The final contest, Worcester, pitted the property rights of the Cherokee nations against the state sovereignty of Georgia, a bitterly fought battle that laid at the feet of the court the problematic questions pertaining to Indian sovereignty and the nature of tribal government.
In his opinion for the majority in Worcester v. Georgia, Marshall predicted a long and stormy relationship between whites and native peoples: “The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence.” Over the next two centuries, the truth of that statement would be borne out time and again. Marshall’s opinions in the trio of Cherokee cases have been since memorialized by Indian law scholars as the Marshall Trilogy. To the untrained eye, the Trilogy might appear to be a throwback to a forgotten era, yet the legal boundaries it drew into the framework of federalism still play out in federal courtrooms.
“In the Trilogy,” explains Cross, “Marshall accomplished an intellectual feat that is still a source of condemnation or praise, depending on which side of the bed you wake up on.” In these opinions, Marshall laid bare the contradictions that were built into federalism. In reconciling those contradictions, Marshall succeeded in making American law different from indigenous law anywhere else in the world. In post-Trilogy America, the power sharing between states and the federal government would be obligated to include Indian tribes. In ruling on these three cases, Marshall created a new legal distinction for tribes. For the purpose of securing them a place in the legal framework of federalism, he defined them as “domestic dependent sovereign nations.” The glaring omission of the Indians by the founding fathers created a hairline fracture in the U.S. Constitution, one which forced the Marshall court to recognize tribes as having a legal status that located them somewhere between the federal government and the states. States, said Marshall, could not override Indian sovereignty. Only Congress had the power to circumscribe a tribe’s sovereign authority, a plenary power that was balanced and tempered by Congress’ paramount responsibility to the tribes as its all seeing, all knowing trustee.
“I was invited to Ottawa, Canada, recently, to a First Nations legal forum,” says Cross. “Jurists in Canada, New Zealand, and Australia still can’t get over what Marshall did, and how he did it. It was an extraordinary intellectual achievement.
“The first thing he did was break new legal ground by recognizing Indian tribes as the original governments on the North American continent. Now, let’s think about this for a moment. The original governments. That’s a pretty big deal in the 1820s, especially for a lot of white folks who were more or less going about their business pretending that the Indians didn’t exist at all. Let’s say you run a land syndicate in Philadelphia. When you woke up this morning, you figured you had clear sailing all the way to the Pacific Ocean. Nothing can stop you. Then along comes word from Washington telling you that John Marshall says, ‘Nope, sorry, you’ve got it all wrong, boys. Those Indians out there are independent nations, and the only body that has the authority to make land deals with the tribes is the federal government. Sorry about that.’
“Well, suffice it to say that Mr. Marshall’s popularity had its highs and its lows. He wasn’t very popular with a lot of folks, especially with people like Thomas Jefferson, who found it a lot more convenient to argue that red men were just a bunch of savages wandering around in the forest.” Marshall did not want to leave things to chance in future courts. He was using his combined opinions in the Trilogy to remind judges in the far-off future that treaties were “confirmatory doctrines which recognized the tribes to possess the rights of nationhood.” In other words, Marshall took it to be self-evident that sovereignty existed as a precondition to treaties between self-governing entities, a condition that acted as a legal shield protecting all privileges, both reserved and implied, by the standard rights of nationhood as those were construed in the Law of Nations.
“To really appreciate this guy’s intellectual and moral courage,” says Cross, “it helps to look at his opinions in the context of his day. The Cherokee cases asked the Marshall court to answer a very loaded question: ‘What kind of animals are these savages?’ This was no trifling issue back then. Nor was it one that was easily resolved, ignored, or set aside. Somebody, sooner or later, was going to have to answer this question.”
This question put the chief justice at the center of a predicament. He was surrounded by such men as Justice Baldwin and Justice Johnson, who argued that Indians were little more than a bunch of wandering hordes and barbaric savages devoid of any legal standing. Essentially, this was the same “natural law” justification used by crusaders seven centuries earlier to cast the Muslims out of the Holy Lands and seize Jerusalem. It was also the same rationalization used by Spanish conquistadors to destroy the Inca and Aztec civilizations. Marshall’s fellow justices saw the Cherokee cases as an opportunity to project the same ecclesiastically derived law on the native people of North America. By ruling in favor of the state of Georgia in Cherokee Nation v. Georgia, the court, Baldwin argued, could simply reaffirm the claims of conquests made by the original “discoverers” and let the government be finished with its “Indian problems.” To recognize the tribes as sovereign entities was to “do a grave injustice and disservice to the future of our American republic.” From the perspective of the Euro-American immigrants, Baldwin anticipated the interests of extraction industries—such as mining and logging—and the arguments of states’ rights groups and right-wing think tanks—such as the Heritage Foundation—that would be heard in federal courtrooms 180 years later.
