Wednesday, May 7, 2014

American Indians and the Law, part 2

Troy D. Smith

Last month, in part one of this discussion -you can read it here- I talked about the fact that many of the most significant battles between the U.S. government and American Indians have taken place in the courtroom. Part one ended with Indian Removal, and I plan to eventually discuss, first, the western tribes and then, ultimately, all tribes in the 20th century (contrary to popular belief, reinforced by the fact that most high school and college American history classes never mention native peoples after this point, American Indian history did not end at the Wounded Knee massacre.)

Before I begin that, however, I want to use this space today to mention several important Supreme Court cases that led up to Indian Removal. These three cases in particular are known as the Marshall Trilogy, as all three were decided during the tenure of Chief Justice John Marshall (the fourth Chief Justice, serving from 1801 to 1835.) These cases remain very important, for many of the principles presented in them have provided precedent; much of modern-day American Indian Law is based upon them.

JOHNSON V. M'INTOSH, 1823   The Johnson in question was Thomas Johnson, first governor of Maryland and a member of the first cohort of the Supreme Court. In 1773 and 1775 Johnson bought some land from the Piankeshaw band of Miami Indians. The land was passed down in the family after Johnson's death. Eventually the fur trader William M'Intosh (pronounced McIntosh) obtained a grant for the land from the federal government. The Johnson family went to court to evict M'Intosh off what they considered to be their land.

The Marshall Court ruled in favor of M'Intosh. In his opinion, Marshall traced the history of land ownership where Europeans and Indians were concerned, summarizing the European "law of nations" as articulated in 1557 by the Dominican scholar Franciscus Victoria, to wit: any land without an owner can be claimed by the first person to find it (the "doctrine of discovery".) Since Indians had "no concept of personal property" and did not "use" the land, it was impossible for them to own it; they only had the right to inhabit it. Therefore, the first European power to "discover" land with Indians on it could claim that land, under right of discovery. (And, again according to Franciscus -whose arguments formed the basis, or justification, for Spanish dominance- if the Indians resisted the Europeans taking their land or extracting the minerals from it, it was legally justifiable to kill them, for they were interfering with the Europeans' natural rights.) This doctrine began with the Spanish (Ferdinand and Isabella consulted with lawyers immediately upon getting a report back from Columbus) -who based it on the precedent of taking infidels' lands during the Crusades -and was itself used as precedent by the English when they started colonizing in North America.

According to Marshall, when the United States of America was formed during the Revolution, it thereby immediately took over the English rights of discovery. And since Indians can't own land, Indians can't SELL land to individuals; they could only sign it over to the federal government, per the Commerce Clause of the Constitution. The Johnson family's claim, based on a private transaction with Indians, was therefore void. The federal government took the land from the Miami Indians when they took up arms against the U.S., then transferred it to M'Intosh.

This case continues to be used as precedent, and is usually one of the first cases studied by beginning law students, as it helps provides the basis for land ownership law in the U.S.

I feel compelled to point out the chain of legal events here. American law is built on precedent. Modern-day American Indian Law is based on the precedent of Johnson v. M'Intosh -which was based on the precedent of English law articulated in the early 1600s -which was based on the precedent of Spanish law articulated in the 1500s -which was based on the precedent of medieval church law dealing with the Crusades. So if the government's dealing with indigenous tribes seems outdated at times, remember it is ultimately rooted in the Crusades.

CHEROKEE NATION V. GEORGIA, 1831   In the 1820s, the state of Georgia began agitating for the removal of the Cherokees and Creeks from within their borders. Two decades earlier, Thomas Jefferson had promised federal aid in doing just that in return for Georgia ceding part of its western claims to the U.S., but Jefferson's approach was a very long-term one that did not involve physical coercion. By the late 1820s, Georgia passed several laws that interfered with the Indians' sovereignty, in essence treating them as citizens of Georgia (one of those laws forbade any white person from living with the Indians without obtaining a state license to do so -this was aimed at preventing missionaries from encouraging the Indians to resist giving up their rights.) Georgia's aim was to make the Indians' lives miserable enough that they would leave the state voluntarily.

Cherokee Principal Chief John Ross took the matter to the federal courts, suing the state of Georgia. While the case made its way to the Supreme Court, The Indian Removal Act was passed.

The Supreme Court heard the case, but refused to rule on its merits. In his opinion, Chief Justice Marshall explained that -while referred to as "nations" -Indian tribes were not actual foreign nations. Instead, they were "domestic dependent nations," whose relationship to the federal government was like that of "a ward to its guardian." Therefore, the Cherokee Nation had no right to sue Georgia. This decision did not in itself support Georgia's right to pursue its policies; the Court left open the possibility the case could be heard in the future, just not as a foreign nation suing an American state.

This, too, laid the groundwork for all American Indian Law to follow, establishing a special ward-guardian relationship between Indians and the U.S. government.

WORCESTER V. GEORGIA, 1832   This case revolved around that Georgia law that made it illegal to live with Indians without a state license. This time -in view of Cherokee Nation v. Georgia -it was not the Cherokee Nation that brought suit against Georgia, but the missionary Samuel Worcester, who had been arrested for violating Georgia law.

