⚖️Native American Law Unit 3 – Marshall Trilogy & Early Native Treaties

Key Cases in the Marshall Trilogy

• Johnson v. M'Intosh (1823) established the Doctrine of Discovery which asserted that European nations gained title to the lands they discovered and the exclusive right to extinguish the aboriginal title of possession through purchase or conquest
• Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" with a relationship to the U.S. government resembling that of a "ward to its guardian"
  • Tribes were not considered foreign nations but were subject to the jurisdiction and protection of the U.S.
• Worcester v. Georgia (1832) held that the laws of Georgia had no force within the Cherokee Nation and that only the federal government had authority over Indian affairs
  • Established the principle of tribal sovereignty and that state laws generally do not apply on tribal lands

Historical Context

• The Marshall Trilogy cases were decided during a period of westward expansion and increasing conflict between Native American tribes and settlers
• U.S. government sought to assert control over Native American lands and resources while also grappling with the legal status of tribes
• Cases arose in the context of specific disputes between tribes, states, and individuals over land ownership and jurisdiction
  • Johnson v. M'Intosh involved competing land claims derived from tribal grants and federal patents
  • Cherokee Nation v. Georgia and Worcester v. Georgia centered on Georgia's attempts to assert jurisdiction over Cherokee lands and people
• Marshall Trilogy established foundational principles that continue to shape federal Indian law and policy

Main Legal Principles Established

• Doctrine of Discovery gave European nations and their successors (including the U.S.) ultimate title to Native American lands
  • Native Americans retained a right of occupancy but could only sell their land to the discovering sovereign
• Tribes are "domestic dependent nations" with a unique relationship to the U.S. government
  • Not foreign nations or states, but distinct political entities subject to federal authority
• Tribal sovereignty is inherent but subject to the overriding sovereignty of the U.S.
  • Tribes retain the right to self-government and control over internal affairs, but Congress has plenary power over Indian affairs
• State laws generally do not apply on tribal lands unless Congress expressly grants such authority
  • Federal government has exclusive jurisdiction over relations with tribes

Impact on Native American Sovereignty

• Marshall Trilogy recognized tribal sovereignty as inherent but limited by U.S. overriding sovereignty
  • Tribes have the right to self-government and control over internal affairs, but are subject to federal authority
• Cases established the federal trust responsibility, obligating the U.S. to protect tribal lands, resources, and welfare
  • Also used to justify paternalistic policies and federal control over tribal affairs
• Doctrine of Discovery and domestic dependent nation status were used to justify the dispossession of Native American lands and the erosion of tribal sovereignty
  • Provided legal basis for forced removal, allotment, and termination policies
• Principles continue to shape modern federal Indian law and policy debates over tribal jurisdiction, land rights, and self-determination

Early Native Treaties: Overview

• Treaties were the primary means of establishing political and legal relationships between Native American tribes and European powers (later the U.S.)
• Early treaties often focused on trade, military alliances, and land cessions
  • Examples include the Treaty of Fort Pitt (1778) with the Delaware Nation and the Treaty of Hopewell (1785) with the Cherokee
• Treaties were considered solemn agreements between sovereign nations, but the U.S. often viewed them as tools for asserting control over tribes and their lands
• The U.S. Constitution recognizes treaties as the supreme law of the land, including those with Native American tribes
  • Article II grants the President the power to make treaties with the advice and consent of the Senate

Treaty-Making Process

• Treaty negotiations were often marked by language barriers, cultural misunderstandings, and power imbalances
  • U.S. negotiators often used interpreters and relied on a few influential tribal leaders to secure agreements
• Many early treaties were signed under duress or without full tribal consent
  • Some tribes were threatened with military force or induced to sign with promises of protection and material goods
• Treaties were often written in English and used legal concepts unfamiliar to Native American parties
  • Led to differing interpretations and understandings of treaty terms
• The U.S. Senate had to ratify treaties, sometimes with amendments or changes not agreed to by tribal signatories
  • Example: The Treaty of Fort Stanwix (1784) was amended by the Senate to reduce the lands reserved for the Iroquois

Interpretation and Enforcement Challenges

• Treaties were often written in vague or ambiguous language, leading to disputes over interpretation
  • Example: The Treaty of Fort Laramie (1851) described tribal territories using landmarks and general descriptions open to interpretation
• The U.S. government and courts often interpreted treaties in ways that favored U.S. interests and limited tribal rights
  • Used the Doctrine of Discovery and plenary power to assert authority over tribal lands and affairs
• The U.S. frequently failed to fulfill treaty obligations, such as providing promised annuities, goods, and services
  • Example: The Treaty of New Echota (1835) promised Cherokee removal would be voluntary and included provisions for land, money, and support, but the U.S. forcibly removed Cherokees on the Trail of Tears
• Tribes had limited ability to enforce treaties in U.S. courts or international forums
  • The Marshall Trilogy established that tribes were domestic dependent nations, not foreign powers, limiting their legal recourse

Legacy and Modern Implications

• Early Native treaties established the legal framework for U.S.-tribal relations and continue to shape modern issues
  • Treaties are still considered binding law and are often invoked in disputes over land rights, hunting and fishing rights, and tribal jurisdiction
• The trust responsibility established in early treaties obligates the federal government to protect tribal lands, resources, and welfare
  • Provides basis for modern programs and services like health care, education, and housing
• Many tribes view treaties as sacred agreements and the basis for their sovereign rights and nationhood
  • Efforts to assert treaty rights and hold the U.S. accountable for broken promises remain central to tribal advocacy and activism
• The legacy of broken treaties and the erosion of tribal sovereignty has contributed to ongoing challenges facing Native American communities
  • Including poverty, health disparities, and conflicts over land and resources