
9


the injunction requested by the Cherokees. Marshall suggested that the Cherokees' claim might have had merit if it had been presented in a different forum with different parties but that the Supreme Court was not the proper tribunal to address the issues raised.20
The opinions by Justices Johnson and Baldwin rejected the motion for injunction on the basis that the Cherokee Nation had no status as a nation, not even under the description of domestic dependent nation status as outlined by Marshall. Further, Baldwin stated that the treaties between the Cherokee Nation and the United States were not actually treaties in the common legal sense, but were merely articles.21 Baldwin went so far as to call the articles "a definitive treaty, or an indenture of servitude."22
Justice Thompson, writing in dissent, joined by Justice Story, recognized the Cherokee Nation's foreign state status, which should have entitled it to a hearing before the Supreme Court on the motion for injunction against Georgia. Thompson determined that the Cherokees constituted a sovereign state according to the definition of a nation as outlined by Vattel.23 On the issue of the Cherokees relinquishing some
20 Id. at 20.
21 Treaties have the legal status of being a binding contract between co-equal independent sovereign states. Further, the President is authorized by Article II, § 2, cl. 2 of the U.S. Constitution to make treaties and the judicial power is extended to all cases arising under treaties by Article HI, § 2, cl. 1. Treaties, just as the Constitution, are the "supreme law of the land" according to Article VI, cl. 2. See infra note 109.
22 30 U.S. at 39.
23 Id. at 52. Citing Vattel, Droit des Gens (The Law of Nations), 1, c. 1, §1. See
10


of their sovereignty to the U.S. by treaty, Vattel wrote that sovereign states may unite themselves in unequal alliances and "a weak state, which, in order to provide for its safety, [may place] itself under the protection of a more powerful one, ...without, however, divesting itself the right of government and sovereignty!1,24 Thompson stated that since the Cherokees must be a nation, based on accepted legal thinking of that time, "they must have been foreign nations, to all the world; not having any connection, or alliance of any description, with any other power on earth."24 25
3. Worcester v. Georgia
The major underlying issue of this case was how the relationship of states to the federal government was to be defined, using Indian policy as the measuring stick, and specifically addressing the relationship between the United States and the State of Georgia. As mentioned above, Georgia had enacted laws that would reduce the Cherokees' sovereignty. Samuel A. Worcester, a missionary under the direction of the American Board of Commissioners for Foreign Missions, resided in the Cherokee Nation with the permission of the Cherokees and under the authority of the President of the United States. Under Georgia's newly enacted laws, a non-Indian could not
infra note 85 and accompanying text.
24 Id. at 53. Citing Vattel, Droit des Gens (The Law of Nations), 1, c. 1, § 5, 6. Marshall used this citation the very next year as an authority in Worcester v. Georgia to support the opinion, although he did not use it in Cherokee Nation because it did not support the opinion Marshall felt obligated to render.
25 Id. at 54.
11


reside on Cherokee land without the permission of the governor of Georgia.
Worcester was arrested and prosecuted by Georgia authorities for violation of the state law. The plaintiff claimed that Georgia's laws were invalid and unenforceable because they violated the territorial and jurisdictional sovereignty of the Cherokee Nation, and that the state laws were contrary to the Constitution of the United States and to treaties signed between the Cherokees and the United States government.
Marshall's opinion reviewed the Doctrine of Discovery and stated that it governed the actions of the European colonizing countries. However, in apparent direct contradiction to his opinion in Johnson nine years earlier, discovery now did not eliminate the rights of the original inhabitants.26 Marshall further stated that the Cherokees had never lost their standing as a sovereign, independent nation as the result of discovery or of any actions that followed discovery. Such was the standing of the Cherokees when treaties were signed first with Great Britain and, later with the United States.27 As mentioned above, the Constitution of the United States declares
26 31 U.S. at 542-543. "America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other, and the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied, or that the discovery of either, by the other, should give the discoverer rights in the country discovered, which annulled the pre-existing right of its ancient possessors."
27 Id. at 548-549. "...Great Britain...considered them as nations capable of maintaining the relations of peace and war, of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged."
12


that treaties are the supreme law of the land.28 The treaties promised the Cherokees protection from non-Indian intrusion onto their territory and assured them the right to self-determination.
Marshall's opinion stated that "...the acts of Georgia were repugnant to the Constitution, laws and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our Constitution, are committed exclusively to the government of the Union."29 On the grounds that Georgia's laws were unconstitutional, it was determined that Worcester had been unlawfully imprisoned.
B. The Enduring Legacy of the Cases Each of these three cases laid the foundation for legal precedent in U.S. law with lasting implications for both Indian nations and the United States. Johnson v. McIntosh provided the basis for United States property law and ensured that ultimate title of Indian land rested with the U.S. government. This decision legitimized the Doctrine of Discovery30 and denied the natural-law rights of the Indians. According to Supreme Court Justice Story, "The title of the Indians was not treated as a right of property and dominion, but merely a right of occupancy. As infidels, heathens, and
28 See supra note 21.
29 31 U.S. at 561.
30 See supra notes 8-9 and accompanying text.
13


savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations."31 The European concept of discovery, acknowledged and accepted in the Johnson decision, "...was now available to legitimate, energize, and constrain as needed white society's will to empire the North American continent."32 Further, this decision made "[t]he Doctrine of Discoverys underlying medievally derived ideology that normatively divergent 'savage' peoples could be denied rights and status equal to those accorded to the civilized nations of Europe ...an integral part of the fabric of United States federal Indian law."33
The political and legal relationship between the American Indian nations and the U.S. government grew out of the Cherokee Nation v. Georgia decision. Marshall's use of the phrases "domestic, dependent nation", "pupilage" and "a ward to his guardian" laid the foundation for the trust relationship that is the bedrock of United States Federal Indian Law. Although Marshall qualified his use of these phrases by suggesting that the Cherokees theoretically "may, more correctly, perhaps be denominated domestic dependent nations"34 and "their relations to the United States resembles that of a ward to his guardian,"35 the qualifiers have been disregarded and
31 Williams, supra note 10, at 316.
32 Id. at 316-317.
33 Id. at 317.
34 30 U.S. at 17 (emphasis added).
35 Id. (emphasis added).
14


this opinion serves as the precedent for the creation of an actual trust relationship used in all Federal Indian Law.
Worcester v. Georgia established that in a conflict between state and federal authority, unless specifically countermanded by the Constitution, federal supremacy prevails. The jurisdiction of the Supreme Court in cases involving states also became more concrete. In the course of upholding the United States' authority as superior to Georgia's asserted power, this opinion also upheld the rights of the Cherokees to function as a sovereign nation under the terms of its treaties with the United States.
Although the importance of any of these cases cannot be minimized, the lasting legacy of Cherokee Nation v. Georgia is monumental for indigenous nations in the United States and indeed, for indigenous peoples throughout the world. Decisions in cases such as the United States v. Kagama,36 37 38 Lone Wolfv. Hitchcockp and McClanahan v. Arizona Tax Commission38 relied on Cherokee Nation for their justification. The implications of the decisions in these, and other, subsequent cases are discussed below.
36 118 U.S. 375 (1886). Kagama upheld plenary power over Indian nations.
37 187 U.S. 553 (1903). Plenary power was further expanded by this decision which allowed the United States to abrogate treaties.
38 411 U.S. 164 (1973). McClanahan supported states' claims of jurisdiction over Indians if there was no conflicting federal interest.
15


II. WAS THE CHEROKEE NATION V. GEORGIA DECISION CONSISTENT WITH CONTEMPORANEOUS LEGAL PRINCIPLES ?
The decision of Cherokee Nation v. Georgia is considered legitimate because it is assumed to have been decided by the Supreme Court under settled principles of law. For the same reason, the decision continues to be considered valid in present time and remains the foundation for all law and policy concerning American Indians. It also serves as a basis for law in the international-arena treatment of most indigenous peoples beyond the borders of the U.S.39 However, instead of accepting Marshall's
39 Canada, Australia, and New Zealand provide examples of the influence of the "Marshall Trilogy" on the international treatment of indigenous peoples. According to Nell Jessup Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L. J. 1215, 1254 (1980) the courts in New Zealand, Australia, and British Columbia often acknowledge "... Johnson as persuasively reasoned ...." The 1876 Indian Act of Canada is described by Augie Fleras and Jean Leonard Elliott, The Nations Within: Aboriginai^State Relations in Canada, the United States, and New Zealand 74, 76 (1992) as a"... Victorian-era Act [that] gave sweeping powers for the [Indian Affairs] Department to invade, control, and regulate every aspect of aboriginal life.... The Indian Act created the legal framework for the paternalistic administration of aboriginal affairs by a federal agency." Garth Nettheim, Peoples' and Populations' Indigenous Peoples and the Rights of Peoples 107,112 in The Rights of Peoples (James Crawford ed., 1988) states "[s]ince ... 1867, the Canadian government had exclusive legislative power over Indians and lands reserved for the Indians.
According to Fleas and Elliott, at 30, Canada's efforts to respond to aboriginal claims of sovereignty by legitimizing aboriginal control over their own internal affairs have followed the "model... of the 'domestic dependent nations' in the United States...." Hurst Hannum, Autonomy, Sovereignty, and Self-Determination 102 (1990) also discusses the implications of the trust relationship in Canadian Indian law and policy. Canada's legal response to aboriginal claims of sovereignty and title, as described by Fleras and Elliott, at 37-38, continues to reveal the "inherent bias within European law against aboriginal peoples and aspirations, which render aboriginal interest subordinate ..." with The Gitkson-Wet'suwet'en Comprehensive Land Claim (1987) cited as an example. The presiding judge for the case suggested that the aborigines
16


opinion of Cherokee Nation v. Georgia as being correct, we should examine this decision in terms of the political climate of that period, the legal precedents of the 1830s, and the political motives that may have influenced Marshall's written opinion.
A. Political and Legal Environment of the United States Surrounding the
Cherokee Cases
Arguably, the outcomes of the Cherokee Cases were greatly affected by the political and legal environment of the early 19th century. When John Marshall was appointed Chief Justice of the Supreme Court in 1801 by President John Adams, the United States was in the midst of a political struggle between the Federalist Party, led by President Adams, which supported a strong federal government, and the Democratic-Republic Party, led by Thomas Jefferson, which supported greater state sovereignty.40 The principles of nullification41 also served to divide the Union to the
should seek a"... political rather than a judicial solutions" to the land claim. Wilbur R Jacobs, Dispossessing the American Indian 140 (1972) concludes that the treatment of the Australian Aboriginal peoples resulted from the "'... belief in the basic superiority of individuals of European ancestry, which entitles white peoples to a position of dominance and privilege.'" According to Nettheim, at 108-11, Australian Aboriginal peoples have been pursuing claims in the areas of rights associated with lands, selfmanagement, assistance based on need and as compensation for past dispossession, and cultural identity. The aboriginal peoples of New Zealand, the Maori, have also ".. suffered from their status as dependent wards of the state" according to Fleras and Elliott, at 176. See Fleras and Elliott, at 172-218, for a discussion of the Maori's struggle for sovereignty. The 1840 Treaty of Waitangi established the Maori-British relationship in New Zealand and followed many of the political and legal patterns which occurred in Canada, Australia and the United States.
40 Joseph P. Secola, The Judicial Review of John Marshall and its Subsequent Development in American Jurisprudence, 18 LincolnL. Rev. 1, 3 (1988).
41 Generally see Beveridge, supra note 16, at 535-540. Nullification refers to the
17


point that in the early 1830s Marshall said, "I yield slowly and reluctantly to the
conviction than our Constitution cannot last."* 42
The authority of the Supreme Court was also in question, especially after
Jefferson was elected President in 1801. The 1803 case of Marbury v. Madison43
forced the issue of the role of the Court in judicial review.
Marshall knew that Jefferson was waiting for him to exert himself and the power of the Court against the executive or the Congress so Jefferson could ensure a permanent weakening of the Supreme Court. ...Marshall handled it skillfully and with admirable wisdom by setting down ... some doctrines that limit the courts but give them the authority of judicial review.44
theory that a state could nullify federal law because ultimate sovereignty was with the state rather than with the Union. Since 1816, the southern states, especially South Carolina, had questioned the authority of the United States to impose a tariff believed to favor the northern states. Talk of Nullification increased after the passage of the 1824 and 1828 Tariff Acts. Another issue involved in nullification was whether Georgia and other states or the United States determined Indian policy.
42 Leonard Baker, John Marshall: A Life in Law 718( 1974).
43 The Constitution of the United States with Case Summaries 77 (Edward C. Smith & Harold J. Spaeth eds., Bicentennial ed. 1987). Marbury v. Madison involved the case of Marbury petitioning the Court for a writ of mandamus, under the Judiciary Act of 1789, to force Secretary of State Madison to deliver to Marbury his commission as justice of the peace. The commission had been signed but not delivered by the previous Secretary of State, John Marshall. Marshall, now Chief Justice, ruled that the Court only could issue the writ under its appellate jurisdiction according to the Constitution, Article III, § 2. The original jurisdiction provided by the 1789 Congressional Judiciary Act was unconstitutional because it was in conflict with the Constitution. This opinion established the precedent for judicial review of federal and state legislative actions.
44 Secola, supra note 40, at 5-6.
18


This decision involved the only federal statute to be found unconstitutional during Marshall's tenure. "This ... reveals Marshall's view of a limited role for the judiciary. The Supreme Court was to be the guardian of the Constitution, not a policy making branch that analyzes the law of its co-equals with political biases."45 Another view of Mar bury is that it "...'lays the foundation of Supreme Court predominance over executive and legislative powers' and ... the decision established 'judicial review as essential to the rule of a written constitution'.... "46
There continued to be a question of the authority of the Court, with some believing that "by 1810 the Court was not only independent but also a sturdy and respected branch of the national government. Its attention focused on preserving the Constitution as the bulwark of individual liberties, the 'bill of rights' for liberal Americans."47 Such a belief in the Court's independence was certainly not unanimous, as was demonstrated by Wirt's argument for the plaintiffs in Cherokee Nation v. Georgia. ".. .what is the value of that government in which the decrees of its courts can be mocked and defiled with impunity."48
45 Id. at 15.
46 John Brigham, Political Epistemology, in John Marshalls Achievement Law, Politics, and Constitutional Interpretations 163 (Thomas C. Shevory ed., 1989).
47 Francis N. Stites, John Marshall Defender of the Constitution 115 (Oscar Handlin ed., 1981).
48 Peters, supra note 17, at 154.
19


