now let him enforce it

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NOW LET HIM ENFORCE IT

Now Let Him Enforce It

An Examination of the Marshall Trilogy – The Facts, Outcomes and Alternatives

Joel T. Dibrell

Klamath Community College

16 August, 2012

Author’s Note: Prepared for David Groff’s CJA 299 Special Studies: Native American Law

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Abstract

Collectively known as the Marshall Trilogy, the 3 major cases that shaped American Indian Law

for positive and negative and set the precedents for the future, these cases are: McIntosh v

Johnson, Cherokee Nation v State of Georgia and Worcester v State of Georgia. These 3 cases,

the final dispositions of the Supreme Court (specifically Marshall himself) and ultimately the

actual issues at stake in each case would ultimately set the stage for such future policies as

removal, termination, allotment, and eventually, tribal restorations and rights.

The question can be raised though, was Marshall aware of the far reaching consequences he was

helping to set into place for these peoples whom the United States, and before that the

Europeans, actively displaced? Also, how could things have gone had Marshall taken a less

central stance on the issues? Lastly, how did these issues actually give the United States and

Congress the power to commit the reprehensible, atrocious, and hard line acts that it did against

the American Indian tribes that it was said to be responsible to protect and guide?

Finally, a brief look at the laws and acts (or rather a small sampling thereof) that were

opened up by Marshall’s rulings and what they meant for the Indians, their tribes, homes and

way of life. Additionally, how these laws were actually intentional perversions of Marshall’s

rulings to benefit increased expansion of the United States rather than creating the protective

bubble around the tribes that was intended.

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John Marshall

Former continental soldier and the longest serving Chief Justice of the United States

(1801-1835), John Marshall’s decisions served to shape American Indian law and policy for

decades. In fact, much of the resultant laws that are in place today stem directly or indirectly

from the decisions made during his tenure and the three major cases involving American Indian

issues.

John Marshall served in the continental militia during the Revolutionary War from 1775-

1780. He was admitted to the Bar in 1780 and even practiced in politics from 1782-1801

including notable seats as Virginia House of Delegates and Council of State and most notably,

Secretary of State. He was appointed Chief Justice (after initially declining) in 1801 where he

served until his death in 1835.

Oft labeled as an Indian Sovereignty advocate, Marshall’s decisions rather seemed to

walk both sides of the fence but always leaning toward the middle ground as opposed to standing

either completely on the (at the time) more liberal side of the Indian tribes being their own

sovereign nation-states and the (at the time) more conservative side that the Indian tribes were

nothing more than scattered bands of savages living in the woods and blocking the road to

progress. Marshall’s decisions, upon review while only taking into account the situations at the

time, are very difficult to second guess without a massive amount of speculation and rabbit trail

following inherent therein.

Regarding his opinions and decisions, one thing can be certain: the stance he took was

aimed to protect the best interests of the United States while still trying to maintain as much

overall fairness on the part of the Indians as was possible. It can be assumed that his decisions

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probably weren’t the most popular and it can be seen as admirable that he chose to take a less

popular stance instead of adopting the easy one and going with the majority. However, it must

also be noted that in the more urban areas as opposed to the frontier, Indians were seemingly

seen as a novelty and their liberated way of life offered a sense of romanticism to the people

therein.

This is likely part of why he (quite successfully) attempted to straddle the fence on his

decisions and not lean overly far to one side or the other. A man in his position must always be

aware of the fact that he is still a man and still has to live with the people who have opinions on

his decisions. As such, the extermination of the Indians’ rights would have made him a hero to

the settlers and pioneers pushing west, but a villain to those who only read stories of the goings

on “out on the frontier”.

Johnson v. McIntosh (1823)

Abstract

To begin with, Johnson v McIntosh must be examined. The crux of this matter was that

one man had obtained land title to a tract from an Indian tribe in 1773 and 1775 while the other

had obtained land title to the tract of land from the United States government in the form of a

land grant in 1823. The issues at stake here were far more than just who owned the piece of land,

however. In this issue it was to be decided who the land belonged to in the first place, thus which

entity (tribe or US) had the right to transfer said land; thus the issue of land ownership rights of

the Indians was actually on the table for decision. As Marshall put it: “…the power of the Indians

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to give, and of private individuals to receive a title which can be sustained in the Courts of this

country.”(1)

This is one of those difficult cases to mitigate in a means that doesn’t establish a problem

for the United States government later on while not opening up the Indian tribes to outright

extermination just for their land. Marshall examines the doctrine of discovery and the long-held

ideal by European settlers that “discovery gave title to the government by whose subjects, or by

whose authority, it was made, against all other European governments, which title might be

consummated by possession.”(2). Inasmuch he concludes, when in relation to discovery “[The