The Marshall Court ruled in favor of Worcester. As Marshall explained, the Constitution gives the federal government the exclusive right to treat with, and interact with, Indian tribes -not individuals, and not states. Georgia, therefore, had no right to pass laws dealing with Indians. As you are no doubt aware, though, President Jackson -a staunch supporter of Removal -refused to intercede when the state of Georgia continued its actions, even though they had been ruled unconstitutional.

Nonetheless, the Court's ruling in this case has been cited ever since in support of the concept of limited Indian sovereignty. Indian tribes are nations -kinda sorta -but not foreign nations. Therefore, they have local sovereignty -state and local governments have no jurisdiction over them. The federal government, however -as established in Johnson v M'Intosh -does.

There is one more pre-Civil War case that has bearing on this discussion, which revolves around events that occurred in Indian Territory after Removal. This one is closely attached to the Marshall Trilogy, but took place during the tenure of Marshall's successor Roger Taney (of Dred Scott fame.)

U.S. V. ROGERS, 1846    This case deals with the murder of Jacob Nicholson by William S. Rogers. A fairly simple and straightforward situation -except for one detail. Both men, U.S. citizens, had been adopted by the Cherokee Nation and lived among the Cherokees in Indian Territory. Rogers argued that the U.S. did not have the authority to arrest him, as he was a Cherokee citizen; his fate must be decided by the Cherokee courts. The Supreme Court ruled to the contrary; being adopted by an Indian tribe did not absolve an American of their responsibilities as a U.S. citizen.

Interestingly, when the Confederacy was trying to woo the Cherokee Nation into an alliance during the Civil War, one of the things they promised was that the C.S.A. would never interfere with Indian sovereignty and jurisdiction; if a white man from Texas committed a crime in the Cherokee Nation, he would be subject to Cherokee justice. The U.S., however, never made that concession.

Next time: American Indian Law goes West!

(Troy D. Smith teaches American Indian History, Cherokee History, American Indian Law, and Environmental History at Tennessee Tech University.)


  1. WOW. SO INTERESTING! Thanks so much for the time and thought you always put into your blog posts. I learned a lot of new "somethings" today from this. Wish I lived close enough to take your classes. Your students don't know how lucky they are!

  2. Ha, this is the abridged version- this would be about three or four weeks' worth of lecture in detail. Thanks for the kind words!

  3. Dr. Troy,

    "I feel compelled to point out the chain of legal events here. American law is built on precedent. Modern-day American Indian Law is based on the precedent of Johnson v. M'Intosh -which was based on the precedent of English law articulated in the early 1600s -which was based on the precedent of Spanish law articulated in the 1500s -which was based on the precedent of medieval church law dealing with the Crusades. So if the government's dealing with indigenous tribes seems outdated at times, remember it is ultimately rooted in the Crusades."

    This is indeed a mouthful. What an embarrassment these precedents are for the U.S. and for humanity.

    American Indians so cruelly persecuted, to this day, have never been treated fairly by our courts.

    Ethics and morality should dictate reciprocity. The many stolen lands, and outright genocide and killings of Indians for land, dictate a call for reparations and fairness and payment to the existing Indian nations.

    I often wonder if the deliberate elimination of buffalo would also open a legal cause for reparations to Indian Tribes. Perhaps you can ponder about and clarify this question as well.)

    Thank you Troy. More should be written about our abuse towards Indians. History has been twisted and distorted, but perhaps now the real truth can be told.

    There has to be a willingness to listen and learn, or nothing will change for a population so cruelly treated even onto this present day.

    Charlie Steel

  4. Conquerors can come up with some strange justifications. It's interesting that the precedents go back 1,000 years and we're still using the same justifications. Excellent post. If I lived closer, I'd be sitting right beside Cheryl in your class. We promise not to heckle. Too much.

  5. Oh, Lord, Jacquie! Remember who holds the hammer (the grade book!) LOL We'd heckle...but very carefully...with a smile on our faces...

  6. I always enjoy your posts, Troy. Interesting stuff. Thank you.

  7. Troy,

    Again a fascinating and informative post. I am currently listening to the "Autobiography of Black Hawk" and find it so fascinating. Of course I grew up in the region and heard about Black Hawk, Keokuk and the war that raged in the early 1800's in that area. So many pieces, so many that were made to fit, but of course 'one size' does not fit all. Doris

  8. Thank you, Troy, for this terrific information.

  9. Always fascinating - you have a gift for making history relevant. Thanks!

  10. Thank you all for the kind words. I was afraid this subject might come off as too dry. For the class I just finished teaching, each student chose an existing tribe and wrote an amicus curiae brief in support of them on some recent controversy that tribe has had with state or federal government.

  11. Interesting information. Thanks!

  12. Thanks for the kind words, Charlie, and I apologize it took me so long to reply- this was finals week, and has been insane. A lot of the points, and questions, you raise will be addressed in future installments- stay tuned!

  13. Good day! I have not read the first article, but I will say the topic is the most popular in our time! Most lawyers fight for the rights of indigenous people who are oppressed at work, raped, fired for no reason ...