There was much at stake for the United States and for the Supreme Court with every decision that was rendered by the Court. These issues also created an environment that shaped the Court's opinions, including the cases in the "Marshall Trilogy".
B. Discussion of Cherokee Nation v. Georgia The importance of Cherokee Nation is not found solely in the holding, but also in the dicta of the opinion. Several statements and passages from this opinion have had enormous implications in U S. Indian law and policy since the decision in 1831. These following key passages must be examined in terms of Marshall's actual opinion as well as the subsequent interpretations and consequences of the decision in law and policy. 1
1. Consideration of the Cherokee Nation as a Foreign State
When presented with the motion from the Cherokee Nation for an injunction against the State of Georgia, the U S. Supreme Court was faced with determining whether it had jurisdiction in the case. As indicated above, Article HI, § 2 of the U.S. Constitution acknowledges the Court's original jurisdiction in cases that arise between a state of the U.S. and foreign states. The Cherokees argued that they possessed all of the attributes of a foreign, sovereign state and that the United States had already recognized their status as a foreign state by enacting treaties with them.
20


Marshall acknowledged that the Cherokee Nation had the character of a state and that it had been treated as a state.49 However, a majority of the justices did not agree that the Cherokee Nation constituted a foreign state. Marshall agreed with the argument that the Cherokees were not a state of the union and that as individuals, they were aliens,50 but Marshall did not accept the Cherokees1 assertion that if as individuals they are aliens, then as a collective group the Cherokees are alien or foreign to the United States.51 As mentioned above, Marshall reasoned that the territory of the Cherokee Nation was physically located within the boundaries of the United States and therefore it was not geographically foreign. As also mentioned above, the Cherokees had placed themselves under the protection of the U.S., giving the United States the exclusive right to regulate trade with them and to manage the Cherokees' affairs through treaties.52 Furthermore, the Supreme Court's opinion in Johnson v. McIntosh stated that the Indian nations no longer had absolute title to then-land but had right only of occupancy, with the United States holding ultimate title. Marshall went on to write that the Constitution differentiated between foreign nations
49 30 US. at 16. "So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of the majority of the judges, been completely successful. They have been uniformly treated as a state, from the settlement of our country." (emphasis added)
50 Id.
51 Id. at 16-17.
52 See supra note 17.
21


and Indian tribes in the commerce clause, indicating that the Framers viewed Indians as being a distinct and separate group from foreign states or States of the Union.53
The Court was faced with the dilemma of reconciling the previous legal and political actions of the United States, such as treaty-making, which acknowledged the sovereignty of Indian nations, with actions that might be construed as restricting their sovereignty. Political ramifications also had to be considered. Barsh and Henderson attempted to explain Marshall's thinking on this point:
As foreign nations, tribes' external sovereignty could not be restricted except by their consent; as domestic subdivisions they could not be saved from the police power of the states unless they were states of the Union themselves. Marshall tried to suggest the best of both principles: that tribes are so far foreign as to be immune from internal sovereignty of the states, but so far domestic as to be limited by the internal sovereignty of the United States.54
In the opinion, Marshall stated that"... the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else."55 Thompson and Story, in their dissenting opinion discussed below, disagreed with Marshall and argued that Cherokee Nation was a foreign state as defined by accepted legal principles.
53 30 U.S. at 18; U.S. Constitution, Article I, § 8, cl.3: To regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
54 Russell L. Barsh & James Y. Henderson, The Road 54 (1980).
55 30 U.S. at 16.
22


2. "Domestic Dependent Nation the Future of a Nation Turns on a Phrase
Instead of accepting the Cherokee Nation as a subject nation at the mercy of the states or as a foreign nation free from control of the United States, Marshall declared the Cherokees "...may, more correctly, perhaps, be denominated domestic dependent nation."56 As indicated above, the Cherokee Nation could not be a foreign state because as the opinion went on, "[tjhey occupy a territory to which we assert title independent of their will, which must take effect in point of possession, when their right of possession ceases. "57 Based on treaties between the United States and the Cherokee Nation, Marshall reasoned that the Cherokees were dependent because they are under the protection of the U.S.58 With the stroke of the pen and despite other law to the contrary,59 the Cherokee Nation lost its status as an independent sovereign nation and, from the U.S. legal perspective, became a nation inferior to a superior United States.
3. The Roots and Consequences of the Trust Relationship as a Juridical Construct
Marshall extended his newly created domestic dependent category for the Cherokees with a term of art that survives to the present. The Cherokees were stated to be "in a state of pupilage" and their relationship with the United States was said "to
56 Id. at 17.
57 Id.
58 Id.
59 See supra notes 23-24 and accompanying text.
23


resemble that of a ward to his guardian."60 There have been different interpretations of Marshall's use of the terms "pupilage" and "ward to his guardian". "In feudal English law, wardship was an incident of fee ownership" an application that would be consistent with a belief that the United States had absolute title to Indian land 61 Another possible interpretation of "pupilage" can be found in Roman law, which considered that a "civil guardian and ward...enjoyed a special secondary significance describing small, noncitizen households patronized by politically powerful citizens."62 Williams traces the concept of "guardianship" back to Vitoria's assessment of the Spanish theory that Christian nations had a responsibility to civilize the Indians.63 However, the most frequent interpretation of this part of Marshall's opinion is the English common law usage of "guardianship," which is taking the role of a parent or a caretaker for a minor child or incompetent person. This interpretation is undermined, however, by Blackstone's interpretation of English common law, by which a guardian
60 30.U.S. at 17 (emphasis added).
61 Barsh & Henderson, supra note 54, at 55. Wardship is described as occurring "[wjhen a tenant died leaving a minor child as heir, the lord of the fee estate was entitled to manage and enjoy the profits of the inheritance until the heir attained the age of twenty-one."
62 Id. at 55-56.
63 Williams, supra note 10, at 104. Williams interprets Vitoria as saying that guardianship might be justified if Indians were unfit to administer their own affairs," as if the natives were infants." But Vitoria began his discussion with the disclaimer that "[tjhere is another title which can indeed not be asserted ...."(emphasis added) See infra notes 192-193 and accompanying text for further discussion on Vitoria's writings.
24


cannot have an interest in a ward's estate.64 Since the U S. claimed absolute title to Indian land, the relationship creates an inherent conflict of interest for the U.S. Out of Marshall's use of the words "pupilage" and "ward to guardian" grew the doctrine of a trust relationship between Indians and the United States.65
C. Marshall's Majority-Opinion Rationale Marshall was cognizant of the fact that there was more at stake in Cherokee Nation v. Georgia than the rights of the Cherokee people. The political and legal environment of the United States during the early 1800's was very unsettled. The Supreme Court was fighting for its existence, the states of the Union were striving to increase their sovereignty, and the Federal Government was trying to maintain the Union. All these factors played a role in Marshall's actions surrounding this case and on the opinion he rendered.
1. Legal Reasoning
In Johnson v. McIntosh, Marshall had already stated that although the Indians' title to lands had never been extinguished and they retained the right of occupancy,66
64 Barsh& Henderson, supra note 54, at 55.
65 Generally see David E. Wilkins, The U.S. Supreme Court's Explication of 'Federal Plenary Power: 'An Analysis of Case Law affecting Tribal Sovereignty, J886-1914,
18 Am. Indian Q. (Summer 1994). Wilkins traces the impact of the trust relationship to demonstrate that through acts of Congress, the judiciary, and administrative actions, the sovereign political arid legal status of American Indians was at times supported, but most frequently was diminished.
66 21 U.S. at 583.
25


absolute sovereign title was held by the United States.67 Marshall sidestepped the legal question of the right of Georgia to enact laws that encroached on the sovereignty of the Cherokee Nation by denying jurisdiction in the case before the Supreme Court. The opinion ends with the statement that the case "...savors too much of an exercise of political power, to be within the proper province of the judicial department"68 and adds that "[i]f it be true, that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted."69 There was some speculation that Marshall was unwilling to ignore permanently the legal questions surrounding the Cherokees and the"... dictum at the end of his opinion ... was a deliberate 'design to operate on the public mind adversely to Georgia and the President', and to affect the political situation."70 With the closing statement of the dictum, Marshall managed to keep the issue of the Cherokees' rights alive while at the same time, ensuring the continued survival of the Court.71
67 Id. at 587-8.
68 30U.S. at 20.
69 Id.
70 1 Charles Warren, The Supreme Court in United States History 749 (rev. 1926). Van Buren held this opinion and was thought to be representing Jackson's view.
71 Id. at 749-50. The decision caused controversy throughout the United States. Supporters of states' rights claimed the Court had decided in their favor while at the same time being forced to acknowledge that the Constitutional system worked even as they sought Nullification. Some supporters of the Court viewed the Cherokee decision as a betrayal that was decided on grounds other than the rule of law. With the dicta, Marshall attempted to leave an opening for future actions to support the Cherokees' claims and to increase public support against the President and Georgia.
26


2. Political Pressures
There were very powerful political ramifications attached to Cherokee Nation
v. Georgia. If the Supreme Court agreed that the Cherokee Nation was a foreign state
and heard the case under its original jurisdiction, then issues of states' sovereignty,
federalism, and the authority of the Supreme Court would all come to the forefront.
The controversy, first between the Cherokees and Georgia, and then between the Jacksonians and their opponents, was to become a contest matching the Supreme Court against Georgia and the President. The new issue was nothing less than the nature of the Union and the authority of the Supreme Court as the final arbiter of the constitutional system.72
Nullification had already created a crisis between some states and the Union. The Cherokee Nation had previously pleaded its cause to Jackson and Congress.73 Jackson had indicated that "he was powerless to protect them from the sovereign State of Georgia"74 and "...refused to honor federal treaties, or to curtail this assertion of
See Baker, supra note 42, at 740. Baker comments that "Marshall... seemed anxious to stir up public feeling, to keep the case alive. ..perhaps he hoped that continued publicity might goad the administration into action. Or perhaps he believed the case would come again before the Supreme Court in another form, so he would have a second opportunity to consider the issue."
72 Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics and Morality, 21 Stan. L. Rev. 500, 509 (1969).
73 Id. at 505.
74 Robert N. Clinton et al., American Indian Law: Cases and Materials 13 ( 3d ed. 1991).
27


state rights. "75 Marshall was well aware of the likely repercussions that would occur with a decision that supported the Cherokees' writ of injunction. "Most Georgians believed ... that the United States has no business making treaty guarantees to Indians adverse to the rights of the state .... Under inherent sovereign rights of the state, devolved from the British Crown, Georgians were the proprietors of Georgia."76 The State had indicated that it would ignore any opinion against the state by refusing to respond to the motion.77
Marshall was also faced with the possibility that Jackson would not support the authority of the Court if Georgia ignored the Court's opinion. The very existence of the Court would be in jeopardy if states, the President, and Congress ignored or disrespected with impunity, the power of the Court.
The Court could not rule in favor of them [Cherokees] because Jackson would have ignored its ruling in order to keep Georgia happy. Further, a ruling in favor of the Cherokees would have given Congress the added impetus to destroy the Court's power to hear cases arising in the states. Without the power to review, the federal government would
75 Jill Norgren, Lawyers and the Legal Business of the Cherokee Republic in Courts of the Unites States, 1829-1835, 10 Law & Hist. Rev. 253, 263 (1992).
76 Young, supra note 14, at 61.
77 Warren, supra note 70, at 732-33. The State of Georgia asserted its intent to ignore any opinion of the Supreme Court by its actions in the related case involving Com Tassel, a Cherokee Indian. Com Tassel had been arrested by the state, under the recently enacted Georgia law, for murdering an Indian on Cherokee land. As a further demonstration of its sovereignty in addition to refusing to respond the Supreme Court writ, Georgia immediately executed Com Tassel under state law.
28


have been rendered powerless in the face of state incursions on federal law, thereby making a mockery of the Supremacy Clause.78
Marshall clearly realized the contradiction between a legal interpretation that was consistent with the rule of law as he understood it and the political considerations that he had to make to ensure the survival of the Court in the federal structure of the U.S. At one point, Marshall went so far as to say that he wondered if the Supreme Court would survive in light of such a crisis.79
By denying the Cherokee Nation status as a foreign state, the Court avoided, at least temporarily, a constitutional crisis with the President and Congress. Marshall admitted that"... the Supreme Court would not enter into a political struggle with the President of the United States"80 over the Cherokee case. Political expediency apparently prevailed over the rule of law, and the independent sovereignty of the Cherokee Nation was sacrificed to ensure a secure, co-equal position for the Supreme Court in the federal system.
78 Ronald A. Berutti, The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians, 17 Am. Indian L. Rev. 291, 298-99 (1992).
79 William F. Swindler, The Constitution and Chief Justice Marshall 20 (1978).
"The aging Chief Justice seemed less equal to the task of confronting an aggressive Executive in the days of Andrew Jackson than he had been in the days of Thomas Jefferson. ..Marshall was clearly temporized, holding the Cherokees had no standing in the Court to contest Georgia's blatantly unconstitutional expropriating of their land.
To his old friend, Justice Story, the failing Chief wrote that he saw no way out the this dilemma and was on the verge of resigning."
80 Baker, supra note 42, at 739.
29