Indians] rights to complete sovereignty, as independent nations, were necessarily diminished,

and their power to dispose of the soil at their own will… was denied by the original fundamental

principle, that discovery gave exclusive title to those who made it.”(3)

The United States acquired these aforementioned “discovered” lands by proxy at the

conclusion of the Revolutionary War whereby “the powers of government, and the right to the

soil, which had previously been in Great Britain, passed definitively to these States.”(4) He

further stipulates that “To leave [the Indians] in possession of their country, was to leave the

country a wilderness.”(5). As such, he chose to take the stance that “Indian inhabitants are to be

considered merely as occupants, to be protected, indeed, while in peace, in the possession of

their lands, but to be deemed incapable of transferring the absolute title to others.”(6). This put a

strict limitation on the rights of the tribes, limiting them to the right to exist and occupy their

land as the United States saw fit, but removing the right to actually own said land and thereby the

right to actually, sell, parcel, gift, or trade it to others.

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The Court’s ruling: “the plaintiffs do not exhibit a title which can be sustained in the

Courts of the United States.”(7). Was merely superficial, in and of itself, by direct comparison to

the decision that the Indians didn’t actually own their land. This would set a precedent which

would be exploited later. Specifically, it would be part of the vehicle by which the State of

Georgia would forcibly evict the Cherokee nation from its granted lands. This would also set the

stage for the United States to enact removal, allotment, reservation, and finally termination acts.

Alternative Outcomes

There are a couple ways this could have gone differently, depending on the stance taken

by Marshall and the Supreme Court. The first alternative to examine is the ruling that the

plaintiff held original land title because the Indians did indeed have ownership rights and the

ability to sell, parcel, gift, or transfer the land as they saw fit. This would have had a disastrous

future impact on the United States as a whole as it would have set the stage for a couple of

possibilities arising therein.

One major fact that cannot be ignored (and was likely ever-present in Marshall’s mind) is

that the United States’ inherited land was exclusively land taken from the pre-existing Indian

tribes by Great Britain to begin with. Regardless of whether this land was taken by treaty, by

force, by squatting, or by underhanded methods is irrelevant as, ultimately, if retro-active title

was granted to these lands by the United States, it would mean that fledgling U.S. was illegally

occupying lands belonging to separate sovereign entities.

Additionally, this would provide that the U.S. would be required to purchase (agreeably)

every acre of land back from the Indians. This is provided they’d have agreed to sell what was

taken from them to begin with; which in and of itself raises a new problem: if they don’t sell,

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what do we do then? Would the United States just say a blanket “F it” and just start taking the

land by force? Did the United States possess the resources and manpower to stage a massive

military action of this magnitude at the time? Unlikely, in fact, the United States at this time was

just above the economic status of a third rate power and militarily was quite weak and limited.

Certainly outnumbering the Indians in most locations taken separately, but on a continental scale,

if all the land (or even most of it) had to be retaken at gun and sword point, would have been

found quite wanting.

Another alternative that bears mention is the idea that the Indians had no rights

whatsoever to the land and were, at best, squatters or even, at worst, intruders, on their own

lands. Had the disposition of the Court gone this direction, it would have meant a fire sale on

previously held Indian lands with little to no amount of control held by the U.S. government. The

ensuing land wars would have devolved the United States into anarchy as whites pushing West

clashed with Indians and would, inevitably, petition the governments (state and federal) for help

which would have required a massive expenditure of manpower and treasure to dispatch troops

to protect the burgeoning settlements popping up all over the map. This would have over-

extended the United States both in army and in economics with little to no gain to the nation

proper.

Not to mention the chaos in the Courts as massive numbers of property disputes arose

and with so many moving and claiming and squatting, there would be no surveys or maps drawn

to effect resolution to the disputes. With no Indian tribes being able to give title and the United

States not being able to extend land grants that didn’t conflict because of impatience and greed

there would be no effective means by which to mitigate who actually had the original or even

correct claim to the lands in question. Additionally, murders and range wars would have run

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rampant across the frontier as people fought for the “best” tract of land. This very situation may

well have been the catalyst to end the “American experiment” in its adolescence and opened the

country to invasion and conquest by an outside power. More likely, powers plural though as

multiple nations jumped to grab the very land in dispute as well as that in possession already.

