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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

Authors Note: Prepared for David Groffs CJA 299 Special Studies: Native American Law

NOW LET HIM ENFORCE IT 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 Marshalls rulings and what they meant for the Indians, their tribes, homes and way of life. Additionally, how these laws were actually intentional perversions of Marshalls rulings to benefit increased expansion of the United States rather than creating the protective bubble around the tribes that was intended.

NOW LET HIM ENFORCE IT John Marshall Former continental soldier and the longest serving Chief Justice of the United States (1801-1835), John Marshalls 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 17751780. 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, Marshalls 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. Marshalls 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

NOW LET HIM ENFORCE IT probably werent 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

NOW LET HIM ENFORCE IT 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 doesnt 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.

NOW LET HIM ENFORCE IT The Courts 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 didnt 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 Marshalls 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 theyd have agreed to sell what was taken from them to begin with; which in and of itself raises a new problem: if they dont sell,

NOW LET HIM ENFORCE IT 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 overextended 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 didnt 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

NOW LET HIM ENFORCE IT 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, its 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

NOW LET HIM ENFORCE IT 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 states 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:

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.

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



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.

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.

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).


NOW LET HIM ENFORCE IT 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 Cherokees 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 Cherokees 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


NOW LET HIM ENFORCE IT 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 Cherokees


NOW LET HIM ENFORCE IT 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.


NOW LET HIM ENFORCE IT 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 states 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?


NOW LET HIM ENFORCE IT 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 Marshalls 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.


NOW LET HIM ENFORCE IT 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


NOW LET HIM ENFORCE IT 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). Marshalls 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


NOW LET HIM ENFORCE IT 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 Georgias 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


NOW LET HIM ENFORCE IT Cherokee lands or make/enforce laws therein, Georgia refused to bend and President Jacksons 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 Marshalls 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.


NOW LET HIM ENFORCE IT Finally, President Jackson could have upheld the Supreme Courts 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 Marshalls 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 Marshalls rulings and the perversions thereof.


NOW LET HIM ENFORCE IT 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 Marshalls 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


NOW LET HIM ENFORCE IT 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 proExpansion. 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


NOW LET HIM ENFORCE IT (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.



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 29 January, 2012. 16 August, 2012, 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



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. 16 August, 2012. 29. Ibid 30. Ibid

Bibliography 1785 Treaty of Hopewell. Cherokee 29 January, 2012. 16 August, 2012. 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. awTimeline.aspx Swanson, Rick A.Indian Appropriations Act 1871 (and as amended later).UCS Louisiana. 14 October, 2010. 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.
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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.