After the Cherokee v. Georgia opinion was rendered, apparently remorseful for his betrayal of jurisprudential integrity for the sake of political opportunism, Marshall "apologized for ... his decisions)..." and said that "in writing the decision he did not have time to consider its various ramifications...."81 Marshall believed his opinion looked at the issue from a very narrow perspective and did not present the overall question related to the rights of the Cherokees.82
D. Reconsideration of the Cherokee Nation as a Foreign State 1. International Law
The United States, being a relatively new country, had not developed an extensive body of US. case law. However, a study of historical legal writings shows that for centuries, legal scholars had contemplated the rights of nations. Numerous legal theorists and jurists provided guidance on the central issue in Cherokee Nation v. Georgia. Was the Cherokee Nation a foreign state? Some legal scholars whose writings speak directly to the rights of nations, and upon whom the lawyers and the Court relied for authority, were Emmerich de Vattel, Hugo Grotius, and Franciscus de Vitoria. The primary focus here will be on the impact of Vattel and Grotius with Vitoria's influence being discussed later in this article.
a. Vattel. Emmerich de Vattel (1714-1767) was best known for Le Droit des Gens {Law of Nations, 1758) and he "...was cited frequently in court cases from 1789
81 Id.
82 Id. at 739-740.
30


to 1820."83 His writings were extensively cited in the arguments and opinions of Johnson v. McIntosh and Cherokee Nation v. Georgia 84
Vattel's definition of a nation or a state clearly applied to the political status of the Cherokee Nation:
A Nation or a state is ... a body politic, or a society of men united together for the purpose of promoting their mutual safety and advantage by combined strength. From the very design that induces a number of men to form a society which has its common interests, and which is to act in concert, it is necessary that there should be established a Public Authority, to order and direct what is to be done by each in relation to the end of the association. This political authority is the Sovereignty, and he or they who are invested with it are the Sovereign ,85
According to Vattel, self-government was the principal criterion for sovereignty, and sovereignty required only that a state be governed by its own laws and authority.86 As mentioned above, when a less powerful state forms an alliance with a more powerful state for the purpose of protection, the less powerful state does not lose its
83 Helen W. Winston, Comment, 'An Anomaly Unknown:'Supreme Court Application of International Law Norms on Indigenous Rights in the Cherokee Cases (1831-32), 1 Tulsa J. Comp. & Intl L. 339, 346 (1994).
84 Examples of Vattel being cited as an authority include the arguments for Johnson at 567, 568, 569 and Thompson's opinion in Cherokee Nation at 53. See infra notes 118,120 and 127 and accompanying text for examples of Sergeant's and Wirt's use of Vattel as an authority in their arguments in Cherokee Nation.
85 Emmerich de Vattel, The Law of Nations lib. 1, c. 1, § 1 (Joseph Chitty trans., 6th Am. ed., Philadelphia, T. & J.W. Johnson 1844) (emphasis in original).
86 Winstqn, yupra note 83, af;374.
31


sovereignty and is still an independent state under the Law of Nations.87 Vattel further clarifies that states united in an alliance "...will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on it, in virtue of voluntary engagement. A person does not cease to be free and independent, when he is obligated to fulfil engagements which he voluntarily contracted."88 Vattel's theory appears strongly to support the proposition that when the Cherokee Nation treated with the United States for protection, it did not relinquish its sovereignty but remained an independent state.89
The Christian, colonizing countries claimed that the Indians were uncivilized hunters and gatherers,90 not cultivating the land as Vattel stated was required by nations.91 92 However, Vattel also stated that a nation had "no right to enlarge its boundaries ... but in proportion as the land in its possession is incapable of furnishing it with necessaries.1,92 The colonizing European countries claimed the land and overarching sovereignty on the basis that the Americas were uninhabited by civilized
87 See supra note 24 and accompanying text.
88 Vattel, supra note 85 and accompanying text.
89 Id. at lib. 1. c. 16, § 192.
90 The Cherokees, as were many indigenous peoples of the Americas, were accomplished and extensive agriculturalists, a fact that defeats this specious argument on its face.
91 Vattel, supra note 85, at lib 1, c. 7, § 81.
92 Id.
32


nations. Vattel questioned whether the colonizers could claim title to a land that Europeans had never, in fact, possessed.93 Certainly, the Cherokee Nation and other Indian peoples had a stronger claim of possession than the Europeans. Further, Vattel stated that treaties are not based on religion; "the law of nature alone regulates treaties of nations: the difference of religion is a thing absolutely foreign to them."94 It logically follows then that theologically rooted justifications in this regard must fail.95
Vattel distinguished between native citizens and foreigners by describing native citizens as the people who were bom in the country and foreigners as "people who are permitted to settle and stay in the country."96 Based on this distinction, the Cherokee Nation and the United States were foreign to each other, even though geographically the U.S. territory came to envelop that of the Cherokee.
According to Vattel, the Indian nations possessed the legal status of states and were foreign to the United States. An objective reading of Vattel by the Supreme Court should have led the justices to the conclusion that the Cherokee Nation was a
93 Id. at lib.l, c. 18, §208.
94 Id. at lib. 1, c. 12, § 162.
95 Newcomb, supra note 9, at 308-9, 336. The relationship between the United States and Indians is based on the Doctrine of Discovery, which was characterized as the relationship between a Christian nation and heathen, non-Christian peoples. According to Newcomb, it is preposterous to "... accept a judicial pretention based on religious and cultural prejudice that asserts that their [Indians] rights to complete sovereignty and to territorial integrity may be impaired, diminished, denied, or displaced simply because they were not Christian at the time of the European arrival to the Americas."
96 Vattel, supra note 85, at lib. 1, c. 19, § 212-213.
33


valid party to the case based on the Cherokees' standing as a foreign state in a controversy over which the Court had original jurisdiction.
b. Grotius. Hugo Grotius (1583-1640) is often called the "father of international law" based on his renowned treatise De Jure Belli ac Pads (On the Law of War and Peace), written in 1625.97 His first legal treatise, De Jure Praedae (On the Law of Prize, 1605), was written in response to questions raised by shareholders in the East India Company concerning "whether it was proper for captors to receive as 'prize' the proceeds of property captured from the enemy" .98
Grotius described the state in a manner similar to Vattel: "A state is a perfect body of free men, united together in order to enjoy common rights and advantages."99 As was mentioned above, he disputed the claims of Christian, colonizing countries that uncultivated lands are available for discovery and dispossession, stating that"... any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste land, but as the property of the first occupier, whether it be the King, or a whole people."100 Additionally, Grotius wrote that a sovereign state may allow strangers to settle on the land and still retain all the rights of sovereignty for itself.101
97 Edward Dumbauld, The Life and Legal Writings of Hugo Grotius vii (1969).
98 Id. at 7, 25.
99 Hugo Grotius, The Rights of War and Peace: Including the Law of Nature and of NATioNsBook 1, c. 1, § 14 (A C. Campbell trans., Westport, Hyperionl993) (1901).
100 Id. at Book II, c. 2, § 4. Also see supra note 4 and accompanying text.
101 Id. at Book H, c. 2, § 17.
34


Grotius' theory was based on the "concept of a state of nature in which all people exist, possessed of natural rights, including that of self-preservation."102 The natural-law theory of Grotius was binding on the sovereign states as well as on people not organized into states and on individuals.103 According to Winston, Grotius argued in his 1532 lectures, De India and De Jure Belli,"... that according to the dictates of natural law Native Americans were the true owners of their lands, and a foreign nation could not claim title through discovery alone"104 thus supporting Indian nations' claims of sovereignty. Stated another way,"... establishing proprietary right on a first come first served basis did not necessarily disturb sovereign right, as such possession could be valid only with the consent of the original inhabitants."105
According to Grotius' interpretation, international law recognized that the Indian nations, and thereby the Cherokee Nation, did not lose their sovereignty by allowing foreigners to settle on their land. Equally important, title claimed by discovery, even if, arguendo, such title was legitimate, did not mean that the original peoples lost their sovereignty.106 According to Grotius, treaties could be enacted
102 Winston, supra note 83, at 342.
103 Dumbauld, supra note 97, at 61.
104 Winston, supra note 83, at 343-44.
105 L.C. Green & Olive P. Dickason, The Law of Nations and the New World 235 (1989).
106 James Muldoon, The Americas in the Spanish World Order: The Justification for Conquest in the Seventeenth Century 29 (1994). "... Grotius argued that the inhabitants of the newly discovered lands had a perfect right to their lands and
35


between equal or unequal powers with the treaty obligations being equal or unequal, and the obligation of the treaty might or might not affect the sovereignty of the lesser power.107 The Cherokee Nation argued it was a sovereign independent nation which had not given up any essential sovereign qualities through treaties with the United States.108 This belief was supported by Grotius' perspective that treaties should be written in a manner that portrayed the meaning interpreted by all the parties.109
Based on Grotius' authority, the Cherokee Nation satisfied the Constitutional criterion of a foreign state over which the Court had original jurisdiction if the Cherokees were involved in a conflict with a state of the U.S. His interpretation of
government, a right not taken from them by their status as infidels."
107 Winston, supra note 83, at 346. "Treaties can be made between unequal powers, and treaty obligations themselves can be equal or unequal. For a superior power, an unequal obligation is one in which it gives something without getting anything in return. For the inferior power, an unequal obligation is a suppression of privileges. This may or may not be attended with a diminution of sovereign power."
108 See infra notes 114 and 128 and accompanying text for supporting documentation of the Cherokees' beliefs.
109 Winston, supra note 83, at 349. "Regarding treaty interpretation,. ..language should be used in its common sense; provisions should be given the meaning attached to them at the time of making by the parties; ambiguities should be determined in context." According to Felix Cohen, Handbook of Federal Indian Law 3 7 (William S. Hein 1988) (1942), the Court has held that treaties should be liberally construed to favor Indians. Examples of the Court's opinions supporting liberal construction include. Choctaw Nation v. U.S. 318 U.S. 423,431 (1943) ambiguous expressions must be resolved in favor of Indians; McClanahan v. Arizona State Tax Commission 411 U.S. 164,174 (1973) treaties should be construed as the Indians would have understood them; and Choctaw Nation v. Oklahoma 397 U.S. 620, 631 (1970) as first articulated in Worcester 31 U.S. 515, 551-554, 582 (1832).
36


treaty making further supported the Cherokees* claims that they had the status of a free, independent, and foreign state based on their co-equal sovereign relationship with the United States.
2 John Sergeant and William Wirt's Arguments on Behalf of the Cherokee Nation
Sergeant110 and Wirt,111 attorneys for the Cherokee Nation, filed a motion for an injunction against the State of Georgia claiming that under Article III of the Constitution the Supreme Court had original jurisdiction because the case involved a foreign state, the Cherokee Nation, and a State, Georgia.112 Counsel for the Cherokees acknowledged that there were political issues surrounding Cherokee Nation v. Georgia but stated the case should be considered based on the legal issues.113
110 Norgren, supra note 75, at 256. Sergeant was a congressman, the political and legal advisor for the Second Bank of the United States, and a vice-presidential candidate in 1832.
111 Burke, supra note 72, at 508. William Wirt had been the Attorney General for twelve years under Monroe and Adams and resigned when Jackson was elected President. Wirt ran for President against Jackson in 1832.
112 Warren, swpra note 70, at 731-32. Prior to bringing the case to the Supreme Court, a favorable legal opinion supporting the Cherokees was obtained from Ex-Chancellor James Kent and concurred with by Daniel Webster, Ambrose Spencer (formerly Chief Justice of New York), and other members of the bar. Kent's opinion can be read in Peters, supra note 17, at 225-248. Also see Wirt's June 21, 1830 letter to Judge Carr, in 2 Memoirs of the Life of William Wirt 254 (John P. Kennedy ed. 1860), in which he writes that the Cherokees had been advised by some members of Congress to bring the question of their rights, under treaties, before the Court.
113 Peters, supra note 17, at 38, 65. "Mr. Sergeant,...said...he should confine himself strictly and entirely to the judicial aspect of the question, avoiding all political
37


Sergeant stated that the Cherokees were approaching the Court as a "nation of Indians, a foreign state" and as a party to a case that arises under a treaty with the United States.114 The United States had acknowledged the Cherokees as a Nation in the Treaty of Hopewell, the Treaty ofHolston, and other treaties.115 In fact, "[f]rom the first settlement of the country by Europeans, the Cherokees existed as an independent nation. They never became incorporated with the European settlers, nor subjected by them. It is only by one of these modes, or by utter extinction, that they could cease to exist as a nation."116 Sergeant uses Johnson v. McIntosh to demonstrate that the Supreme Court itself had acknowledged that Indian nations are sovereign.117 Vattel and Grotius are also cited as authorities for establishing that the Cherokees were a state according to most legal scholars.118 Sergeant argued that
considerations, and every topic which did not conduce directly to a legal conclusion." Wirt said : "...[t]he complainants and their counsel are fully aware of the delicacy of this question. They feel all the difficulties and embarrassments, judicial and political, which surround it."
114 Id. at 41.
115 Id. at 43,250-51. Treaty of Hopewell, Article 6: Agrees that any criminal who takes "refuge in their nation" shall be returned to the United States for punishment. Treaty ofHolston, Preamble: "The parties being desirous of establishing a permanent peace and friendship between the United States and the said Cherokee nation..."
116 Id. at 44 (emphasis in original).
117 Id. at 51. Sergeant citing Johnson v. McIntosh (21 U S. 593): "Admitting their [Indians] power to change their own laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it severalty, still it is a part of their territory, and is held under them, by a title dependent on their
laws... The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their
38