Given these extreme alternatives, it’s not hard to see why Marshall chose to make the

decision he did. While it does seem harsh from an Indian standpoint, it would seem Marshall

tried to keep things as ordered as possible without opening the door to all manners of potential

chaos from either side. While these examples do seem extreme, if one examines all of the

intrinsic facts regarding each, they are not so far-fetched ultimately and could easily be quite

likely actually.

However, as previously stated, this decision did have far-reaching consequences for the

tribes that Mr. Marshall may not have ever seen coming. For example, by granting occupancy

rights, it set a precedent for the United States to be able to remove, relocate, or just kick out the

Indian occupants at any point the winds of change blew in the right direction. By providing a

right to occupy, Marshall set up the removal of the Indians to the West where they were assured

permanent right to occupancy but a right to occupy is not the right to remain when the greater

need is the relocation or even concentration into smaller areas such as reservations or allotments.

All this would be able to conducted upon the auspice of protecting the tribes either from the

whites or even themselves but this point will be dealt with to greater extent in Cherokee Nation

v. Georgia (1831).

Cherokee Nation v. Georgia (1831)

Abstract

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Cherokee Nation v. Georgia is a pivotal case for establishing the status of tribes, their

governing and their futures in the United States. The issue at stake was the rights of the Cherokee

to set laws within their own lands or whether the jurisdiction of Georgia applied within their

recognized territory. Their territorial lines are directly recognized by the Treaty of Hopewell and

are to be inviolable by a state, such as Georgia.

A brief detour must be taken however, to recognize the significance to this case in the

issue of George Tassel. A Cherokee man who murdered another Indian within Cherokee territory

was tried and convicted by the state of Georgia. He contested this conviction under the rights of

the Cherokee to try and convict in their own courts and that he was not subject to the state’s

courts’ jurisdiction. Marshall upheld his plea, however, the state of Georgia openly defied his

writ by proceeding to hand George Tassel anyway, making no bones about the issue.

The treaty of Hopewell, signed 28 November, 1985 very clearly established the Cherokee

as a people at peace with the United States after the conclusion of the Revolutionary War. The

specific language in the treaty sections most relevant are sections III, IV & V directly quoted

here:

ARTICLE III.

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 whosoever.

ARTICLE IV.

The boundary allotted to the Cherokees for their hunting grounds, between the

said Indians and the citizens of the United States, within the limits of the

United States of America, is, and shall be the following, viz. Beginning at

the mouth of Duck river, on the Tennessee; thence running north-east to the

ridge dividing the waters running into Cumberland from those running into the

Tennessee; thence eastwardly along the said ridge to a north-east line to be

run, which shall strike the river Cumberland forty miles above Nashville;

thence along the said line to the river; thence up the said river to the ford

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where the Kentucky road crosses the river; thence to Campbell's line, near

Cumberland gap; thence to the mouth of Claud's creek on Holstein; thence to

the Chimney-top mountain; thence to Camp-creek, near the mouth of Big

Limestone, on Nolichuckey; thence a southerly course six miles to a mountain;

thence south to the North-Carolina line; thence to the South-Carolina Indian

boundary, and along the same south-west over the top of the Oconee mountain

till it shall strike Tugaloo river; thence a direct line to the top of the

Currohee mountain; thence to the head of the south fork of Oconee river.

ARTICLE V.

If any citizen of the United States, or other person not being an Indian,

shall attempt to settle on any of the lands westward or southward of the said

boundary which are hereby allotted to the Indians for their hunting grounds,

or having already settled and will not remove from the same within six months

after the ratification of this treaty, such person shall forfeit the

protection of the United States, and the Indians may punish him or not as

they please: Provided nevertheless, That this article shall not extend to the

people settled between the fork of French Broad and Holstein rivers, whose

particular situation shall be transmitted to the United States in Congress

assembled for their decision thereon, which the Indians agree to abide by.

ARTICLE V.

If any citizen of the United States, or other person not being an Indian,

shall attempt to settle on any of the lands westward or southward of the said

boundary which are hereby allotted to the Indians for their hunting grounds,

or having already settled and will not remove from the same within six months

after the ratification of this treaty, such person shall forfeit the

protection of the United States, and the Indians may punish him or not as

they please: Provided nevertheless, That this article shall not extend to the

people settled between the fork of French Broad and Holstein rivers, whose

particular situation shall be transmitted to the United States in Congress

assembled for their decision thereon, which the Indians agree to abide by.(8)

As can be seen, the language of the treaty does indeed provide very clear jurisdictional

lines, territorial boundaries and a relationship between the United States and the Cherokee

Nation. These are the points to which the Cherokee were pointing in relation to the state of

Georgia knowingly and intentionally violating the Treaty of Hopewell by enforcing state laws on

Cherokee citizens for crimes committed against other Cherokee (Tassel) as well as moving in

and settling on Cherokee land and claiming it as their own. This is likely due to the void left

between the Treaty of Hopewell (establishing land) and Johnson v. McIntosh (limiting land

rights).

