Thursday, April 25, 2019

NATIVE SENSE - MARSHALL TRILOGY - U.S. SUPREME COURT

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 The following are brief synopsis' of the foundational cases that established the field of federal Indian Law. These cases arose against a backdrop of a growing federal government that was finding itself in increasing conflict with state governments over the extent of its powers. The states were attempting to assert governmental authority over tribal governments. This was particularly true with states in the South. This assertion was opposed by the federal government. In direct response to state assertion of power over tribes, Chief Justice Marshall crafted opinions, usually through consensus building with other justices, that gave rise to the concept of Indian nations retaining their inherent "nations" status, such that all relations with these "nations" were solely within federal power. These cases heralded the introduction of the unique trustee/ward relationship between the tribes and the federal government.

 WORCESTER V. GEORGIA, 31 U.S. 515, 8 L.Ed. 483 (1832). The State of Georgia attempted to force whites to register and pledge allegiance to Georgia law before entry onto the reservation was allowed. Worcester was a postmaster for the mail service and refused to register and pledge his allegiance. The State of Georgia charged him with a crime. The Supreme Court held that Indian tribes, as separate nations, had defined territorial boundaries within which state law was inoperative and ordered Worcester charges dismissed.

 CHEROKEE NATION V. GEORGIA, 30 U.S. (5 Pet.) 1 (1831). The Cherokee Nation sought review with the Supreme Court to impose an injunction on the State of Georgia prohibiting implentation of certain laws of that state on the Cherokee Nation reservation. Pursuant to the Constitution, all regulations concerning commerce with Indian nations were within the sole power of the federal government. In what is known as the Commerce Clause, the Founding Fathers empowered Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Supreme Court was authorized to hear only matters of "original jurisdiction", that is, matters expressly provided for in the Constitution. The Supreme Court held that the Cherokee Nation was not a foreign nation, rather a "domestic dependent nation" subject to the sovereignty of the United States federal government. Since the tribe was not a "state" nor a "foreign nation", the Supreme Court's held that the motion for an injunction was not a matter of original jurisdiction and refused to grant the injunction.

 JOHNSON v. M'INTOSH, 21 U.S (8 Wheat) 543 (1823). This case involved a dispute between two white men who held conflicting titles to land sold within the reservation to them. Johnson held a title sold him by the Tribe within the reservation. Chief Justice Marshall, examined the history of how land was acquired during the European invasion and ultimately held that the tribe did not have an enforceable title to the land it sold. The Indians enjoyed a right of "occupancy" only. The ultimate title to land had passed to the United States government under a principle called "discovery."

The "discovery doctrine" was developed by the Spanish philosopher, Vittorio, in an attempt to justify and explain the taking of land from aboriginal people. In its essence, Vittorio opined that it was the manner in which the civilized nations dealt with each other as it pertained to the land, that governed who had title. A European nation that discovered land occupied by aboriginal people, assumed certain rights over that land that were recognized by the other European nations. It was these "recognized" rights that were passed on to the United States when it won the War of Independence. I will not attempt to go on a further dissertation on the doctrine, except to say that, in it, Marshall found the rationale for asserting federal title power over the land versus state power. As a result, with the adoption of the "discovery doctrine," the Court held the title to land passed to the plaintiff by the Illinois and Piankeshaw tribes was invalid because Indians held only a title of occupancy, and not full title.

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