[t]he Cherokee nation is a state....It is a foreign state, for it is not a state of this union. It is no part of our body politic. The Cherokees have no influence in our affairs, and no control over our conduct; and we have none in theirs, save what is given by treaty, and that is by mutual stipulation between entire bodies politic, in their aggregate capacity, as equal contracting parties. It is no objection to this that they are inferior or dependent allies. A state is still a state, though it may not be of the highest grade, or even though it may have surrendered some of the powers of sovereignty....118 119
Wirt's argument built on Sergeant's assertion that the Cherokee Nation was a sovereign state and tied this sovereignty to the Law of Nations, stating "...the Cherokee Nation is a sovereign state, a natural society under the law of nations, since its right to govern itself according to its own pleasure has never been disputed, until this pretension which has been recently set up by the state of Georgia,..."120 Through
title under their protection, and subject to their laws."
118 Id. at 53. Cites Vattel, b.l, c.l and Grotius b. 1, c. 1,§ 14.
119 Id. at 53.
120 Id. at 71 (emphasis in original). Wirt supported his position by citing Vattel, B.l, c. 1 § 4: "Every nation that governs itself, under what form soever, without the dependence on any foreign power, is a Sovereign State. Its rights are naturally the same so those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws." Also see Vatcel, supra note 85, Preliminaries, § 4: "Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature, Nations, or sovereign states, are to be considered as so many free persons living together in the state of nature. It is a settled point with writers on the natural law, that all men, inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a
39


treaties, the Cherokee Nation and the United States created an alliance and "[t]he conditions of these unequal alliances may be infinitely varied. But whatever they are, provided the inferior ally receives to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state,... under the authority of the law of nations."121
In response to the contention that the Cherokee Nation had lost its sovereignty by conquest, Wirt pointed out that the during the Revolutionary War the Cherokees fought on the side of the British against the United States and that even after the end of the war, the fighting continued against the U.S. until the signing of the 1785 Treaty of Hopewell.122 Article 13 of the Treaty stated that the "...friendship re-established between the said states on the one part, and all of the Cherokees on the other, shall be universal; and the contracting parties shall use their utmost endeavours to maintain the peace given as aforesaid, and friendship re-established."123 Additionally, the Treaty outlined the process for the exchange of prisoners, established boundaries, and provided for their future relationship.124 Wirt pointed out that Article 8 of the Treaty
State, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to be sovereign. But the body of the nation, the State, remains absolutely free and independent with respect to all other men, and all other Nations, so long as it has not voluntarily submitted to them, "(emphasis in original).
121 Id. at 71-2 (emphasis in original).
122 Id. at 74-5.
123 Id. at 250-51.
124 Id at 249-51. The Treaty of 28 November 1785 (Treaty of Hopewell), included
40


clarified any question about the sovereignty of the Cherokee Nation. "It is a mutual stipulation by the contracting parties that retaliation shall not be practised on either side, 'except there is a manifest violation of this treaty; and then it shall be preceded first by a demandfor justice, and if refused, then by a declaration of hostilities.11,125 Even though the Cherokee Nation had placed itself under the protection of the United States,125 126 the Cherokees had clearly not given up the right to make war. Using Vattel as his authority, Wirt stated that "Sovereign nations alone have the right to make war."127 Wirt further argued that "[t]he concessions which they [the Cherokees]
the following Articles: Article 1 provided for the Cherokees' release of United States citizens, negroes and property taken during the war. Article 2 provided for the release of Indian prisoners by the United States. The boundaries of Cherokee territory were outlined in Article 4. Article 5 confirmed the right of the Cherokee Nation to punish U.S. citizens who attempted to settle on Cherokee land. The extradition of accused criminals who were United States citizens was addressed in Articles 6 and 7.
125 Id. at 77 (emphasis in original).
126 Id. at 249. Treaty of Hopewell, Article 3: "The said Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whatsoever."
127 Id. at 77 (emphasis in original). Wirt cites Vattel as his source: Book 2, c. 18, §336, "A sovereign ought, in all his quarrels, to entertain a sincere desire of rendering justice and preserving peace. He is bound before taking up arms, and after having taken them up, to offer equitable conditions, then alone he is justified in appealing to the sword against an obstinate enemy who refuses to listen to the voice of justice or equity." Book 2, c. 18, §339. "When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice." Book 3, c. 1, §1. "War is that state in which we prosecute our right by force. Book 3, c. 1, §2, "Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order." (emphasis in original).
41


make to the United States are voluntary concessions, and they are such as leave them, according to all the writers on the law of nations, in the character of a separate political community, a state and a sovereign state.1,128
Wirt continued the support of his argument that the Cherokee Nation was sovereign by reminding the Court that the 1791 Treaty of Holston was signed after the Constitution had been adopted and that Georgia, a state of the Union, was represented in the Congress that approved the Treaty.128 129 The Treaty of Holston included many of the same conditions as the Treaty of Hopewell.130 The first Article of the Treaty of Holston stated that the agreement was between the citizens of the United States and citizens of the Cherokee Nation, clearly indicating there was a distinction between the two nations.131 United States citizens were required to obtain a passport to enter the Cherokee lands;132 however, no such passport was required for U.S. citizens to enter
128 Id. at S3 (emphasis in original).
129 Id. at 84-6.
130 Id. at 86-94, 251-54.
131 Id. at 251. "There shall be perpetual peace and friendship between all the citizens of the United States of America, and all the individuals composing the whole Cherokee nation of Indians."
132 Id. at 252. Article 9 of the Treaty of Holston: "No citizen or inhabitant of the United States shall attempt to hunt or destroy the game on the lands of the Cherokees; nor shall any citizen or inhabitant go into the Cherokee country, without a passport first obtained from the governor of some one of the United States, or territorial districts, or such other person as the president of the United States may, from time to time, authorize to grant the same."
42


any of the states of the Union. The Treaty of Holston guaranteed to the Cherokee
Nation all the lands they had not ceded to the U.S.133
Wirt also addressed a question about the validity of treaties with the
Cherokees: "...whether treaties with heathens were binding on Christians...."134 He
cited Vattel's reference to Grotius' statement on this question: "[t]he law of nature
alone regulates the treaties of nations: the difference of religion is a thing absolutely
foreign to them."135 Wirt argues that even if there had been a question of the validity
of treaties made with "heathens", that was no longer an issue with the Cherokees.
If it be necessary to the political existence of a state, that they should cease to be wandering savages: they have ceased. They have become cultivators of the earth, herdsmen, and mechanics. If it is necessary to their political existence as a state, that they should have a settled and organized government, and a regular administration of laws and justice: they have them all; and, until this invasion of their rights, were prospering in peace and advancing rapidly in civilization and religion.136
Both Wirt and Sergeant provided substantial basis for the Supreme Court to acknowledge the Cherokee Nation as a sovereign, independent state. Wirt also set out to establish that the Cherokees were a foreign state as intended under the U.S.
133 Id. Article 7 of the Treaty of Holston: "The United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded."
134 Id. at 96.
135 Vattel, supra note 85, at Book 2, c. 12, § 162. Also see Peters, supra note 17, at
96.
136 Peters, supra note 17, at 96-7.
43


Constitution. He argued that in considering the status of a state, it had to be ... a state of the union or a state out of the union... which meant that [t]he ideas [were] purely political, not local or geographical."137 From a political position, the Cherokee Nation treated only with the United States and not with individual states of the Union, so in that capacity, the Cherokees had the same standing as any other foreign state that treated with the U.S.138 "...Webster says ... 'we call every country foreign which is not within the jurisdiction of our own government.'"139 According to Wirt, the Constitution used the terms "state of the union" and "foreign state" in a comparative sense when the original jurisdiction of the Supreme Court is outlined and "consequently ... a foreign state means any state which does not belong to the union," thus re-enforcing the notion that the question was one "of policy and jurisdiction, not one of locality."140 Wirt pointed out that if the issue was one of locality, it could also be questioned whether Mexico and Canada were foreign states.141
However, the issue of locality was complicated by the fact that the Cherokee land was located within "territorial limits of the United States,"142 more particularly,
137 Id. at 100 (emphasis in original).
138 Id. at 100-01.
139 Id. at 102 (emphasis in original).
140 Id. at 103.
141 Id. at 106.
142 Id.
44


within the lands considered to be the State of Georgia. In response to this question, Wirt stated "[t]hey lie exactly where they have lain for a time long antecedent to the existence of that state, and very probably, long antecedent to the existence of the monarchy from which that state derives its charter."143 Did the Doctrine of Discovery give the United States or the State of Georgia the right to claim the Cherokee land that lay within their boundaries? Wirt argued that the Doctrine of Discovery did not apply to Cherokee land because it had not been uninhabited when the Christian European arrived.144 Neither did Vattel's "law of necessity"145 apply.
143 Id. at 109.
144 Id. at 110. Wirt continues: "But in what chapter of the law of nations shall we find any such right recognized with regard to a country which was previously inhabited. The first discoverer of a desert island or country may acquire a right to take possession of it, on the principle of treasure found of which there is no prior owner. But no such right is acquired as to a country which is previously possessed by another nation." (emphasis in original) Norgren, supra note 75, at 269-70, 273, noted that in an 1824 opinion as the U.S. Attorney General (1 Op. Atty. Gen. 645), "Wirt wrote that it was 'fallacious1 to view the Cherokee Nation as having a sovereignty equal to that of the United States." Wirt changed his position in a 1828 opinion ( 2 Op. Atty. Gen. 110, 133) and "wrote, '[L]ong before the arrival of the Europeans on this continent, and from time immemorial, they [Cherokees] have been a sovereign nation, rightfully under the sole and exclusive government of their own laws '"
145 Peters, supra note 17, at 111-12. Based on Vattel, Wirt explains the law of necessity as the "...natural right to seek some other part of the world where the land is more abundant and the people few, or where the roving and hunter habits of the natives leaves the earth to be cultivated by those willing to do it" and the "people of Europe, too closely thronged and pent up to be able to draw a subsistence from the earth there, have a natural right to avoid death by famine by seeking to draw that subsistence from the earth here, where the natives had more land than they wanted...." (emphasis in original)
45


The Europeans came to the Americas, not seeking subsistence for survival, but for reasons such as seeking wealth or the freedom of religion.146 Even if Vattel's "law of necessity" had been applicable, he stated "in considering the right of a nation to take possession of an uninhabited country," he "limits that right to such an extent as it can actually people and cultivate ,"147 These restrictions from the law of nations on discovery supported Wirt's argument that no nation could claim Cherokee land or extinguish the sovereignty of the Cherokee Nation except by conquest or voluntary agreement.
Treaties between the Cherokee Nation and the United States further supported the claim that the Cherokees were a foreign state. Vattel stated that "[a] treaty ... is a compact made with a view to the public welfare by a superior power..."148 and that "[p]ublic treaties can only be made by the superior powers, by sovereigns, who contract in the name of the state. "149
Wirt summarized the reasons why the Cherokee Nation had the status of a foreign state: (1) "...[T]hey owe no allegiance to any government [other] than their
146 Id. at 112.
147 Id. at 113 (emphasis in original). Wirt refers to Vattel, Book 1, c. 18, § 208 which says: "The law of nations, will, therefore, not acknowledge the property and sovereignty of a nation over any uninhabited countries, except those of which it has actual possession, in which it has formed settlements, or of which it makes actual use."
148 Vattel, supra note 85, at Book 2, c. 12, § 152. Also see Peters, supra note 17, at 103.
149 Vattel,supra note 85, atBook 2, c. 12, § 154. Also see Peters,supra note 17, at 103.
46


own;" (2) they had been recognized as foreign by treaties with the United States;
(3) they had "exclusive possession of their territory" and determined their own laws,
(4) they had the right to make war which was acknowledged in treaties; (5) as individuals, they were aliens; (6) the Cherokee Nation was foreign to the Union, and (7) "[Civilization, religion, agriculture and a capacity for self-government [were] essential to the consummation of their character as a foreign state" 150 In conclusion, Wirt argued that the Cherokees "... unite in themselves every test which, according to the law of nations, is deemed essential to the constitution of a foreign state."150 151 The Cherokee Nation may not have been considered foreign from the standpoint of locality, but it was a foreign, sovereign, independent state from a political and jurisdictional position.152
3. Justices Johnson and Baldwin's Opinions in Opposition to Cherokee Nationhood Justices Johnson and Baldwin concurred with Marshall's decision that the Supreme Court did not have jurisdiction in Cherokee Nation v. Georgia. However, there was a difference of opinion about why the Court lacked jurisdiction.
Johnson did not agree with Wirt's and Sergeant's arguments that the Cherokees constituted a foreign state or even with Marshall's opinion that the Cherokees were a domestic dependent nation. "In Johnson's view the Cherokee Nation was not a state
150 Peters, supra note 17, at 131-32 (emphasis in original).
151 Id. at 132 (emphasis in original).
152 Id. at 138.
47


because of the character of the people."153 In addition to the question of the Cherokees' character, Johnson stated that another reason for not acknowledging the Cherokee Nation as having the status of a state was that "[t]hey never have been recognised as holding sovereignty over the territory they occupy."154 Johnson used the Doctrine of Discovery to justify his reasoning that the Cherokees were not an independent sovereign state.155 As further basis for his opinion that the Cherokee Nation was not a sovereign state, Johnson referred to the Treaty of Hopewell as containing "...the language of sovereigns and conquerors, and not the address of equals."156
153 JaneM. Smith, Republicanism, Imperialism, and Sovereignty: A History of the Doctrine of Tribal Sovereignty, 37 Buff. L. Rev. 527, 545 (1989). Johnson wrote in his opinion (30 U S. 21-22) "that there are strong reasons for doubting the applicability of the epithet 'state,' to a people so low in grade of organized society as our Indian tribes most generally are. I would not here be understood as speaking of the Cherokees, under their present form of government; which certainly must be classed among the most approved forms of civil government. Whether it can be yet said to have received the consistency which entitles that people to admission into the family of nations is...yet to be determined by the executive of these states. Until then...we cannot recognize it as an existing state, under any other character than that which it has maintained hitherto as one of the Indian tribes or nations."
154 30 U.S. at 22.
155 Id. "When the eastern coast of this continent... was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government, the right [discovery] was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverers. From that source we derive our rights...."
156 Id. at 22-23. Johnson cited the preamble to the Treaty: "'The commissioners...of the United States give peace to all the Cherokees, and receive them into the favor and protection of the United States....'"
48