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Johnson v. McIntosh established that the Cherokee had a right to occupy the land they

were on, not to own or sell it. But it failed to establish jurisdictional lines and which entity

governed the lands occupied by Indian peoples. Further, the question of the right to self-govern

was brought about and whether the Cherokee (in particular and Indians in general) had any

sovereignty recognized by the United States. The ultimate question arising out of this was: are

the Cherokee a sovereign state, a foreign state or a domestic dependent? In his opinion, Marshall

laid out the facts as:

“This bill is brought by the Cherokee nation, praying an injunction to restrain the

state of Georgia from the execution of certain laws of that state, which, as is

alleged, go directly to annihilate the Cherokees as a political society, and to seize

for the use of Georgia, the lands of the nation which have been assured to them by

the United States in solemn treaties repeatedly made and still in force.”(9).

Numerous controversies surrounded this case, including the third article of the

constitution and judicial power. Additionally, how it is extended “between a state or the citizens

thereof, and foreign states, citizens or subjects.”(10). The question of sovereignty and whether

the Cherokee nation could actually even bring suit against Georgia was also a key issue in

constitutional terms specifically.

This was a primary reason for the appeal to the Supreme Court in Cherokee Nation v.

Georgia. As Marshall had been previously sympathetic to the Cherokee’s right to its own courts,

it should be free from prosecution of offenders, white or Indian, on its land by the state of

Georgia. Marshall acknowledges the Cherokee’s existence as a state and the recognition therein

of the United States government. However, he raises the question of what type of state “Do the

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Cherokees constitute a foreign state in the sense of the constitution?”(11). This he recognizes

himself as the turning point about which the entire case and further the future of the tribe, the

land, states’ rights and all Indians revolve, thereby making it also the most difficult question to

answer. His awareness of the enormity of this question is expressed when he examines the fact

that one Indian tribe being a recognized foreign state would mean that all Indian nations would

have to be recognized as such

Marshall also acknowledges that “The condition of the Indians in relation to the United

States is perhaps unlike that of any other two people in existence… [their] reaction to the United

States is marked by peculiar and cardinal distinctions which exist no where else.”(12). The crux

of this matter was mainly that the language of the Constitution listed foreign nations and tribes

separately which must mean that the two are not one in the same and thus cannot be treated as

such. Further, under strict letter of the law, per the Constitution, tribes are not equal to nations.

The disposition adopted by the Court was that it did not have the jurisdiction to hear the

dispute and to deny the motion. Further, in regard to the Cherokee and their sovereignty Marshall

states: “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…[yet] 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.”(13). He further nods

to the Treaty of Hopewell stating that it was written in the “language of sovereigns and

conquerors, and not the address of equals to equals.”(14).

The just of the disposition was that Marshall could not recognize as a sovereign state as

the United States government itself had not. He also alludes to the fact that he felt the Cherokee’s

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form of government and their progression was the exception rather than the rule and basically,

one irregularity amongst the many more “uncivilized” tribes did not make them a sovereign state

in that right as it would require full recognition of all tribes as such. He explains that the United

States is in a supervisory role to the tribes “as a ward to his guardian”(15), establishing a

subservient role for all the tribes, including the highly advanced and civilized Cherokee Nation.

This decried them to be domestic dependent states under the tutelage, guidance and auspice of

the United States proper.

Alternative Outcomes

As with Johnson v. McIntosh, there are a number of alternatives that could have arisen

from the dispositions adopted by the differing Justices. The first alternative would be that the

Cherokee (and by proxy all tribes) are Domestic Sovereign nations. This would require a forced

cohabitation between whites and Indians and would limit the United States’ expansion westward

into these lands without clear policy and treaty. Additionally, it would have required an

intertwined economy between the United States and every single different tribe in which a

symbiotic relationship existed. This would have also meant the addition of many new seats to

Congress as tribal representatives would be needed from each tribe.

The further difficulty here comes from the United States recognition of different tribes

and the difficulty the whites often had determining the difference between two different tribes

from the same nation. That leads to the further question of would it only be nations recognized

with the various tribes therein subject to their overseeing or would every individual tribe become

its own state as part of the United States? Further, from an economic standpoint, most Indians

produced very little of true value to the United States from the standpoint of a GDP.