Baldwin’s solutions were too simplistic to dissuade Chief Justice Marshall. If adopted, his argument would eventually require a dismantling of the republic’s foundational law. In practice, it could also mean rewriting the Constitution and disavowing the Law of Nations. Besides, by 1776 even the European governments of the original “discoverers” had evolved beyond discovery-era doctrines. Most had come around to formally recognizing native claims to property. As things stood, the American legal system was already deeply compromised by its own internal conflicts of interests with regard to land, Indians, and the rights of the discoverer. In many ways, it remained wedded to medieval law primarily because it promoted the interest of the emerging aristocracy. In 1776, John Adams commented that the lofty but attainable goals of the Revolution were being postponed by “that avarice of land, which has made upon this continent so many votaries to mammon that I sometimes dread the consequence.” In his examination of Revolutionary War- era land syndicates in The American Indian in Western Legal Thought, legal scholar Robert Williams concludes, “Few legislative bodies in history have so mired themselves in corrupted self-interest parading as principle as did the Revolutionary-era American Continental Congress.” Marshall responded to Baldwin’s argument by first turning it upside down, then dropping it on its head.
“Marshall does something really ingenious and unique in the Georgia opinion,” Cross tells his audience. “He says, ‘Look, these Indian tribes are domestically dependent sovereign nations. But nothing in our own Constitution, or in the existing body of law governing European nations, gets me out of the woods. So what I’m going to do is borrow the existing concept of sovereignty, and I’m going to bifurcate it, I’m going to cut it in half. I’m going to apply the domestic rights and privileges of nationhood to the tribes. From here forward, they will retain all the domestic rights to self-regulation and governance that pertain to any sovereign nation. But what they give up in this deal is the rights of a foreign sovereign. We just can’t let them go off and make their own treaties with foreign governments, and they can’t establish their own rules for international commerce. That’s where we draw the line. But within the borders of the United States, these are sovereign, domestically dependent nations.’ Now, this was really big. This was a revolutionary idea, and he used the Trilogy to make it stick.”
As an example of his last point, Cross cites Marshall’s landmark 1823 case, Jo
hnson v. McIntosh, as one whose outcome reverberates in federal courtrooms to this day. Marshall’s opinion would tailor a claim made by European kings to the legal blueprint of the new American republic. The feudal rights of conquest over new lands and the savages who lived there had been seen as the exclusive domain of the crown. With a simple sleight of hand, Marshall substituted discovery-era monarchs with the republic of the United States. In Marshall’s perfect world, the federal government’s new role in Indian Country would be that of the enlightened and benevolent despot.
“We call this Marshall’s Velvet Revolution,” Cross tells the BPA attorneys. “The consequences of the Velvet Revolution are very much with us today. Marshall cleared the way for the federal government to take paramount title over Indian lands without having to resort to bloody battles. He knew the Indian nations would never surrender their land peacefully. Instead of hand-to-hand fighting, which the new republic would likely as not have lost, they accomplished the same thing through a protracted policy of attrition. But he did it by making the federal government a partner with the tribes. He named Congress as the trustee responsible for safeguarding their interests, resources—their lands. Properly managed, this would put their land beyond the reach of speculators and states. It was a brilliant solution, and it could have worked. But the temptation for Congress to reach into the treasure chest was too great. Asking white lawmakers to be responsible trustees, faithful partners to the tribes, was putting the wolves inside the henhouse.”
No one living between the Mandan Villages on the Knife River and Washington, D.C., on the Potomac could foresee how Chief Justice Marshall’s realignment of federalism was going to play out as the young country moved west. Like other pragmatists of his day, Marshall believed that given time, tribal structures would gradually break down. As that political entropy progressed, little by little Indian people would be absorbed into mainstream society. One day in the not-too-distant future, Marshall believed, the thorny questions posed by the trio of Cherokee cases would most likely be moot.
But in 1832, congressmen were restless, and citizens on the frontier were unwilling to put off westward expansion for several more generations. By establishing a new Indian Territory in Oklahoma, legislators believed they had crafted a clever stopgap measure that would buy some time for westward expansion until the inevitable assimilation of the Indian was complete. To achieve that goal as quickly as possible, Congress lent its full support to President Andrew Jackson’s proposal for removing the last remnants of native tribes from the eastern forests. Jackson’s removal policies became law with unanimous support from Congress.
Chief Justice Marshall was not swayed by Congress’ enthusiasm for removal. His 1832 opinion in Worcester declared Jackson’s removal policy as unconstitutional. When President Jackson was told of Marshall’s ruling forbidding the removal, the president is said to have retorted, “If that is Mr. Marshall’s decision, then let him enforce it!” Under pressure from impatient southern politicians, Jackson ordered the U.S. Army to proceed with the plan with all haste. In the following two years, tens of thousands of Indians would be forcibly removed from their treaty-protected homelands east of the Mississippi River and escorted at gunpoint to the new Indian Territory in Oklahoma. Along what the Indians called the “trail of tears,” thousands would perish. The only advocate they had in Washington was the chief justice, and President Jackson knew full well that the power to enforce the laws of the land fell to him and to Congress.
For Marshall, President Jackson’s dismissal of the federal protections guaranteed to the tribes in the Cherokee Nation decision underscored his theory that common men made common presidents and common legislators who were lacking in the character necessary to enforce laws that ran counter to their self-interests. In Marshall’s view, Thomas Jefferson, the slave-owning champion of the common man, epitomized these contradictions. By enacting this policy and forcibly removing thousands of Indians from their ancestral homelands in eastern forests, President Jackson and Congress had formalized those contradictions as official policies of the state. Ignoring Marshall’s opinion, gleeful lawmakers declared the eastern third of the continent open to white settlement and assured white citizens that the nation’s “Indian problems” had been solved once and for all.