Johnson contended that the Cherokee Nation was not acknowledged as a state by recognized nations.157 The Indian tribes were described as "...an anomaly unknown to the books that treat of states, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit and having neither laws nor government, beyond which is required in a savage state."158
Justice Baldwin, in his opinion, stated that there ".. is no plaintiff in this case."159 He went on to write that any sovereignty the Cherokees may have had was relinquished with the Treaty of Hopewell,160 apparently disregarding Vattel on the
157 Id. at 24. ",..[T]hat as a state they are known to nobody on earth but ourselves, if to us: how then can they be said to be recongised as a member of the community of nations?" Also see Priscilla Wald, Terms of Assimilation: Legislating Subjectivity in the Emerging Nation, 19 boundary 2, Fall 1992, at 77, 84: "Justice William Johnson, in a consenting opinion in Cherokee Nation, pointedly excludes the Indians from 'the family of nations' and consequently, from representation within the United States legal system and even, by implication, from the human family."
158 30U.S. at 27-28.
159 Id. at 31.
160 Id. at 39. "Unless the constitution has imparted to the Cherokees a national character, never recognized under the confederation; and which, if they ever enjoyed, was surrendered by the Treaty of Hopewell..." It was Baldwin's contention that Cherokees surrendered their national character through Article 9 of the Treaty by "... transferring to a foreign government the regulation of its trade, and the management of all their affairs, at their pleasure." See Peters, supra note 17, at 249-51, for lull text of the Treaty. Baldwin failed to acknowledge the complete Article of the Treaty which stated: "For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the
49


ability of sovereign nations to relinquish a portion of their authority without endangering other aspects of it, and "...that the Cherokees were then dependents, having given up all their affairs to the regulation and management of congress...."161 It was only through the generosity of Congress that the Cherokees were allowed to manage their internal affairs.162 Baldwin argued, as had Johnson, that the Doctrine of Discovery gave the European forefathers of the United States the right to absolute title with the Indians having only the right of occupancy.163 Based on Johnson v. McIntosh, Baldwin wrote that "...their [Indians] tenure was occupancy, their rights occupancy, and nothing more, that the ultimate absolute fee, jurisdiction and sovereignty was in the government...."164 and that relations between the Indians and the government were to be controlled by themselves.165
Indians, and managing all their affairs in such a manner as they think is proper." (emphasis added). Article 9 was just one of the conditions under which the United States agreed to provide protection for the Cherokees. Rights which were acknowledged by the Treaty, such as the exchange of prisoners, the right to punish U S. citizens in Cherokee territory, and the right to declare hostilities for violation of the Treaty, demonstrate that the Cherokees did not relinquish their sovereignty.
161 30 U.S. at 40.
162 Id. "...[TJhough they were permitted to regulate their internal affairs in their own way, it was not by any inherent right, acknowledged by congress or reserved by treaty, but because congress did not think proper to exercise the sole and exclusive right, declared and asserted...."
163 Id. at 48-49.
164 Id. at 48.
165 Id. at 49. "Those relations which were to subsist between the discoverer and the natives were to be regulated by themselves."
50


Justices Johnson and Baldwin ignored the writings of accepted legal authorities, Vattel and Grotius, which described the characteristics of a state166 in reaching their decision regarding the legal standing of the Cherokee Nation. Treaties were used to support the Justices' positions through the use of selective reading. Additionally, they ignored the Constitutional basis for treaties to be considered as supreme law with an legal standing equal to that of the Constitution. Rather, they appeared to bow to political pressures which supported state sovereignty over the Union and rendered an opinion which stated that the Court did not have jurisdiction because the Cherokees were not a state, much less a foreign state, which was entitled to a hearing before the judicial branch of the United States.
4. Justices Thompson and Story's Dissent in Support of Independent Cherokee Nationhood
Justice Thompson wrote a dissenting opinion joined by Justice Story at the suggestion of Chief Justice Marshall in response to Johnson's and Baldwin's opinions.167 Marshall apparently feeling remorseful for the political character of his own opinion, wanted one section of the case to reflect the legitimate legal position of
166 See supra notes 85 and 99 and accompanying text.
167 Burke, supra note 72, at 516. "Story later wrote that 'neither Judge T. nor myself contemplated delivering a dissenting opinion, until the Chief Justice suggested to us the propriety of it, and his own desire that we should do it.' Thompson wrote a dissent that appeared after the Court had risen. It clearly replies to the arguments of Johnson and Baldwin on the merits of the case-points that Marshall had necessarily left largely untouched. Baldwin even accused Thompson of drafting the dissent to answer his own opinion."
51


the Cherokee Nation, and so turned to Thompson. Thompson agreed with Marshall's opinion that "[r]elief to the full extent prayed by the bill may be beyond the reach of this court."168 According to White, Marshall"... wanted the 'plight' of the Cherokees made public; he also wanted the substantive issues raised by Georgia's dispossession of the Cherokees aired."169
However, Thompson argued that the Supreme Court did have jurisdiction to hear Cherokee Nation v. Georgia. As mentioned above, under the Article HI, § 2 of the U.S. Constitution, judicial power was extended to cases that arose under treaties made by the Untied States.170 Additionally, the Court had jurisdiction because, according to Thompson, the Cherokees were a state according to the Law of Nations171 and cited Vattel to support his argument.172
While Thompson conceded that the Law of Nations did not provide much enlightenment on the status of the Cherokees as a foreign state, he did not understand
168 30 U.S. at 51.
169 G. Edward White, 3-4 The Marshall Court and Cultural Change, 1815-35 730 (Abridged ed., Oxford University Press 1991) (1988). Also sze supra notes 81 and 82 and accompanying text.
170 30 U.S. at 52 ",..[T]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...."
171 Id. at 53. "Testing the character and condition of the Cherokee Indians by these rules, it is not perceived how it is possible to escape the conclusion, that they form a sovereign state!"
172 Id. at 52-53.
52


how they could be considered anything but foreign.173 Following the same arguments presented by Sergeant and Wirt, Thompson stated that although "...we do not recognise the right of the Indians to transfer the absolute title to their lands to any other than ourselves, the right of occupancy is still admitted to remain in them, accompanied with the right of self-government,... with the competency to act in a national capacity...."174 According to Thompson, the Cherokee Nation's standing as a foreign state should have been accepted based on their political sovereignty without consideration of their geographical location.175
The dissent went on to point out that the Cherokees were considered a nation with whom the United States had treated176 and as such, should be allowed to seek enforcement of the treaties.177 Again referring to the Law of Nations, Thompson stated that a treaty
173 Id. at 54. "...I do not understand, that it is denied by a majority of the court, that the Cherokee Indians form a sovereign state, according to the doctrine of the law of nations, but that, although a sovereign state, they are not considered a foreign state, within the meaning of the constitution."
174 Id. at 55.
175 Id. ",..[S]o long as they are permitted to maintain a separate and distinct government, it is their political condition that constitutes their foreign character, and in that sense must the term foreign be understood, as used in the constitution. It can have no relation to local, geographical or territorial position."
176 Id. at 58.
177 Id. at 59. "And if they, as a nation, are competent to make a treaty or contract, it would seem to me, to be a strange inconsistency, to deny to them the right and the power to enforce such a contract."
53


...is an agreement of contract between two or more nations or sovereigns, entered into by agents appointed for that purpose, and duly sanctioned by the supreme power of the respective parties. And where is the authority, either in the constitution, or in the practice of government, for making any distinction between treaties made with the Indian nations, and any other foreign power? They relate to peace and war; the surrender of prisoners; the cession of territory; and the various subjects which are embraced in such contracts between sovereign nations.178
Thompson turned to the contents of the treaties between the Cherokee Nation and the United States to further support his argument that the Cherokees constituted a foreign state. From the Treaty of Hopewell, Thompson referred to the arrangement for the exchange of prisoners and property, the establishment of a boundary line between the Cherokees and the United States, and the extradition of criminals as examples that supported the co-equal sovereign relationship between the Cherokee Nation and the U.S.179 Thompson viewed those stipulations, along with stipulations from the Treaty of Holston,180 as an acknowledgment that the Cherokees were an
178 Id.
179 Id. at 60-61. Also see supra note 124 and accompanying text for a discussion on these sections of the Treaty of Hopewell.
180 Id. at 61-62. Thompson referred to the 11th article of the Treaty of Holston which provided for the punishment of crimes committed by U.S. citizens in Cherokee territory and saw this as "...as explicit admission that the Cherokee territory is not within the jurisdiction of any state....It is a provision looking to the punishment of a citizen of the United States, for some act done in a foreign country. If exercising exclusive jurisdiction over a country is sufficient to constitute the state or power so exercising it, a foreign state, the Cherokee nation may assuredly, with the greatest propriety, be so considered. "
54


independent sovereign foreign nation.181
In response to the argument that the issues in question were of a political nature and therefore, not under the jurisdiction of the Court, Thompson agreed that "[t]he protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary."182 However, issues that involved the rights of property and persons did deserve a hearing in the courts.183 Thompson went on to say that some of laws enacted by the State of Georgia were "...so directly at variance with these treaties and the laws of the United States, touching the rights of property secured to them, that I can perceive no objection to the application of judicial relief."184 Further, Georgia's actions were assumed to be an assertion of a legal claim that should be considered by the Court .185
181 Id. at 61. "What more explicit recognition of the sovereignty and independence of this nations could be made? It was a direct acknowledgment, that this territory was under a foreign jurisdiction. If it had been understood, that the jurisdiction of the state of Georgia extended over this territory, no such stipulation would have been necessary."
182 Id. at 75.
183 Id.
184 Id.
185 Id. "The state of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed, in any manner whatever, as acts of war; but merely as an assertion of what is claimed as a legal right: and in this light ought they to be considered by this court."
55


Thompson, joined by Story, rendered a dissenting opinion stating that the Cherokees were a state according to the accepted definition under international law as described by Vattel and Grotius. Further, the Cherokee Nation was foreign to the United States from a political perspective. Therefore, it met the Constitutional criterion as a foreign state which could file suit in the Supreme Court under original jurisdiction against the State of Georgia. The Cherokees' treaties with the United States re-enforced their claim for relief from the actions of the State of Georgia. Regardless of the possible political ramifications, such as the State of Georgia ignoring the Court, President Jackson refusing to enforce the decision, or the possible demise of the Court, Justices Thompson and Story delivered an opinion stating that the writ should have been issued.186
E. Searching for Marshall's Intent of"Domestic Dependent Nations"
In his opinion for Cherokee Nation v. Georgia, Marshall stated that Indian nations "...may, more correctly, perhaps, be denominated domestic dependent nations."187 For us to better understand Marshall's fabrication of this crucial term of artifice, the source of this description must be examined. The ramifications of the statement must also be explored.
186 Id. at 80.
187 Id. at 17.
56


1. The Ancient Origins of Federal Indian Law: Franciscus de Vitoria
Franciscus de Vitoria (1480-1546), a Spanish, Dominican legal scholar, was the first international-law author to state that the Law of Nations applied to the relationships between independent states, including the Indians of the Americas .188 In 1532, Vitoria gave a series of lectures that addressed the rights of Indians and the legitimacy of the doctrine of conquest.189 He concluded that "...the indigenous nations of the Americas exercised true dominion over their property."190
Based on Vitoria's interpretation of the Law of Nations, the Cherokees could reasonably be considered an independent state. Further, the Cherokee Nation had allowed travel and commerce according to the terms of their treaties with the United States, consistent with the Christian, European derived Law of Nations, even though the Cherokees had not participated in the development of the law.
According to Williams, Vitoria also provided the framework for the concept of dependence: ".. .Victoria offered the.. .tentative assessment of the theory that Spanish rights in the Americas could be based on a Christian nation's guardianship responsibility to civilize backward, barbarous peoples who could not comport themselves according to the rationalized norms of natural law..."191
188 Williams, supra note 10, at 96.
189 Green & Dickason, supra note 105, at 28. Also see Williams, supra note 10, at 97.
190 Glenn T. Morris, In Support of the Right of Self-Determination for Indigenous Peoples under International Law, 29 German Y.B. Intl L. 277, 284 (1986).
191 Williams, supra note 10, at 104.
57


Vitoria did not state that the Indians were incapable of abiding by the norms of
the Law of Nations; he stated that //"the Indians were incapable it might be in their
interest for the Christian European colonizing countries to manage the Indians affairs.
There is another title which can indeed not be asserted .... It is this: Although the aborigines in question are...not wholly unintelligent, yet they are little short of that condition, and so are unfit to found or administer a lawful State up to the standard required by human and civil claims .... It might ... be maintained that in their own interest the sovereigns of Spain might undertake the administration of their country...so long as this was clearly for their benefit.... there would be some force in this contention; for if they were all wanting in intelligence, there is no doubt that this would not only be permissible, but also a highly proper, course to take; nay, our sovereigns would be bound to take it, just as if the natives were infants.. ..that any such interposition be for the welfare and in the interests of the Indians and not merely for the profit if the Spaniards."192
Vitoria also addressed the issue of whether Spain could declare a "just war" on the Indians and he concluded that the Indians had given no cause for such a war. The Indians allowed travel and commerce, thereby complying with the universal obligations of the Law of Nations.193
2. From Metaphor to Law: The Expansion of "Domestic Dependency"
Marshall, in his Cherokee Nation v. Georgia opinion, said the Cherokees "...may, more correctly, perhaps, be denominated domestic dependent nations" and
192 Francisco de Victoria, De Indis et de lure Belli Relectiones: The First Relectio § III, no. 18 (Ernest Nys, ed., John P. Bate, trans., New York, Oceana 1964) (1917) (emphasis added).
193 Id.
58


that "they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian."194 Just as Vitoria's statement that if the Indians were incapable they might benefit from colonizers' management of their affairs was interpreted to give the Christian Europeans license to manage the Indians' affairs because they were incompetent, so were Marshall's statements expanded beyond what was written in his opinion.
Felix Cohen, noted scholar of American Indian Law, has stressed that Marshall applied the idea of wardship to tribes, not to individuals, as a means of describing the relationship of the United States to Indian tribes within the territorial limits of the U.S.195 According to Cohen, "...in its original and most precise signification the term 'ward' was applied (a) to tribes rather than to individuals, (b) as a suggestive analogy rather than an exact description, and (c) to distinguish an Indian tribe from a foreign state."196
However, a common interpretation of Marshall's statements is that "...he seized the occasion to clarity not only the relationship of the Indian tribes to the government but to spell out a basis for the federal government's assumption of responsibility over Indian affairs."197 Marshall's creation of the term "domestic dependent nation"
194 30 U.S. at 17.
195 Cohen, supra note 109, at 170.
196 Id.
197 Clifford M. Lytle, The Supreme Court, Tribal Sovereignty, and Continuing Problems Into Indian Country, 8 Am. Indian L. Rev. 65, 69 (1980).
59


provided for the protection of the Cherokees, and subsequently all Indian nations, from encroachment by individual non-Indians and state governments while at the same time it diminished the sovereignty of the Indian nations and laid the foundation for the trust relationship between the U.S. and Indians.198 How this trust relationship has shaped the development of U.S. Federal Indian Law is discussed below.
3. The Legal/Political Dichotomy of the Doctrine
The use of the term "domestic dependent nation" and the analogy of "ward to guardian" were not founded on legal precedent or accepted legal thought of the time. As indicated above, the Cherokee Nation fit the description of a state according to the accepted legal authority of Vattel and Grotius. The Cherokees were a sovereign state governed by their own laws and they had not lost any of their independence or sovereignty by treating with the United States for protection.199 Likewise, the Cherokees lost no sovereignty or independence by allowing the European colonizers to settle on the land.200 The United States' interactions with the Cherokee Nation had historically been on the level of co-equal sovereign states. As has been demonstrated, the description of the Cherokees as a "domestic dependent nation" was not justified in U.S. or international law of that time.
198 Morris, supra note 190, at 295.
199 See supra notes 85-88 and accompanying text.
200 See supra note 106 and accompanying text.
60


