John Marshall
John Marshall

 John Marshall was the longest serving Chief Justice in Supreme Court history and played a significant role in the development of the American legal system and federal Indian law. He established that the courts have the power of ‘judicial review’, the authority to strike down laws that violate the U.S. Constitution. Marshall has been credited with cementing the position of the American judiciary as an independent and influential branch of government. The Marshall Court made several important decisions relating to federalism, shaping the balance of power between the federal government and the states. Among these decisions are the three cases that form the basic framework of federal Indian law in the United States, referred to as the ‘Marshall Trilogy.’ 

I. Johnson v. M’Intosh (1823)

This case primarily related to land issues and the interpretation of the Doctrine of Discovery in the United States. The case involved a man named Thomas Johnson who bought land from the Piankeshaw Indians and William M’Intosh who later obtained a patent to the same land from the United States federal government. The Court was asked to settle the dispute between the two men and sided with M’Intosh. The Court went on to say that the Indians did not own land outright, but that they had rights to occupy lands and only the discovering nation (U.S.) could settle those land rights. Indians could not sell lands to individuals and states do not have legal standing to settle aboriginal land claims. There was a case similar to this much later in Alaska called United States v. Berrigan (1905). That case involved gold seekers trying to purchase/steal land from Salchaket Athabascan people who were living near the Salcha on the Tanana river. Judge Wickersham recognized the legal obligation of the federal government to protect Native lands and ruled that only the federal government could settle aboriginal land claims, thereby the sale was invalid. 

II. Cherokee Nation v. Georgia (1831)

In this case, Cherokee Chief John Ross tried to protect Cherokee lands, fight off removal, and to keep the laws of Georgia from being imposed on them by asking for an injunction in the United States Supreme Court. The Cherokees argued that they were a foreign nation and the laws of Georgia did not apply to them. The Court denied the injunction and went on to say that the Cherokees were not a foreign nation, but they were a ‘domestic dependent nation.’ The relationship between the tribes and the United States was like that of a ‘ward to a guardian.’ This case outlined the sovereign nature of tribes as not like states, but not as complete foreign nations either. Tribal sovereignty was limited by being within the boundaries of the United States, but that tribal sovereignty was inherent sovereignty, which means that it predates the United States. The responsibility that the federal government has to tribes takes root from this and the next of the famous Marshall Indian cases. That responsibility is called the ‘doctrine of federal trust responsibility.’ The idea was that in exchange for the taking of land from the tribes, the federal government would protect the tribes in the lands that they ended up with, and compensate them by providing basic necessities such as food, shelter, and human services to the tribes. 

III. Worcester v. Georgia (1832)

The last case of the Marshall trilogy involved a missionary, Samuel Worcester who was preaching on the Cherokee lands, which was prohibited by the laws of Georgia without a state license to do so. Worcester was imprisoned and filed suit against the State of Georgia claiming that the State did not have authority to control activity on Cherokee lands. The Court sided with Worcester finding that the Cherokee Nation is a sovereign nation, a distinct community, occupying its own territory, and within which the laws of Georgia could have no force. This decision again established that the federal government, not the states have authority over Indian affairs and that the tribes retained inherent sovereignty, the authority to make and enforce their own laws within their lands. 


In summary, the cases set out the following principles of federal Indian law: 

Aboriginal land claims: Aboriginal people retain the rights of use and occupancy, that only the United States government can settle aboriginal land claims claims, and that the US has a legal duty to protect aboriginal title until land claims are officially settled. 

Tribal Sovereignty: Tribes are sovereign nations with the authority to govern themselves. The source of their authority to govern is ‘inherent,’ meaning that it comes from tribes being self-governing long before explorers and settlers came to the New World. 

Federal Trust Responsibility: The Federal Government has a responsibility to protect Indian lands and resources, and to provide essential services to Indian people. This comes from the fact that the federal government took away the vast majority of Indian lands, and in return promised to provide these things.



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