But Congress’ assurances to the public were premature. The government’s policy of removal left it unprepared to respond to events that were about to unfold out west. The national legislature had no strategy for dealing with the wild tribes of the plains and Rocky Mountains. Nevertheless, by the 1840s, Texas, the Oregon Country, and the Mexican territories of the Southwest were all incorporated into the rapidly expanding American empire. Also, the restless energy pent up in frontier settlements was a force beyond Congress’ control. The American people, wrote William Gilpin in 1848, were “possessed of an untransected destiny . . . to subdue the continent, to rush over this vast field to the Pacific Ocean, and to establish a new order in human affairs.”
Just how the American pioneers and homesteaders would manage those affairs, and how they would conduct themselves while fulfilling their destiny, was a Gordian knot that would vex Congress throughout the nineteenth century. In a nutshell, the problem was how to square Thomas Jefferson’s dreams of empire with Marshall’s Trilogy and the admonition of Attorney General William Wirt:
So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent. . . . They do not hold under the states, nor under the United States; their title is original, sovereign, and exclusive. We have no more right to enter upon their territory, without their consent, than we have to enter upon the territory of a foreign prince.
Clearly, fulfilling Jefferson’s dream of empire to the Pacific Ocean could not be realized without balancing “the new order in the affairs of men” against the practical problem of making peace and coexisting with dozens of nomadic Indian tribes. It was one thing to round up the scattered remnants of tribes in the eastern forests and relocate the survivors to Oklahoma. The vast, unknown territories in the West presented a different dilemma. Extending Jackson’s removal policies to the Sioux and Cheyenne, the Comanche, Arapaho, Navajo, and Apache, the Flathead, Nez Percé, and Mandan, and dozens of other sovereign nations, was not a solution that could be imposed on the unmapped West.
In fact, it seemed that lawmakers had no sooner set aside the new Indian Territory in Oklahoma than word reached Washington of a momentous achievement. An intrepid, one-handed Irishman by the name of Thomas Fitzpatrick had guided a young Presbyterian missionary couple, Marcus and Narcissa Whitman, to the Oregon Territory. There, the Whitmans intended to answer their calling by opening a mission among the Cayuse Indians of the Walla Walla Valley. Fitzpatrick set out with the missionaries in the spring of 1836. Five months later the trio arrived at their destination on the Columbia River. Though the Cayuse took a dim view of Marcus Whitman’s liturgical fervor and scalped him, he and his wife went to their early reward little knowing how prescient was their intention “to aid the white settlement of this country.” Fitzpatrick’s wagon tracks across the Great Plains, connecting St. Joseph, Missouri, to the Columbia River, would soon be known as the Oregon Trail. When gold was discovered in California in 1848, Fitzpatrick’s highway across the plains became the principal route for the largest sustained family migration in recorded human history.
For the next forty years, Conestoga wagons poured west by the thousands. The journey was so arduous that future trail bosses referred to the Oregon Trail as “the longest graveyard in the world.” Until the railroads replaced the Conestoga in the 1880s, the steel-rimmed wagon wheels that carried settlers across the continent’s broad back would wear ten-inch grooves into limestone bedrock in eastern Oregon. Fitzpatrick’s trail bisected an unbroken grassland, a region of prairie and plains a thousand miles wide and fifteen hundred miles deep. Congress was slow to r
ealize that the western tribes would not stand idly by as the endless flood of settlers destroyed a world that had sustained them for centuries.
As gold fever swept through communities along the eastern seaboard, the new Indian commissioner in Washington, William Medill, was growing increasingly alarmed by reports filtering back from his Indian superintendents on the frontier. The Oregon Trail now bisected the continent. The great herds of buffalo would no longer migrate from north to south across this man-made boundary. Soon faced with starvation, leaders of the tribes dependent on the buffalo’s north-south migration were growing increasingly uneasy over the river of immigrants moving through their lands. Every summer, wagon trains of white settlers stretched from horizon to horizon. Many tribes in the north were now cut off from the only food supply that saw them through the long winters. Medill and his superintendents knew that dwindling resources would inevitably lead to bloody encounters between tribes and settlers. Something had to be done, and quickly.
A man of clear vision and steadfast loyalty to the native people, Medill sternly reminded lawmakers of their moral responsibilities to the continent’s original inhabitants. At the very least, he told Congress, “Whatever may be the nature and extent of [the tribes’] original title to the lands, I think it would be sound policy to make them some annual compensation for the right of way through their country.” The alternative, he warned them, would be written in settlers’ blood.
“These were some of the legal and sociological conditions that set up what we now call the second great era of treaty making,” Cross tells the attorneys. “The first era came earlier in the century, when the new government had to make a lot of quick deals with the eastern tribes to acquire land. Getting its hands on that land was the new government’s only way to start paying off all the debts it ran up with the French in the war against mad King George.”
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