In the 1831 Supreme Court of the United States case Cherokee Nation v. Georgia, Chief Justice of the United States John Marshall wrote that Native American peoples in the United States were "domestic dependent nations" whose relationship to the United States is like that of a "ward to its guardian". The case was a landmark decision which led to the United States recognizing over 575 federally recognized tribal governments and 326 Indian reservations which are legally classified as domestic dependent nations with tribal sovereignty rights.
Native American sovereignty and the Constitution The United States Constitution mentions Native American tribes three times:
Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."Constitution of the United States of America: Article. I. According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states." Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes",American Indian Policy Center. 2005. St. Paul, MN. 4 October 2008 determining that Indian tribes were separate from the federal government, the states, and foreign nations;Cherokee Nations v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.Additional amendments to the United States Constitution
These constitutional provisions, and subsequent interpretations by the United States Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:Charles F. Wilkinson, Indian tribes as sovereign governments: a sourcebook on federal-tribal history, law, and policy, AIRI Press, 1988Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004N. Bruce Duthu, American Indians and the Law, Penguin/Viking, 2008 Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located. Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects. Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.Robert J. McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. PUB. L. 1 (December, 2004)
The Marshall Trilogy, 1823–1832
The Marshall Trilogy is a set of three Supreme Court decisions in the early nineteenth century affirming the legal and political standing of Indian nations.
Johnson v. McIntosh (1823), holding that private citizens could not purchase lands from Native Americans. Cherokee Nation v. Georgia (1831), holding the Cherokee nation a "domestic dependent nation", with a relationship to the United States like that of a "ward to its guardian". Worcester v. Georgia (1832), which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations.
Marshall's phrasing "laid the groundwork for future protection of tribal sovereignty by Marshall and his immediate successors, but the characterization also created an opportunity for much later courts to discover limits to tribal sovereignty inherent in domestic dependent status. Marshall's reference to tribes as 'wards' was to have an equally mixed history".>
Cherokee Nation v. Georgia
In June 1830, a delegation of Cherokee led by Chief John Ross and represented by William Wirt, a former United States attorney general in the Monroe and Adams administrations, were selected to bring a case before the U.S. Supreme Court. Backed by the supporters of Senators Daniel Webster and Theodore Frelinghuysen, the Cherokee Nation sought an injunction against Georgia. They argued that Georgia's state legislation had created laws aimed to "annihilate the Cherokees as a political society." The Cherokee claimed that Georgia's actions violated U.S.–Cherokee treaties, the U.S. Constitution, and federal laws regulating interactions with Native tribes.
Wirt contended that the Cherokee Nation qualified as a "foreign nation" under the Constitution and therefore had standing to sue. He asked the Court to nullify Georgia's laws extending over Cherokee territory. Georgia countered by arguing that the Cherokee lacked standing as a foreign nation, citing their absence of a constitution and centralized government. Wirt argued that "the Cherokee Nation [was] a foreign nation in the sense of our constitution and law" and was not subject to Georgia's jurisdiction.
Wirt asked the Supreme Court to void all Georgia laws extended over Cherokee lands because they violated the U.S. Constitution, United States–Cherokee treaties, and United States intercourse laws.
The Supreme Court, led by Chief Justice John Marshall, agreed to hear the case but declined to rule on the merits of the case. The Court determined that the framers of the Constitution did not consider the Indian Tribes as foreign nations but more as "domestic dependent nation[s]" and consequently the Cherokee Nation lacked the standing to sue as a "foreign" nation.
Key Opinions Majority Opinion (Chief Justice John Marshall): Marshall concluded that Indian tribes, while retaining some sovereignty, were not foreign nations in the sense required to bring suit in federal court. He emphasized that the Constitution did not envision tribes as fully independent entities.Worcester v. Georgia, Oyez. Accessed 03 Aug. 2014.
Justice William Johnson (Concurring): Johnson described tribes as "nothing more than wandering hordes, held together only by ties of blood and habit, and having neither rules nor government beyond what is required in a savage state."Cherokee Nation v Georgia 30 U.S. (5 Pet.) at 190. with no formal governance beyond blood ties and habits, underscoring their perceived lack of status as sovereign entities.
Dissenting Opinion (Justice Smith Thompson, joined by Justice Joseph Story): Thompson argued that the Cherokee Nation was a foreign state based on its ability to self-govern and enter treaties. He held that Georgia's laws violated federal treaties and acts of Congress, causing significant harm to the Cherokee. He supported the injunction against Georgia.
End of the Treaty Era Indian Appropriations Act of 1871
Originally, the United States had recognized the Indian Tribes as independent nations, but after the Civil War, the U.S. suddenly changed its approach.
The Indian Appropriations Act of 1871 had two significant sections. First, the Act ended United States recognition of additional Native American tribes or independent nations and prohibited additional treaties. Thus, it required the federal government no longer interact with the various tribes through treaties, but rather through statutes:
The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States.
Plenary Power The 1871 Act was affirmed in 1886 by the U.S. Supreme Court, in United States v. Kagama, which affirmed that the Congress has plenary power over all Native American tribes within its borders by rationalization that "The power of the general government over these remnants of a race once powerful ... is necessary to their protection as well as to the safety of those among whom they dwell". The Supreme Court affirmed that the U.S. Government "has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States. ... The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection."
The Allotment Era The General Allotment Act (Dawes Act), 1887
Passed by Congress in 1887, the "Dawes Act" was named for Senator Henry L. Dawes of Massachusetts, Chairman of the Senate's Indian Affairs Committee. It came as another crucial step in attacking the tribal aspect of the Indians of the time. In essence, the act broke up the land of most all tribes into modest parcels to be distributed to Indian families, and those remaining were auctioned off to white purchasers. Indians who accepted the farmland and became "civilized" were made American citizens. But the Act itself proved disastrous for Indians, as much tribal land was lost, and cultural traditions destroyed. Whites benefited the most; for example, when the government made of Indian lands available in Oklahoma, 50,000 white settlers poured in almost instantly to claim it all (in a period of one day, April 22, 1889).
Evolution of relationships: The evolution of the relationship between tribal governments and federal governments has been glued together through partnerships and agreements. Also running into problems of course such as finances which also led to not being able to have a stable social and political structure at the helm of these tribes or states.
The Reorganization Era Indian Reorganization Act, 1934 In 1934, the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy. John Collier and Nathan Margold wrote the solicitor's opinion, "Powers of Indian Tribes" which was issued October 25, 1934, and commented on the wording of the Indian Reorganization Act. This opinion stated that sovereign powers inhered in Indian tribes except for where they were restricted by Congress. The opinion stated that "Conquest has brought the Indian tribes under the control of Congress, but except as Congress has expressly restricted or limited the internal powers of sovereignty vested in the Indian tribes such powers are still vested in the respective tribes and may be exercised by their duly constituted organs of government."
The Termination Era Public Law 280, 1953
In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.