The Tragedy of the Marshall Trilogy

There the students were. Assembled in the college classroom. And there I was, the instructor, reviewing basic facts of the “Marshall Trilogy,” the Supreme Court cases responsible for establishing a framework for Federal Indian Law in the United States. During our study of these three cases, the overall classroom atmosphere was an uneasy mixture of surprise and sadness. Some students were visibly angry and upset. But their upset was not aimed at me. It was the material itself, the Trilogy, that made them mad.

Named after Chief Justice John Marshall, who presided over the Supreme Court from 1801-1835, the Trilogy has been immeasurably impactful on Indian Tribes. Taken together, the Trilogy established legal ideas which continue to shape modern life in Indian Country.

Let us begin with Johnson v. McIntosh (1823). This case involved conflicting claims to land. The Supreme Court attempted to determine who holds legal title to aboriginal lands? The Court unanimously ruled that Indian Tribes could sell or transfer title only to the United States government, not private citizens. How convenient. Furthermore, the Court reasoned that since European sovereigns “discovered” this land, title therefore would be vested to the discovering sovereign and belong to colonizers, not Indian Tribes. While Tribes retained “Indian Title” and right to occupy their lands, the Court decided that whatever rights Indian Peoples retained, their claims to title are ultimately subordinated to the United States. Importantly, Johnson v. McIntosh paved the way for two additional cases in the Trilogy.

In Cherokee Nation v. Georgia (1831), the main issue was whether Georgia could pass laws abolishing the Cherokee government. Basically, Georgia coveted the resource-rich Cherokee lands and wanted the Tribe to vacate. But the Cherokees said no. And so, Georgia utilized precedent established in Johnson v. McIntosh and argued that they, Georgia, owned underlying title to Cherokee lands, thereby subjecting Cherokee Nation to Georgia law. Rightfully so, Cherokee Nation contested this. The case arrives at the Supreme Court. The Cherokees lose. In his principal opinion, Chief Justice Marshall introduced two ideas that would become seriously significant in Federal Indian Law. The first idea was Indian Tribes shall be considered “domestic dependent nations.” And second, Indian Tribes’ relations to the United States resemble a ward to their guardian. Essentially, Cherokee Nation v. Georgia solidifies Indian Tribes’ political status and legally defines their relationships with the United States.

The final case of the Trilogy, Worcester v. Georgia (1832), involved two missionaries who were arrested in Cherokee Nation. Georgia charged the missionaries for criminal trespass and tried them in state court, where the missionaries were sentenced. But the missionaries claimed they were being unlawfully held. The Supreme Court hears the case. This time, the Court rules Georgia cannot impose its laws over Cherokee Nation. Chief Justice Marshall argued, “The Cherokee Nation, then, is a distinct community occupying its own territory in which the laws of Georgia can have no force.” While the decision did not prevent the Cherokee from being removed from their homelands, Worcester v. Georgia established an important precedent through which Indian Tribes could retain some semblance of sovereignty within their homelands. A win for Indian Peoples?

While reviewing the Trilogy with students, several of them used the word “hypocritical” to describe the Federal Government’s stance that it alone possesses supreme authority over Indian Affairs, even though the Court has conceded that Indian Tribes possess inherent sovereignty which pre-dates the Constitution. Another group of students reacted viscerally to the Court’s declaration that Indian Tribes exist in a state of pupilage and dependency with the United States. And one very wise student posed the question: at the time these cases were being heard, did Indian Peoples understand the tidal wave of legalized land theft that would take place in the future? The question dropped like a bomb.

In the end, students were right to be upset. Because, in general, the Trilogy has been a tragedy.

Aho.