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By the flip side, the Cherokee could have been recognized as a sovereign foreign state in

its own right. This would require yet again, the same distinction be made for every tribe out

there, regardless of whether they were actually “civilized” or not. This would also mean

numerous declarations of war by the United States or intense negotiations which would more

than likely fail and still lead to war. Militarily speaking, going to war with dozens of minor

nations would be a logistical nightmare and would require immense amounts of diplomatic

relations, money, men, and materiel to maintain such a war. Ultimately, the United States would

have to resort to a policy of extermination and elimination of the tribes completely to resolve the

state of permanent war it would be in resultant from this very decision.

Finally, the third alternative is a quirky one: the recognition of the Cherokee as a foreign,

yet still dependant state. In this, the United States would end up having to adopt a policy similar

to its policy regarding such states as Panama or Iraq, where it maintains a vested interest in the

state’s economic and political well-being. This would also mean an immense amount of money

being spent to “nation build” in the self-interest of a positive relationship with these nations to

bolster the United States’ own economy in return. Again, the problem arises from a lack of GDP

on a significant scale from most tribes, or a lack of consistent, organized government or even

location for that matter.

The fact that many tribes were migratory, following the herds of animals by the season

would create a diplomatic nightmare in and of itself. Also that would raise the question: what if

one tribe declares war with the other? Where does the United States stand then? Additionally,

would the United States have to provide humanitarian aid to one side? Both sides? No sides?

How would the fall of a tribe affect the economic investment put into it?

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Ultimately, as with Johnson v. McIntosh, Marshall adopted the “safest” stance on the

matter, by stating that the Cherokee were still a part of the United States and granted land and

existed at its pleasure. Further, this elimination of tribal sovereignty and the establishment of the

tribes as dependents of the U.S. provided means for them to be relocated, re-educated, divided,

scattered, imprisoned and even eliminated as tribes. The reasoning on this is since they are

domestic dependents of the United States, being under its protection and tutelage, it allows the

United States to take whatever acts Congress saw fit to deal with the tribes because “big brother”

knew best and it was for their “own good” not out of malice.

Worcester v. Georgia (1832)

Abstract

Worcester v. Georgia is a direct result of the disposition of Cherokee Nation v. Georgia

in which the Supreme Court found that the Cherokee Nation could not bring its suit before them

as it had no jurisdiction to mediate. Since the Cherokee Nation was found to be a domestic

dependent state (Cherokee v GA) with no right to land ownership but merely occupancy

(Johnson v McIntosh) and the State of Georgia had already been found to be willing to throw its

weight around regarding the Cherokee and their rights in the face of a Supreme Court writ

(Tassel) the Cherokee were forced to re-evaluate their position in the grander scheme of things.

To wit, the situation as explained in Marshall’s opinion:

“The defendant [Georgia] is a state, a member of the union, which as exercised the

powers of government over a people who deny its jurisdiction, and are under the

protection of the United States.

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“The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four

years in the penitentiary of Georgia; under color of an act which he alleges to be

repugnant to the constitution, laws and treaties of the United States.

“The legislative power of a state, the controlling power of the constitution and laws of the

United States, the rights, if they have any, the political existence of a once numerous and

powerful people, the personal liberty of a citizen, are all involved in the subject now to be

considered.”(16).

Samuel Worcester, a United States citizen and missionary, was arrested, tried and

convicted to four years hard labor under the judicial courts of Georgia. His crime was “residing

within the limits of the Cherokee nation without a license [and] without having taken the oath to

support and defend the constitution and laws of the state of Georgia.”(17). Meanwhile,

Worcester (and the Cherokee) held that Georgia had no jurisdiction to issue, or prosecute for a

failure to obtain, a permit to reside on the land granted to the Cherokee Nation in the Treaty of

Hopewell and fully recognized by the United States.

The true issue at stake here (as seen by the Cherokee) is phrased by Marshall as “It has

been said at the bar, that the acts of the legislature of Georgia seize on the whole Cherokee

country, parcel it out among the neighboring counties of the state, extender her code over the

whole country, abolish the institutions and its laws, and annihilate its political existence.”(18).

Marshall restates the facts of Johnson v McIntosh as limiting the rights of the Cherokee

nation to occupancy and not direct ownership, at the pleasure of the United States. Further, he

reiterates one of the listed goals among the original European settlers who laid claim to land

originally under the discovery doctrine was “the civilization of the Indians and their conversion

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to Christianity.”(19). Marshall also reaffirms that the Treaty of Hopewell was signed in good

faith by both sides seeking peace and that articles I and II of the treaty provide for the mutual

exchange of prisoners of war as well as article III, already quoted previous “acknowledges the

Cherokees to be under the protection of the United States and of no other power.”(20).