Further, Vitoria's writings on the rights of the Indians did not allow for an
automatic position of superiority of the Christian Europeans.201 The capacity of the
Indians was one of the determining factors in whether the colonizers should take over
the management of the affairs of the tribes. Another factor to be considered was that
the Christian Europeans would take a guardianship role out of the best interest of the
Indians and not out of the self-interest of profit. The Cherokee Nation was capable of
managing its own affairs and had demonstrated this ability by enacting a written
constitution in 1827 that included the establishment of a legal system.
Marshall did not provide a legal foundation for his opinion. Based on the
political environment discussed above, it is evident that Marshall was attempting to
avoid a political conflict and ultimately a constitutional crisis.202 According to
Coulter, Marshall used the same philosophy in rendering the opinion in Cherokee
Nation v. Georgia as he had in Johnson v. McIntosh. The U.S. claim to aboriginal
land in Johnson v. McIntosh was not a legal claim,
...but only a political position taken by the United States which the Supreme Court refused to question. Marshall himself admitted there was no basis for the assertion in established legal principles. So, when he uses this proposition to explain why Indian nations are to be called 'domestic dependent nations' in a 'state of pupilage,' it becomes clear that his opinion is based upon political positions taken by Congress and the Executive Branch. It is not a position based on independent legal
201 See supra note 192 and accompanying text.
202 See supra notes 79-80 and accompanying text.
61


principles. Marshall's remarks do not state what the law is but what the political position of the United States is.203
Coulter further argued that "[o]ne reason Marshall calls Indian nations 'dependent' and domestic' is that the United States [improperly] claims title to the Cherokee land."204
The decision rendered by Marshall in Cherokee Nation v. Georgia was based on political expediency, and by describing the Cherokees as "domestic dependent nations," he was able to sidestep the issues that might have arisen out of a decision based on legal precedent.
F. Did Marshall Intend to Create the Federal Indian Trust Relationship!
There is reason to question whether Marshall intended to create a trust relationship between the United States and Indian nations. After rendering his opinion in Cherokee Nation v. Georgia, Marshall acknowledged that he had not considered all the ramifications of his decision. As mentioned above, he requested that Thompson and Story write a dissenting opinion to balance the Court's decision, and he asked Peters to publish a more balanced presentation of the case.205
203 Robert T. Coulter, "A History of Indian Jurisdiction," in Rethinking Indian Law 5, 8 (National Lawyers Guild Committee on Native American Struggles, ed. 1982).
204 Id.
205 White, supra note 169, at 730. "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, Kent's opinion supporting the Cherokees on the jurisdictional issues and the relevant treaties and statutes. Also see supra notes 81-82 and 167-169 and accompanying text.
62


1. The Pre-Discovery Doctrine of Trusteeship
The federal Indian trust relationship had its roots in the philosophy attributed to Vitoria that the colonizing European countries had an obligation to manage the affairs of incompetent peoples,206 with Indians being considered savage barbarians incapable of being responsible, civilized people. The philosophy of Manifest Destiny was also part of the foundation of the trust relationship. "Under this philosophy [Manifest Destiny], the Americans believed that through Divine ordination and the superiority of the white race, they had a right to seize and occupy all of North America."207 Another similar philosophy, the "white man's burden,"208 was the belief that the under the guidance of the colonizers, the Indians could become civilized.
According to Wallace, Marshall's opinion in Cherokee Nation v. Georgia was not the first instance in which the issue of a trust relationship had arisen. The 1795 Treaty of Greenville "...contained language that implied that a guardian-and-ward relationship would henceforth obtain between the government of the United States and the Indian tribes within its territory. In effect, the United States government assumed
206 See supra note 191 and accompanying text.
207 Morris, supra note 190, at 299. Also see Reginald Horsman, Race and Manifest Destiny: The Origins of American Racial Anglo/Saxonism (1981) and Richard Drinnon, Facing West: The Metaphysics of Indian-Hating and Empire Building (1980).
208 Clintonet al.,supra note 74, at 16. "The white man's burden" was "[t]he conception of the Indians as ignorant savages without law or governance in need of supervision and protection...."
63


responsibility for ensuring that Native Americans would be dealt with fairly and honorably in the future.... "209
Cohen stated that Marshall's use of the "...concept of wardship was [based on] the acceptance of that status, in effect, by the Indian tribes themselves: 'They look to our government for protection....'"210 According to Cohen, this acceptance by Indians is demonstrated by the fact that "[f]or many years after the decision in Cherokee Nation v. Georgia, the Indian tribes continued to emphasize, in their treaties with the United States, their dependence upon the protection of the Federal Government. "211 Cohen's generous interpretation, though, ignores the fact that such language was that of the US. and not Indians, and that many of the treaties were signed under force and coercion.
2. Implications of Trusteeship After Cherokee Nation
Marshall did not cite any legal or scholarly source for the use of the analogy of "...Indians as persons 'in a state of pupilage,' whose 'relation to the United States
209 Anthony F. C. Wallace, The Long, Bitter Trail: Andrew Jackson and the Indians, 27 (1993). Many of the Indian nations sided with the British during the Revolutionary War from as early as 1786 and continued until 1795 when a peace settlement was reached. "... [I]n 1794 a better-organized expedition.. .finally defeated the confederate warriors in Ohio at the Battle of Fallen Timbers. At the Treaty of Greenville the next year, the Indian tribes ceded much of Ohio to the United States but retained a large part of the territory that had been lost in the earlier, fraudulent, treaties."
210 Cohen, supra note 109, at 170.
211 Id.
64


resembles that of a ward to his guardian'" which became the foundation of the Federal Indian trust relationship.212 Neither did Marshall "...relate the trust principle to any specific creating document. Generally, a trust does not arise unless, among other requirements, both a creating instrument and a present declaration of an intent to create a trust exist."213
The U.S. Constitution provided only for the Congress to regulate commerce with the Indian tribes 214 There is no authority given to manage the affairs of the Indian nations. Treaties obligated the United States to provide protection for the Cherokee Nation and to prevent encroachment of non-Indians onto Indian land. As mentioned above, according to the principles of Grotius215 and Vattel,216 the Cherokees were a state, and they had not relinquished their sovereignty or independence in accordance with the provisions of the Law of Nations which allowed for unequal alliances.217 Marshall did not base the trust relationship on legal
212 Judith L. Andress & James E. Falkowski, Self-Determination: Indians and the United States The Anomalous Status of America's Domestic Dependent Nations', 8 Am. Indian L. Rev. 97, 100 (1980).
213 Jeri Beth K. Erza, Comment, The Trust Doctrine: A Source of Protection for Native American Sacred Sites, 38 Cath. U. L. Rev. 705, 709 (1989).
214 U.S. Constitution, Article I, § 8, cl. 3.
215 See supra note 99 and accompanying text.
216 See supra note 85 and accompanying text.
217 See supra notes 87-88 and accompanying text.
65


precedent or on accepted legal thought which had frequently provided a foundation for judicial decisions.
Even though Marshall may have been attempting "...to imply a federal duty of protection for Indians and their property against the hostility and land hunger of frontier whites,"218 there was no legal basis for the establishment of the Federal Indian trust relationship. "He [Marshall] effectively traded away the rights of American Indians in exchange for retention of the Supreme Court's power."219
218 Richard B. Collins, Indian Consent to American Government, 31 Ariz. L. Rev. 373, 374 (1989).
219 Berutti, supra note 78, at 302.
66


ID. WORCESTER V GEORGIA. AN UNEXPLAINED CONTRADICTION
With the integrity of the Supreme Court preserved after issuing his decision in Cherokee Nation v. Georgia, Marshall realized that because of the narrow focus of the opinion, it had taken on a greater importance than was intended.220 221 Even in his opinion,"... Marshall had spoken of the Cherokees' political and property rights and
had even hinted that the Court might protect their property rights in some future case
-.221
The case of Worcester v. Georgia concerned the rights of individual U S. citizens who resided in the Cherokee Nation without the consent of the State of Georgia.222 However, the issue in Worcester v. Georgia was really "...whether Georgia possessed sovereign authority over the Cherokee"223 or whether that authority belonged to the Federal Government. In his opinion Marshall stated:
220 See supra note 205 and accompanying text.
221 Burke, supra note 72, at 516. Also see White, supra note l69, at 730. "...[H]e was anxious to keep the 'Cherokee question' in the public domain so that pressure for a 'proper case with the proper parties' would continue."
222 Burke, Id, at 523. "That Marshall would have preferred a property-rights case was obvious. But he insisted that Worcester could not be less entitled to protection because his liberty was affected rather than his property rights."
223 Smith, supra note 153, at 546. Also see Burke, supra note 72, at 523." But Marshall did not confine himself to these narrow grounds [Worcester's rights]. He chose to declare the whole 'system of legislation lately adopted by the Legislature of Georgia in relation to the Cherokee Nation ... repugnant.
67


...[T]he acts of Georgia are repugnant to the constitution, laws and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the Union. They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognise the preexisting power of the nation to govern itself. They are in hostility with the acts of congress for regulating intercourse, and giving effect to the treaties.224
Marshall's decision in Worcester may seem to be in conflict with Cherokee Nation v. Georgia in that, it"... adheres more closely to the law of nations as laid out by Grotius and Vattel"225 and calls into question the absence of legal reasoning in both Johnson and Cherokee Nation. The opinion properly interpreted the Doctrine of Discovery226 and confirmed that
[i]t regulated the right given by discovery among European discoverers; but could not affect the rights of those already in possession, either the aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.227
224 31 U S. at 561-562.
225 Winston, supra note 83, at 355.
226 31 U.S. at 543. See supra note 26 and accompanying text.
227 M at 544.
68


According to White, while Marshall's opinion may have seemed to support the Cherokees' right to self-determination rather than a policy of paternalism by the United States, the
... purpose is to contrast the idea of natural rights and self-determination with what Marshall called "principle[s] suggested by the actual state of things." The Indian tribes may have had natural rights "from time immemorial," but those rights have 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."228
Consequently, Marshall seems to be admitting that the operative philosophy in Cherokee Nation was not respect for the rule of law, but surrender to political expedience.
By holding that states had no authority over the Cherokee Nation,"... Worcester certainly reached a conclusion beneficial to tribes, but the decision may have been compelled to a large extent by Chief Justice Marshall's nationalist [federalist] perspective."229 As was discussed above,230 the political climate of this time period was one of a struggle between the establishment a strong federal government and the assertion of state sovereignty. The authority of the Supreme Court was also in question. With the Worcester opinion, Marshall was able to affirm
228 White, supra note 169, at 733-34.
229 PhilipP. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381,405 (1993).
230 See supra notes 40-48 and accompanying text.
69


the right of the Court to render decisions concerning the constitutionality of state actions and laws231 and to support the authority of the Federal Government over state governments.
Worcester is often viewed as the "... most persuasive and elaborate pronouncement of the federal government's trust responsibility to tribal nations and as a strong statement on tribal sovereignty...."232 However, this opinion seems to be more about the struggle for power between the states and the Union than about the rights of the Cherokee or any other indigenous nation.
231 There was a concern of whether the Court's decision would be enforced because of President Jackson's anti-federalist position and his questioning of the Court's authority. However, the President was never called upon to enforce the decision. Also see Warren, supra note 70, at 757-59.
232 D. E. Wilkins, The Cloaking of Justice: The Supreme Court's Role in the Application of Western Law to America's Indigenous Peoples, Wicazo SA: Rev., Spring 1994, at 1, 7.
70


