"Given the history of U.S. Indian relations, the presumption of congressional good faith and the coincidence of Indian and federal interests in these matters is, to say the least, ironic."

Doctrines of Discovery
Eric Cheyfitz

Part I | II | III | IV

IV. Sovereignty

Ironically, within eight years of Johnson, Marshall would have the example of the Cherokee Nation before him in court, which would appear in the person of its attorneys, William Wirt (the former attorney general) and Thomas Sergeant (a renown legal scholar), to petition the Court to recognize it, based on its treaty relationship with the United States, as a fully sovereign foreign nation, so that as a foreign nation it could bring suit against the state of Georgia in the Court for violating its treaties with the United States. The Cherokees, who had in 1821 incorporated a written language developed in a syllabary by the Cherokee Sequoyah, adopted a written constitution in 1827 modeled on that of the U.S., and established in 1828 the first Indian newspaper in the U.S. (the Cherokee Phoenix circulated in a bilingual Cherokee and English edition), contradicted in the most obvious ways Marshall's stereotype of Indians as unregenerate savages, as did the other four of the so-called "Five Civilized Tribes," (Creeks, Choctaws, Chickasaws, Seminoles) who were effectively dispossessed of their lands in the southeast by the Indian Removal Act of 1830 and forced between 1831 and 1838 out to "Indian territory" (present-day Oklahoma) on the Trail of Tears, for which we find Kevin Gover apologizing one hundred and seventy years later.

It is within Marshall's imperial narrative in Johnson, a narrative loaded with the ideological charge of racial stereotyping, that Indian lands were silently translated into property, and that "the rights of the original inhabitants . . . were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the fundamental principle, that discovery gave exclusive title to those who made it" (574).

The language here may be deceiving because it only seems to restrict Indian "power to dispose of the soil at their own will." But, as I have emphasized, Indian tribes had no interest in selling their land outside of a context of conquest, that is, of forced sales called treaties. And within this context of conquest, for which "discovery" is a euphemism, the forced translation of Indian land into property, accompanied by the forced transfer of "exclusive title" to the conquerors, gave to the conquerors ultimate control over that land in all respects, as the history of federal Indian law demonstrates. The legal scholar Robert A. Williams Jr. catches the force of Johnson at the time it was enacted, when he notes: "While the tasks of conquest and colonization had not yet been fully actualized on the entire American continent, the original legal rules and principles of federal Indian law set down by Marshall in Johnson v. McIntosh and its discourse of conquest ensured that future acts of genocide would proceed on a rationalized, legal basis." The fundamental decision in Johnson (the transfer of title of all Indian land to the federal government), which is the cornerstone of the colonial edifice of federal Indian law, remains intact, and thus so does the "legal" ground of this decision: the imperial "doctrine of discovery." The United States continues to celebrate this doctrine every Columbus Day, a day of mourning and a continued call to resistance in Native American communities.

Marshall's rulings in Johnson and Cherokee Nation helped solidify the geopolitical integrity of the expanding and expansionist United States as a nation during the age of Manifest Destiny. His ruling in Cherokee Nation--that the Cherokees were not a foreign nation thus barring them from suing Georgia for their treaty rights before the Court--avoided as well a potential constitutional crisis: a confrontation between the Court and both the president and the state of Georgia. Andrew Jackson had refused the Cherokees' request for U.S. troops to enforce their treaty rights (as a foreign nation) against Georgia, which was invading their lands and usurping their laws. And Georgia itself refused to appear before the Court in this case, as it would in Worcester, asserting that it was solely a state matter. But the Court's expedient politics in Cherokee Nation were paid for by the Cherokees and ultimately all Indian communities. For the Marshall decision rationalized the breaking of Native treaty rights and thus paved the way for "removal," or what Gover refers to rightly as "ethnic cleansing," as the centerpiece of federal Indian policy. This policy of ethnic cleansing did not begin nor end with the infamous Trail of Tears, on which approximately four thousand Cherokees died from both murder and murderous exposure in 1838.

In the same month (March 1831) the Court's decision in Cherokee Nation was being handed down, the state of Georgia, in violation of Cherokee sovereignty guaranteed by treaty, arrested two missionaries, Samuel Worcester and Elizur Butler, who were living and working with the Cherokees on Cherokee lands at Cherokee behest. The two had broken a Georgia law interdicting "white persons" from "residing within the limits of the Cherokee nation without a license" (31 U.S. at 528). That law itself, the two stated in their representation by Wirt and Sergeant, violated both the Cherokees' sovereignty over their internal affairs and U.S. sovereignty over the Cherokees. Reading Worcester v. Georgia, the final case in the "Marshall Trilogy," which was decided only a year after Cherokee Nation and is based in the same set of legal issues regarding Indian sovereignty, is to experience the schizophrenia, the constant double takes, induced by an analysis of federal Indian law. For in it, Marshall echoes the arguments presented in the dissenting opinion of Justice Thompson in Cherokee Nation (arguments reasoning that the Cherokees are a fully sovereign, foreign nation) in order to reach the following conclusion: "The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress [sic]. The whole intercourse between the United States and this nation, is, by our constitution [sic] and laws, vested in the government of the United States" (561).

Marshall's reasoning in Worcester, if not his opinion, contradicts both his reasoning in Johnson, based on "the doctrine of discovery," which in Worcester he is at pains to qualify in the most instrumental of political terms, and in Cherokee Nation. But as in the Freudian model of the psyche, such contradictions remain permanently in the unconscious so that consciousness, in this case the law, can appear coherent. While the language of Marshall's opinion in Worcester seems inconsistent with the infantilizing language in Cherokee Nation that describes the Cherokees (and by extension all Indian communities) as the "ward" or "pupil" of the federal government, this language is nevertheless careful not to limit the federal government's powers in Indian affairs but only to assert the limits of the power of the states in relation to both tribal autonomy and the authority of the federal government. Worcester makes clear that federal authority is preeminent in Indian affairs and that it is vested constitutionally in the first instance in Congress. Far from rocking the foundation of the colonial edifice of federal Indian law, Worcester puts the capstone on it by making clear what this law will come to define as the "plenary power" of Congress in governing Indian country, a power if not absolute then virtually absolute in its force, though, it must be emphasized, a power that Indian communities have historically resisted and continue to resist both in and outside the courts.

This "plenary power" allowed Congress in 1871 to pass a law prohibiting any further treaty making with Indian tribes, though treaties signed before this time retain the force of law and typically form the basis for ongoing tribal land claims. And in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the Supreme Court ruled that the plenary power of Congress in Indian affairs allowed it "to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indian themselves, that it should do so" (566).

Given the history of U.S. Indian relations, the presumption of congressional good faith and the coincidence of Indian and federal interests in these matters is, to say the least, ironic. While subsequent Supreme Court decisions have qualified to some extent the congressional power to abrogate treaties--Congress must compensate tribes monetarily for land taken that was reserved by treaty, see United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938) and United States v. Sioux Nation of Indians, 448 U.S. 371 (1980)--"the holding [in Lone Wolf] remains a valid precedent," according to Getches, Wilkinson, and Williams in Cases and Materials on Federal Indian Law (4th ed., St. Paul, Minn., 2000), one of the definitive textbooks in federal Indian law today.

Former BIA head Kevin Gover might wish that "in this era of self-determination, . . . the Bureau of Indian Affairs is at long last serving as an advocate for Indian people in an atmosphere of mutual respect," but the continuing colonialism of federal Indian law subverts such advocacy at its source.

Discuss this article in the Republic of Letters