He continues by explaining that the power to protect does not necessarily mean that the

intent is destruction and such reprehensible language in the treaty as “managing all their affairs”

as quoted in article IX cannot be construed to intend to force the Cherokee to “have divested

themselves of the right of self-government on subjects not connected with trade.”(21). In fact,

Marshall blatantly condemns such an intent by saying: “It would convert a treaty of peace into an

act, annihilating the political existence of one of the parties.” He continues to berate such an

underhanded intent as “Had such a result been intended, it would have been openly avowed.”(22)

Thus Marshall is adopting the true legalese ideology of “if they meant to say that, they would

have said it, not implied it”.

Marshall alludes to the Treaty of Holston of 1791 as well in acknowledging a Cherokee

existence as an entity and not as abolishing them. He then explains that by these (and other)

treaties and constitutional laws, the United States government has established that all intercourse

between the tribes and whites is to occur directly between the tribe and the United States

government exclusively and not with the states. He raises the point that “a weaker power does

not surrender its independence- its right to self-government, by associating with a stronger, and

taking its protection.”(23).

Marshall’s disposition on the matter was to rule that the “Cherokee nation, then, is a

distinct community, occupying its own territory, with boundaries accurately described, in which

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the laws of Georgia can have no force and which the citizens of Georgia have no right to enter,

but the with the assent of the Cherokees themselves.”(24). He also reversed the conviction of

Worcester, declaring it “consequently void and the judgment a nullity.”(25).

Simply: As domestic dependant states, the Cherokee (thus tribes) have the right to be free

from laws or harassment/incursion of states. Only the United States government has the right to

exert authority over the tribes by treaty or by exercising its greater judgment in the role of

protector. Marshall even directly called Georgia’s behavior “repugnant to the constitution, laws,

and treaties of the United States.

Justice McLean concurred, however, one statement in his opinion is a direct

foreshadowing of the sentiments that give rise to the Removal Act later. “If therefore, it would be

inconsistent with the political welfare of the states, and the social advance of their citizens, that

an independent and permanent power should exist within their limits, this power must give way

to the greater power which surrounds is, or seeks its exercise beyond the sphere of state

authority.”(26). Again, this ties directly back to the right of occupancy as it pleases the United

States government, as well as the domestic dependency ruling, Mr. McLean is saying that should

it become necessary to (for the greater good) relocate, the tribes must comply and do so in the

interests of the United States and her people.

The ultimate outcome of this situation was that the state of Georgia refused to obey the

directive and due to unrelated situations occurring simultaneously favoring states’ rights over the

federal government no enforcement was made either by Federal Marshalls or President Jackson.

Though he did appeal to the Georgia governor and get the men pardoned and released to resolve

the standoff. However, in regards to the decision that Georgia had no rights to encroach on

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Cherokee lands or make/enforce laws therein, Georgia refused to bend and President Jackson’s

response to this was “John Marshall has made his decision; now let him enforce it.”(27).

Unfortunately, for the Cherokees, President Jackson continued a hard line stance on their

removal. The Cherokee were ultimately strong-armed by the federal government and Jackson to

relocate out of Georgia either by being bought out and moved to what would become Oklahoma

or forced out by the Georgians moving West. Ultimately though, Worcester v Georgia has served

as precedent and case law, though not necessarily in the direction of Indian sovereignty but more

toward federal government having say over the tribes, not the states where said tribes may be

located.

Alternatives

Though not nearly as open to alternative directions and speculation as the previous cases,

it nonetheless does a couple of potential other ways it could have gone. For example, the

Supreme Court could have adopted the disposition that as the Cherokee were established as a

domestic dependent state that they had no right to adopt their own laws without the agreement of

the United States government and as such, unless overruled by a specific federal law, “the law of

the land” would prevail and any desired laws or changes to be made specifically for the

Cherokee lands would have to be petitioned to the legislation of the United States for approval.

Further, the state of Georgia could have decided to abide by Marshall’s decision and

abrogated the prisoners and agreed to cease and desist all unlawful incursions into Cherokee land

as well as dictatorially encroaching its own laws on a separate state. Though given the historical

unrest in the area both early on, pre and post civil war and even during the civil rights period this

seems highly unlikely.

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Finally, President Jackson could have upheld the Supreme Court’s ruling and stood by

Marshall. However, this could have had disastrous consequences from the state of Georgia who

would balk under the tyrannical yoke of big government stepping in and telling it what to do.