IV. THE CHEROKEE CASES AS FOUNDATION FOR ALL SUBSEQUENT
U S. INDIAN LAW
Marshall's decision in Cherokee Nation v. Georgia and its accompanying
terminology of "domestic dependent nation," "trusteeship," and "guardianship," has
provided the foundation for Federal Indian Law as it has developed from 1831 to the
present. However, the impact of this decision has been extended far beyond the literal
words in the opinion. Coulter argues that Cherokee Nation should be read narrowly:
After a review of what the framers of the Constitution had intended when they wrote "Foreign State," the Court concluded that they did not mean Indian nations. That is all really the case stands for. It does not rule that the Indian nations are not nations within the meaning of international law.233
The use of the terms "domestic dependent nation", "state of pupilage" and "ward to his guardian" in the dicta of Marshall's decision "...were repeated and applied in hundreds of later cases to deny Indian jurisdiction and justify a multitude of crimes against Indian people. "234 Federal Indian Law has developed over time as courts rendered decisions and as Congress and government agencies enacted laws and regulations with very little basis for their actions in the Constitution.235 According to
233 Coulter, supra note 203, at 8.
234 Id. Also see Barsh & Henderson, supra note 54, at 61. "Marshall's unfortunate references to 'dependency' and 'wardship' were frequently repeated by later Courts... "
235 Sidney L. Harring, Crow Dogs Case 1-2 (reprint 1995). "Based on scant constitutional framework for a conflict over the whole of North America, nineteenth-century judges carved out federal and state Indian law one case at a time. The core of
71


Smith, "...much of Indian law is judge-made, having developed with little guidance from the Constitution or any other source of law. In creating and developing Indian law, federal judges drew on their ideas and assumptions about sovereignty, the power and role of the government, and the role of the citizen."236
Following the decisions rendered by the Supreme Court in the Marshall Trilogy, the relationship between the Indians and the United States was more strongly affected by the previously enacted 1830 Indian Removal Act (4 Stat. 411, C. 148 ),237 which supported the principle of the Indians as wards. This Act "...authorized the President to remove any Native nation with territory east of the Mississippi River to the unsettled territory west of the Mississippi River."238 The Bureau of Indian Affairs was authorized on June 30, 1834,239 which transferred "...Indian affairs from the War Department to the Interior...."240 reinforcing the concept of the Indians being
U S. Indian law turns on two clauses in the Constitution. The first, the Indian Commerce Clause, grants Congress the right to 'regulate Commerce. with the Indian tribes.' The second grants the president the power to 'make Treaties' with the advice and consent of the Senate. A third clause, exempting 'Indians not taxed' from the population base that determined the representation in the House of Representatives (contained in the same clause that counts 'three-fifths' of all other persons, referring to slaves), has had less significance ...."
236 Smith, supra note 153, at 527-28.
237 Cohen, supra note 109, at 72, 491.
238 Morris, supra note 190, at 300.
239 Cohen, supra note 109, at 72, 493, (4 Stat. 735, C.162).
240 Wilkins, supra note 232, at 7.
72


domestic dependent nations rather than foreign states. Additionally, in 1871, the Congress unilaterally suspended the making of treaties with Indian nations.241
However, in 1883, the Supreme Court upheld the concept that Indian nations had internal sovereignty in ex parte Crow Dog (109 U.S. 556) and "...held that, following Worcester, Indian tribes retained the right to their own tribal law as an inherent attribute of sovereignty; therefore, the courts of the United States lacked criminal jurisdiction over crimes committed between Indians in Indian country."242 According to Smith, the Court, while upholding the Indians' right to their own tribal laws, "...denied that the federal sovereign had criminal jurisdiction over intra-tribal crimes committed in tribal territory because the Indians were different from white people and could not live under the same laws. They differed from the members of white society, because they were dependent and uneducated."243
241 Ward Churchill & Glenn T. Morris, Key Indian Laws and Cases in The State of Native America: Genocide, Colonization, and Resistance 14 (M. Annette Jaimes, ed., 1992). "The suspension was a rider attached to the annual Indian Appropriations Act ... (ch. 120,16 Stat. 544, 566, codified at 25 U.S.C.. 71): '[N] Indian nation or tribe within the territory of the United States shall [henceforth] be recognized as an independent nation, tribe, or power with whom the United States can contract by treaty: Providedfurther, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made with any such Indian nation or tribe.'"
242 Harring, supra note 235, at 100-01.
243 Smith, supra note 153, at 557 (emphasis added). Cites Justice Matthew in Crow Dog (109 U.S. 568-69): "[Tribal members] were ... to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards subject to a guardian not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of
73


This affirmation of internal sovereignty proved short-lived as the Indian nations lost their right to complete internal control of judicial matters with enactment of the
1885 U.S. Major Crimes Act.244 The constitutionality of the Act was tested in the
1886 case of the United States v. Kagama (118 U.S. 375)245 The Court upheld the constitutionality of the Act while following and expanding the example laid out by Marshall in Johnson v. McIntosh and Cherokee Nation v. Georgia. "Unable to locate a constitutional basis for its decision to allow federal imposition of criminal jurisdiction into Indian Country, the Court instead crafted an ingenious and bizarre two-pronged explanation: alleged Indian helplessness and federal ownership of the land."246 However, this decision went even farther than Marshall had in Cherokee Nation. "...Justice Miller transmuted John Marshall's analogy of Indians as 'wards' to their federal 'guardians,' to a principle of law. Miller said: 'These Indians tribes are wards
pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor and by education, it was hoped might become a self-supporting and self-governing society." (emphasis added)
244 Morris, supra note 190, at 301." "Under the Act, Native peoples who were charged with any of seven enumerated crimes were subject to the jurisdiction of the federal courts of the United States, whether the alleged crime was committed within or outside the territory of the Native nations."
245 Smith, supra note 153, at 559. This case involved an Indian, Kagama, who killed another Indian on a reservation in California. Kagama was tried in federal court under the Major Crimes Act. The case was brought before the Supreme Court to determine if the Act denied states of their rights to try such cases in state courts under state laws.
246 Wilkins, supra note 232, at 9.
74


of the nation. They are communities dependent on the United States."247 Smith continues:
The Court upheld the Act as a valid exercise of inherent authority over the tribes. "The power of the General Government over these remnants of a race ... is necessary to their protection .... It must exist in the [federal] government because it has never 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."248
Kagama manipulated the foundation of Cherokee Nation v. Georgia and expanded the meaning of Marshall's opinion beyond what was stated in the dicta. Harring summarized:
As one of the most important cases in federal Indian law, Kagama stands for principles opposite those advanced in Crow Dog and Worcester. Kagama left Indian tribes mere "wards" of the federal government, totally dependent on the will on Congress, which could assert its political power even to their termination as tribes and the expropriation of their lands without compensation. Kagama is the judicial embodiment of Congress's policy of forcing assimilation of the tribes, recognizing none of their sovereignty, none of their status as domestic nations.249
247 Id. Citing from 118 U S. at 383-384 (emphasis in original).
248 Smith, supra note 153, at 559. Citing 118 U S. at 384-85.
249 Harking, supra note 235, at 142.
75


Wilkins describes this case as the "... beginning of plenary power as 'virtually absolute' ..." and as "... a formal announcement that 'henceforth there would be no constitutional limitation on the federal government in its dealings with Indian tribes.'"250
This lack of limitation on governmental actions was demonstrated by the passing of the General Allotment Act in 1887.251 This bill provided for the division of Indian land into individual allotments for distribution to individual members of Indian tribes with the balance of the land being made available to non-Indians. With this division and distribution of land,"... the traditional economic and political systems of the Native nations were replaced by European institutions, and the colonial subjugation of the Native peoples became more complete."252
The 1903 case of Lone Wolfv. Hitchcock253 "...dealt specifically with whether Congress had the power to abrogate treaty-recognized tribal property without tribal consent."254 The treaty in question was the 1876 Treaty of Medicine Lodge, which
250 Wilkins, supra note 232, at 9 (emphasis in original).
251 Vine Deloria, Jr.& Clifford M. Lytle, American Indian, American Justice 9 (1983). Also known as the "Dawes Act" (25 U.S.C.A. § 331).
252 Morris, supra note 190, at 302. Also see Coulter, supra note 203, at 11. "The Allotment Act gave the President power to take land away from Indian nations and give it to individual Indians. It was based on the idea that the United States actually owned all the Indian land and could do anything it wished, whether the Indians agreed or not. In other words, the United States now claimed total power and dominion over all Indian territory."
253 187 U.S. 553 (1903).
254 Wilkins, supra note 232, at 9.
76


provided for the approval of three-fourths of the male tribal members in order to cede land. The United States had "... maneuvered a surrender of reservation land and ... made unilateral changes in it before congressional ratification."255 Building on the foundation that grew out of Marshall's use of "dependent" and "ward", the Court ruled unanimously"... that the United States, as part of its plenary power over Indian affairs, could abrogate inconvenient sections of treaties with Indians at any time it chose, with or without Indian consent, and without disturbing the force of the treaty itself."256 The opinion continued that the Court"... could not 'materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians.'"257 The Court's position, according to the opinion, was that "'plenary authority over the tribal relations has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.'"258 With the Lone Wolf decision inl903,
255 Milner S. Ball, Stories of Origin and Constitutional Possibilities, 87 Mich. L. Rev. 8, 2280, 2303 (1989). "When the tribes sought judicial relief they pointed to the numerous defects: unilateral changes, payment a fraction of the land's worth, consignment of the Indians to remaining portions of the reservation that could not be made to support them, procurement of signatures through fraud, and the absence of the necessary number of signatures."
256 Churchill & Morris, supra note 241, at 19.
257 Ball, supra note 255, at 2303. Citing 187 U.S. at 564.
258 Wilkins, supra note 232, at 10. Citing 187 U.S. at 565. Wilkins continues, citing the opinion at 566: "The Power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should
77


Marshall's analogy of the Indians' relationship to the U.S. resembling that of a "ward to a guardian" had been twisted by the Court to mean that the United States government was free to deal with the Indians in any manner it would choose. It was no longer necessary to even pretend that the government's actions were in the best interest of the Indians as would be expected under Vitoria's guardianship design. Furthermore, the Indians were at the mercy of the political branches of the government with virtually no hope of review or recourse from the judiciary. As explained by Harring,
...Kagama ... together with the ... Lone Wolf decision, not only wiped out that balance [between dependency and sovereignty], destroying sovereignty and making the tribes mere wards of the American nation, but also shifted the method of weighing tribal sovereignty from a complex balancing function in the federal courts to Congress's [sic] plenary power to simply do with the tribes whatever it chose.259
The Congress demonstrated that it would take advantage of the Court's ruling sanctioning plenary power by enacting the 1924 Indian Citizenship Act260 and the
be so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be available of from [sic] considerations of governmental policy, particularly if consistent with perfect good faith towards and Indians." (emphasis in original)
259 Harking, supra note 235, at 147.
260 Churchill & Morris, supra note 241, at 15. (ch. 233, 43 Stat. 25) The Act "conferred U.S. citizenship on 'all non-citizen Indians bom within the territorial limits of the United States.'"
78


1934 Indian Reorganization Act.261 The 1946 Indian Claims Commission was established by Congress to insure that the Indian nations which had land illegally taken by the United States would receive just compensation as there was no provision for the return of land.262 The Congress continued to control Indian affairs at its pleasure with a series of termination acts in 1953, which established a policy that allowed for the termination of specific Indian nations, and that suspended federal services and recognition to the specified tribes.263 In 1954, the Congress relinquished some of its control (guardianship) over a number of Indian nations by placing them under "varying degrees of state jurisdictional authority."264
The Court reaffirmed the Doctrine of Discovery, included in the Johnson v. McIntosh opinion, in the 1955 case of Tee-Hit-Ton v. United States.265 In the case, Alaskan Natives claimed compensation for timber taken from Native land. However, the Court ruled that the Natives could not establish title because there had never been any treaty or Congressional action acknowledging such title.
261 Id. (ch. 576,48 Stat. 948, codified at 25 U.S.C.. 461) This Act, also known as the 'Wheeler-Howard Act,' imposed a tribal council structure which each Indian tribe was to approve by referendum. However, the referendum was controlled by the Commissioner of Indian Affairs to ensure the desired outcome.
262 Id. (60 Sta/. 1049).
263 Deloria& Lytle, supra note 251, at 16-17. (1953 House Concurrent Resolution 108, 67 Stat. B132).
264 Churchill & Morris, supra note 241, at 15. (Public Law 280, ch. 505, 67 Stat. 588 codified in part at 18 U.S.C. 1162 and 28 U.S.C. 1360).
265 3 48 U S. 272 (1955).
79


In analyzing the status and rights of the Alaska Natives, Justice Reed relied on imperial images of sovereign power to hold that "Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law." Reed explained that the nation's expansion required that Congress be free and flexible in managing Indian affairs... 266
The Supreme Court 'mMcClanahan v. Arizona Tax Commission267 "articulated for the first time the notion that Indian sovereignty was a 'mere fiction' conveying no real legal entitlements, but which might serve as a convenient 'backdrop' against which the meaning of treaties and other agreements might be read."268 The opinion acknowledged "... that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government."269 According to Smith, the Court's opinion stated that
266 Smith, supra note 153, at 573. Smith also cites the bizarre historical revisionism of the court (348 U.S. at 289-91): "[EJvery American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conquerors' will that deprived them of their land .... In light of the history of Indian relations in this Nation .... it leaves with Congress, where it belongs, the policy of Indian gratuities for the termination of Indian occupancy of Government-owned land rather than making compensation for its value a rigid constitutional principle."
267 411 U.S. 164(1973).
268 Churchill & Morris, supra note 241, at 19. Also see Smith, supra note 153, at 576. The issue before the Court 'mMcClanahan was whether Arizona could tax the personal income of a reservation Indian which was earned on the reservation.
269 Smith, supra note 153, at 576. Citing 411 U.S. at 172.
80


...tribal authority had to be recognized by the federal government by either a long-standing practice or a definitive policy. Otherwise, the tribe was subject to state authority. The tribes' dependency on the federal government, which previously precluded state jurisdiction, no longer limited state authority over the tribes.270 271
Even though Marshall had acknowledged in Cherokee Nation v. Georgia that the Cherokees had internal sovereignty and had described them as a domestic nation, by 1973 the Court relied only on the term "dependent" from the Marshall's opinion. No longer did the Court even abide by the trust responsibility that had developed from Marshall's use of the analogy that the relationship "resembles that of a ward to his guardian." McClanahan allowed for state jurisdiction over Indians if there was no conflict with federal interests.
Two other cases further eroded Indian nations' sovereignty that had been acknowledged in Cherokee Nation. Oliphant v. Suquamish Tribe271 ruled that Indian nations had no criminal jurisdiction over non-Indians who committed crimes on their reservations.272 273 Likewise, the Court ruled in Montana v. United States273 that the Crow Nation could not regulate the hunting or fishing rights of non-Indians on the Big
270 Id. at 577.
271 435 U.S. 191 (1978).
272 Churchill & Morris, supra note 241, at 19.
273 450 U.S. 544(1981).
81