This would have require federal troops be stationed on the borders of the Cherokee nation to

uphold the laws and domestic tranquility associated therewith. This could have ignited an early

secession of Georgia but an efficient response from the United States might have actually curbed

this and prevented the Civil War by directly establishing severe responses for secessionism.

More likely, however, is South Carolina would follow Georgia since it was close to begin with

its Nullification Ordinance which contained direct challenges to the federal powers and

authority. This may well have triggered the Civil War more than a generation early, though all

this is extreme speculation.

These three major cases, in conjunction with such things as the Indian Country Crimes

Act and Ex Parte Crow Dog have combined to limit the original sovereignty laid out for Indian

Tribes.

Outcomes Tied to Marshall Trilogy

The decisions laid out in the Marshall Trilogy would have long reaching affects on

American Indian law for decades to come, even leading into the present day. None so much as

the Reservations however and Termination, both of which hit at the very core issues addressed in

the cases heard by Marshall: Indian sovereignty and land rights. There are a few others that were

able to use Marshall’s decisions to get a leg-up over the Indians as well. Below are only a small

number of the acts passed by the United States to specifically limit or curtail any rights the

Indians may have enjoyed prior to Marshall’s rulings and the perversions thereof.

21


Indian Removal Act

The Indian Removal Act of 1830 (4 Stat. 411) is directly opened by the language in

Johnson v. McIntosh and Cherokee Nation v Georgia. Specifically, it states in Sec 2: “it shall be

lawful for the President to exchange any or all of such districts… with any tribe or nation of

Indians now residing within any of the states of territories and with which the United States have

existing treaties.”(28). This is made possible by limiting their rights to that of occupancy and not

ownership in Johnson v McIntosh, as well as the classification of domestic dependent states by

Cherokee Nation v. Georgia. By being domestic, dependent states it allows the government to

have final say over what happens to them and actually removes their appellate process as they

have little recourse to a higher authority.

Indian Intercourse Act

The Indian Intercourse Act of 1834 (4 Stat. 729.) specifically prohibits who can and

cannot trade with the Indian tribes and also clearly states that a permit to do so must be obtained

by “a superintendent Indian Affairs, or Indian agent.”(29). It also states that the permit was only

good for two years for the tribes back east and three for the tribes out west. This very clearly flies

in the face of Marshall’s writ regarding Tassel, as well as the ruling in Worcester. However, this

does lean more heavily on the “ward/guardian” angle that Marshall laid out in Cherokee. This is

a prime example of the federal government acting “for their own good”, as was previously noted

would happen.

Homestead Act

Enacted in 1857, the Homestead Act (12 Stat. 392.) did not directly affect the Indians in

its writing. However, the fact that it did parcel out land further and further west to American

22


pioneers did. Inasmuch, it created an additional land need that the United States was unable to

meet save by yet again “renegotiating” with the Indians for the lands they had been moved to

merely 30 years prior. This again, takes into account the right to occupancy but not to ownership

and it even involves the discovery doctrine, all of this co-conspired to shrink Indian held lands

further.

Indian Appropriations Act of 1871

(25 U.S.C. Section 71)This act was made possible by the removal of the sovereignty of

the tribes in Cherokee and actually completely removes the Indians from any rights to be treated

as even domestic dependents by stating that “No Indian nation or tribe within the territory of the

United States shall be acknowledged or recognized as an independent nation, tribe or power with

whom the United States may contract by treaty”(30). Additionally, this act completely removes

the rights of any tribes to negotiate with the United States as anything but United States citizens

and effectively removes much of the protection gained by being a member of a tribe. This was

additional incentive to be forcibly relocated off of American soil.

In conclusion, John Marshall was a man apart. He made some of the most difficult

decisions facing the Supreme Court at any point in U.S. history and, relatively successfully,

steered to the center in most instances. It is clear that his decisions seemed intentioned purely on

the greater good of the United States and her citizens rather than being pro-Indian or pro-

Expansion. The sad truth is that there really was no way to make both sides in these matters

happy.

The, seemingly, well intended in Cherokee v. Georgia actually opened a whole new can

of worms by making the Indians less than they were previously and leaving them open to the

23


(now legal) forcible removal with President Jackson at the helm. Ironically, in fact, even in his

decision that did lean more in favor of the Indians (Worcester) the state and federal government

both undermined his authority and refused to abide by his ruling, rendering the Supreme Court

quite impotent, a matter which somehow seems to have not poisoned the well for the future

rulings, surprisingly.

Finally, John Marshall, a soldier, politician, lawyer and Supreme Court Chief Justice was,

invariably, but a man who was asked to make decisions on a scale which is in the extreme and

would have been better left to politicians and ambassadors than a man of the law. Ultimately, his

decisions did have far-reaching consequences and outcomes, many of them quite bad for the

Indians tribal way of life, but by the same token, some of the rights granted therein by his

decisions helped to shape the laws that have swung the pendulum back the other way, in favor of

increased “special treatment” of the American Indian tribes.

24


End Notes

1. Gethces, David H., Wilkinson, Charles F., Williams, Robert A. (Jr), Cases and Materials on Federal

Indian Law. (Minnesota: West Publishing. 1998), 63

2. Ibid. 63

3. Ibid. 64

4. Ibid. 65

5. Ibid 66

6. Ibid 67

7. Ibid 68

8. “1785 Treaty of Hopewell.” Cherokee Phoenix.org. 29 January, 2012. 16 August, 2012,

http://www.cherokeephoenix.org/19599/Article.aspx

9. Getches, David H., Wilkinson, Charles F., Williams, Robert A. (Jr), Cases and Materials on Federal

Indian Law. (Minnesota: West Publishing. 1998),104

10. Ibid. 104

11. Ibid. 105

12. Ibid. 105

13. Ibid. 107

14. Ibid. 107

15. Ibid. 105

16. U.S. Supreme Court. Opinion of the Supreme Court of the United States, at January Term, 1832,

Delivered by Mr. Chief Justice Marshall in the Case of Samuel A. Worcester, Plaintiff. 1852. Kindle Edition.

17. Ibid

18. Ibid

19. Ibid

20. Ibid

21. Ibid

22. Ibid

23. Ibid

24. Ibid

25. Ibid

26. Ibid


25


27. Getches, David H., Wilkinson, Charles F., Williams, Robert A. (Jr), Cases and Materials on Federal

Indian Law. (Minnesota: West Publishing. 1998),122

28. Ross, John J. “Indian Law Timeline.” William C. Blakely Law Library.

http://www.law.asu.edu/library/RossBlakleyLawLibrary/ResearchNow/IndianLawPortal/IndianLawTimeline.aspx

16 August, 2012.

29. Ibid

30. Ibid

Bibliography

“1785 Treaty of Hopewell.” Cherokee Phoenix.org. 29 January, 2012. 16 August,

2012.http://www.cherokeephoenix.org/19599/Article.aspx

Canby, William C. Jr.. American Indian Law in a Nutshell. Minnesota: West Publishing. 2004

Gethces, David H., Wilkinson, Charles F., Williams, Robert A. (Jr), Cases and Materials on

Federal Indian Law. Minnesota: West Publishing. 1998

Ross, John J. “Indian Law Timeline.” William C. Blakely Law Library. 16 August, 2012.

http://www.law.asu.edu/library/RossBlakleyLawLibrary/ResearchNow/IndianLawPortal/IndianL

awTimeline.aspx

Swanson, Rick A.“Indian Appropriations Act 1871 (and as amended later).”UCS Louisiana. 14

October, 2010. http://www.ucs.louisiana.edu/~ras2777/indianlaw/appropriations.htm

U.S. Supreme Court. Opinion of the Supreme Court of the United States, at January Term, 1832,

Delivered by Mr. Chief Justice Marshall in the Case of Samuel A. Worcester, Plaintiff.

Published by Gales and Seaton. 1852. Kindle Edition.

1. Firstname Lastname, Title of Book (Place of publication: Publisher, Year of publication), page

number.

http://www.law.asu.edu/library/RossBlakleyLawLibrary/ResearchNow/IndianLawPortal/IndianLawTimeline.aspx


http://www.law.asu.edu/library/RossBlakleyLawLibrary/ResearchNow/IndianLawPortal/IndianL%09awTimeline.aspx

http://www.law.asu.edu/library/RossBlakleyLawLibrary/ResearchNow/IndianLawPortal/IndianL%09awTimeline.aspx

http://www.ucs.louisiana.edu/~ras2777/indianlaw/appropriations.htm

26


1. Firstname Lastname, “Title of Web Page,” Publishing Organization or Name of Website in

Italics, publication date and/or access date if available, URL.

1. U.S. Department of the Interior, An Oilspill Risk Analysis for the Central Gulf and Western Gulf

of Mexico (Denver, Colo.: U.S. Geological Survey, 1983), 10.

U.S. Department of the Interior. Minerals Management Service. An Oilspill Risk Analysis for the Central

Gulf and Western Gulf of Mexico, by Robert P. La Belle. Open-file report 83-119, U.S. Geological Survey.

Denver, 1983.

now let him enforce it

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