Horn River even though the river runs though land that had been reserved for the "absolute and undisturbed use and occupancy" by the Crow in a 1868 treaty.274
Finally, the Supreme Court's two decisions in the United States v. Mitchell case further defined the trust relationship in cases that arose out of a suit concerning the United States' management of forest resources on the Quinault Reservation.275 The first decision held that the General Allotment Act of 1887 had created a limited trust relationship that did not obligate the United States to manage such resources.276 However, the second decision ruled that while the General Allotment Act did not obligate the U S to manage Indian resources, a trust responsibility had been created through other statutes and regulations which required the federal government to assume "'...control over forest and property belonging to Indians.'"277
What began with Marshall's analogy of describing the relationship between Indian nations and the United States as "resembling that of a ward to a guardian" and an opinion that declared the Cherokees to be a "domestic dependent nation" has grown into the foundation for United States Federal Indian Law. In so doing, the Courts and the Congress, acting under the premise of plenary power, have developed a system of law that has essentially abolished the sovereignty of Indian nations and allowed the United States to maintain as much control over Indians and their land as the
274 Churchill & Morris, supra note 241, at 20.
275 William C. Canby, Jr. American Indian Law 38 (2nd ed.1991).
276 Id. 445 U.S. 535 (1980).
277 Id. at 38-39. 463 U.S. 206, 225 (1981).
82


Government desires. The result has been a duplicitous and destructive collusion between the federal judiciary and Congress, the benefits of the original treaty relationship between Indian nations and the U.S. virtually all flowing to the advantage oftheU.S.
83


V. CHEROKEE NATION V GEORGIA. GOOD LAW OR GOOD RIDDANCE?
After consideration of the progeny in law and policy of Cherokee Nation v. Georgia, the question arises as to whether there are reasons or grounds to overturn the decision. Worcester reaffirmed the original intent of the Doctrine of Discovery as being the right of the colonizing countries to claim prior land rights over other colonizers while at the same time upholding the inherent sovereignty of Indian nations. However, Johnson v. McIntosh had already laid the foundation for discovery by fabricating a fictitious title and vesting it in the United States, and had not been overturned by Worcester. The principle that the U.S. had become the supreme sovereign possessing ultimate title and political authority in the recently formed United States and its prospective territorial expansionism had been accepted as legal precedent. The principles of discovery were significantly expanded to deny "... effective rights of self-determination to indigenous peoples."278 The impact of the Doctrine of Discovery carried forward to the Cherokee Cases and mysteriously transformed Indian nations from independent sovereign states to U.S. dependencies.
Cherokee Nation v. Georgia described the Cherokee Nation as "perhaps, a domestic dependent nation" in order to deny its status as a foreign nation even though by accepted international legal criteria of that period, the Cherokees should reasonably
278 Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World. DukeL. J. 660, 675 (1990).
84


have been recognized as a state.279 If Marshall's opinion had accepted Wirt's and
Sergeant's arguments asserting the Cherokees' foreign state status, as did Thompson's
and Story's opinion, the Court would have recognized a co-equal relationship between
the United States and the Cherokees, which would have affirmed an entirely different
relationship based on equality of nations and not dependency. Although the Court did
not say that the Cherokees were actually a domestic dependent nation, only perhaps
that it described their status, the description was manipulated for political purposes
and became an accepted legal principle in U S. law.
The descriptive terms used by Marshall, "state of pupilage" and "their relation
to the United States resembles that of a ward to his guardian," were part of the dicta
and were not law per se. However, as discussed above, both the notion that Indian
nations are dependent and the operation in fact of the trust relationship have served as
the basis for Federal Indian Law. Furthermore,
[a]s domestic dependent nations, Indian tribes possessed sovereignty, but could not invoke the jurisdiction of the federal courts .... In short, the integrity of tribal sovereignty rested precariously on the whim of Congress owing, in the early years, to the Court's extraordinary deference to the political branches' exercise of the foreign affairs power in their dealings with the Indians.280
Cherokee Nation v. Georgia should be overturned. Savage argues that the Framers of the Constitution never intended for the United States to exercise any
279 See supra notes 85 and 99 and accompanying text.
280 Nell Jessup Newton, Federal Power Over Indians: Its Source, Scope, and Limitations 132 U. Pa. L. Rev. 195, 205 (1984).
85


plenary power over the American Indians and that no such authority exists without authorization of the Constitution.281 Treaties with the Indians "...presumed that... tribes were independent and sovereign; [they] being independent and sovereign, the Constitution could not confer upon the national government any domestic power over them. "282 Smith also argues that there was no basis for considering the Cherokees to be "domestic dependent nations" or to be in a guardian relationship with the United States:
Neither the regime of law under the Constitution nor the principles of international law could explain how tribes could be independent sovereigns but subject to federal sovereign authority....Congress and the federal judiciary have had to reach beyond the terms of the Constitution and international law to the principles of political organization and sovereignty which informed their visions of the world 283
281 Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 Am. Indian L. Rev. 57,115-116 (1991). "The United States -- its President, its Congress, and its Supreme Court can exercise no power over Native Americans unless the Constitution grants it. Examination of the text of the Constitution, the intentions of the Framers, contemporary notions about sovereignty, the records of the Continental Congress and contemporary treaties with Native American nations makes it clear that the Constitution has never granted to the United States a plenary power over Native Americans." The argument can also be made that even given Savage's point, that without the free, full, and informed consent of Indian peoples to recognize the authority of the U.S ., the United States claims of superior sovereign authority in U.S. Indian law is illegitimate.
282 Id. at 113.
283 Smith, supra note 153, at 580.
86


In light of the evidence that Marshall's opinion in Cherokee Nation v. Georgia was not based on accepted legal authority, but rather was rendered as a matter of political expedience to avoid a Constitutional crisis, the Cherokee decision should be overturned.
There may be those who would say such an action would not be possible, considering the vast implications for U.S. Federal Indian Law, and that because the ruling has stood intact for over 150 years, it should not be questioned. John W. Davis used the same logic in defense of segregation in Brown v. Board of Education284 285 Davis, representing the defendant, segregated school systems, argued that the principle of stare decisis, which would have left the fifty-eight-year-old precedent of Plessy v. Ferguson285 intact, should prevail over an obviously incorrect constitutional interpretation. Davis argued that Plessy should stand because "... somewhere, some time, to every principle there comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance."286 Stare decisis notwithstanding, the Court disagreed with Davis in Brown v. Board of Education and ruled that the separate-but-equal policy of Plessy v. Ferguson was unconstitutional and must be overturned.
284 347 U.S. 483 (1954).
285 163 U.S. 537(1896).
286 Richard Kluger, Simple Justice 671 (1975).
87


The Warren Court found that the Taney Court in 1896 had incorrectly interpreted the Constitution, upholding a legal-socio-political practice segregation that was, in fact entirely unacceptable as a matter of law.
Similarly, Cherokee Nation v. Georgia should be overturned as having no basis in the Constitutional or international law regardless of how long the decision has stood or the potential repercussions of the reversal.
88


VI. CONCLUSION
The "Marshall Trilogy" has been examined as the foundation for U S. Federal Indian Law, with an emphasis on Cherokee Nation v. Georgia. Each of the three cases was reviewed individually, and in relationship to each other. The legal basis for Cherokee Nation was considered in terms of international and domestic legal authority acceptable to U.S. courts287 of the early 1800s and in light of the political factors that influenced Marshall. As was documented by a review of the writings of Vitoria, Grotius, and Vattel, accepted legal authorities of the day, the Cherokee decision was rooted in political expediency, not law. When a Supreme Court decision that is arguably not based on law, is the foundation of the entire system of Federal Indian Law, then that decision must be called into question. If the federal system of the U. S. is premised on the principle of the rule of law, and if, in the case of the "Marshall Trilogy", the rule of law was ignored or violated, then the entire body of law that succeeds the "Trilogy" becomes suspect.288 Arguably, the Cherokee Nation v. Georgia decision should be challenged in the same vein that Plessy was challenged,
287 The scope of this paper did not cover the interpretation or analysis of these cases and developments from an indigenous or an indigenous law perspective.
288 The United States is critical of nations it considers to be lawless, operating outside the rule of law, such as the former Soviet Union, Iran, Iraq, and Libya. The U.S. also used the "rule of law" for its justification of waging the Persian Gulf War against Iraq in 1991. Generally see James Turner Johnson & George Weigel, Just War and the Gulf War (1991) and Jean Bethhe Elshtan et al., But Was It Just? : Reflections on the Morality of the Persian Gulf War (1992). However, the U.S. continues an illegal hypocrisy regarding the rule of law in its Federal Indian Law.
89


namely that it is bad law that has produced manifest unfairness and injustice in its application and extension. Along with the challenge should come a re-evaluation of all United States law and policy related to American Indians.
Wilkins describes Federal Indian Law as being "... haunted by paternalistic, sometimes racist, non-Indian attitudes..."289 An example of Wilkins' criticism is Marshall's description of the Cherokees' relationship to the United States through the analogy of "resembling that of a ward to his guardian." According to Deloria,
[subsequent generations of American politicians adopted this language as their excuse for stealing Indian lands, arguing that the Indians were legally incompetent an argument that did not hold much weight when the tribes ceded lands, since on those occasions the Indians were regarded by the law as highly skilled negotiators. Federal law has fluctuated back and forth between describing Indian tribes as quasiindependent and stipulating them wards of the government.290
The wrongs done to Indians on the basis of Marshall's opinions must be corrected not simply on moral grounds, but because it is bad law. This change will be difficult to accomplish, but that fact should be no excuse for allowing the construction of more injustice on top of indefensible case law. A starting point would be to overturn Cherokee Nation v. Georgia on the grounds that the decision was not grounded in law. Wilkins suggests that the process of rectifying the wrongs done toward Indians could begin by the United States "... disavowing the use of plenary
289 Wilkins, supra note 232, at 13.
290 Vine Deloria, Jr, Red Earth, White Lies 32 (1995).
90


power (read: virtually absolute), and by repudiating the doctrine of discovery."291 He goes on to recommend that the relationship between Indians and the United States could be improved by. returning to the basic political principles outlined in the Northwest Ordinance of 1787 which stated that 'the utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent.'"292
Savage's suggestions for correcting the system of Federal Indian Law go further. His recommendations are: (1) the United States should "confess the fallacy of policy grounded in 'manifest destiny"' and prevent with Congressional action any further erosion of Indians' self-determination; (2) American Indians should be allowed to decide whether they will be independent or become part of the U.S. society; and (3) Indians should have complete access to the judicial system and be able to challenge plenary power as a means of achieving self-determination and self-government.293
It is clear that good intentions or promises, not founded in law, will not change the political and legal reality of American Indians. There must be an elimination, or at the very least restrictions, of United States plenary power over Indian nations if these nations are to regain any level of the independent sovereignty necessary to control their own destiny.294
291 Wilkins, supra note 232, at 13.
292 Id.
293 Savage, supra note 281, at 118.
294 Wilkins, supra note 65, at 363. Citing Vine Deloria, Jr. "Beyond the Pale: American Indians and the Constitution" in A Less than Perfect Union (Jules Lobel, ed.
91


Action must be taken to reverse the harm that has been done to the Cherokee Nation and all other American Indians by Cherokee Nation and the subsequent law and policies that have been founded on that decision. If the "Marshall Trilogy" is allowed to stand, the United States will be forced to answer to the closing words of William Wirt's argument in Cherokee Nation v. Georgia.
I cannot believe that this honourable court, possessing the power of preservation, 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 fulfilment of our engagements. If truth and faith and honour and justice have fled from every other part of our country, we shall find them here. If not our sun has gone down in treachery, blood and crime, in the face of the world: and, instead of being proud of our country, as heretofore, we may well call upon the rocks and mountains to hide our shame from earth and heaven.295
1988)
295 Peters, supra note 17, at 158-59.
92


BIBLIOGRAPHY
Andress, Judith L., and James E. Falkowski, "Self-Determination: Indians and the United Nations The Anomalous Status of America's 'Domestic Dependent Nations,'" American Indian Law Review 8 (1980): 97-116.
Baker, Leonard. John Marshall: A Life in Law. New York: Macmillan Publishing Co,
1974.
Ball, Milner S., "Stories of Origin and Constitutional Possibilities," Michigan Law Review 87, no. 8 (August 1989): 2280-2319.
Barsh, Russel Lawrence, and James Youngblood Henderson. The Road: Indian Tribes and Political Liberty. Berkeley: University of California Press, 1980.
Berutti, Ronald A., "The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Nation," American Indian Law Review 17, no. 1 (1992): 291-308.
Beveridge, Albert J. The Life of John Marshall. Vol. 4. Boston: Houghton Mifflin Company, 1919.
Brigham, John. "Political Epistemology." In Marshall's Achievement: Law, Politics, and Constitutional Interpretations, edited by Thomas C. Shevory. New York: Greenwood Press, 1989.
Burke, Joseph C., "The Cherokee Cases: A Study in Law, Politics, and Morality," Stanford Law Review 21 (February 1969): 500-531.
Canby, William C., Jr. American Indian Law: In a Nutshell. St. Paul: West Publishing, 1991.
Churchill, Ward, and Glenn T. Morris," Key Indian Laws and Cases," In The State of Native America: Genocide, Colonization, and Resistance, edited by M. Annette Jaimes. Boston: South End Press, 1992.
Clinton, Robert N., Nell Jessup Newton, and Monroe E. Price. American Indian Law: Cases and Materials. 3rd ed. Charlottesville: The MichieCompany, 1991.
93