UNDERSTANDING 19TH CENTURY FEDERAL INDIAN LAW
Source: American Indian Issues: An Introductory and Curricular Guide for Educators
URL: http://americanindiantah.com/history/nar_19thcenturyrelations.html
Retrieved: 6 October 2014
Treaties were not the only legal entities that defined the federal relationship with Indian Nations.
As early as 1823, the US Supreme Court also assumed that role. In what is known as the Marshall
Trilogy, the Supreme Court established the doctrinal basis for interpreting federal Indian law and
defining tribal sovereignty.

Johnson v. M'Intosh (1823). In 1773 and 1775, Thomas Johnson, bought land from Piankeshaw
Indian tribes and in 1818, William M'Intosh bought the same land from the United States
Congress. Upon realizing the competing claims, Johnson's heirs sued M'Intosh in the United
States District Court to recover the land. The District Court ruled for M'Intosh, reasoning that
M'Intosh's title was valid since it was granted by Congress and that the Piankeshaw could not
legally sell the land because they never “owned” it. The question the U.S. Supreme Court had
to consider was whether federal courts recognized the power of American Indians to give or
sell land to private individuals. The Supreme Court upheld the finding for M'Intosh, ruling that
individuals could not buy land directly from American Indians because the United States
government had acquired ultimate title to Indian lands through the "doctrine of discovery."
Indeed, Chief Justice John Marshall's opinion stated that European nations had assumed
"ultimate dominion" over the lands of America under the Doctrine of Discovery, and that upon
"discovery" the Indians lost "their rights to complete sovereignty, as independent nations," and
retained only a right of "occupancy" in their lands. Marshall went on to write that the United
States, upon winning independence, became successor nation to the right of "discovery" and
acquired the power of "dominion" from Great Britain. Additionally, Justice Joseph Story wrote,
"As infidels, heathens, and savages, they [the Indians] were not allowed to possess the
prerogatives belonging to absolute, sovereign and independent nations." Thus, the Court
concluded that European and U.S. practice treated American Indians "as an inferior race of
people, without the privileges of citizens, and under the perpetual protection and pupilage of
the government."

Cherokee Nation v. Georgia (1831). The Cherokee Nation sued the State of Georgia for
passing laws and enacting policies that not only limited their sovereignty, but which were
forbidden in the Constitution and federal laws. On appeal, the U.S. Supreme Court had to
determine if Indian Nations were foreign nations under the Constitution. Its ruling read, in
part, that "the court ... after mature deliberation ... is of opinion that an Indian tribe or nation
within the United States is not a foreign state in the sense of the constitution." The Court
further proclaimed that Indians were neither US citizens, nor independent nations, but rather
were "domestic dependent nations" whose relationship to the US "resembles that of a ward to
his guardian." Thus, Indian nations did not possess all the attributes of sovereignty that the
word "nation" usually implied and were instead, like "domestic dependent nations."

Worcester v. Georgia (1832) In September 1831, Samuel A. Worcester and non-Native
missionaries, were indicted in the Georgia supreme court for "residing within the limits of the
Cherokee nation without a license" and "without having taken the oath to support and defend
the constitution and laws of the state of Georgia." Worcester argued that the state action
violated the Constitution, treaties between the United States and the Cherokee nation, and the
Indian Trade and Intercourse Act of 1790. Worcester was convicted and sentenced to "hard
labour in the penitentiary for four years." When the U.S. Supreme Court heard the case on
appeal it addressed the question of whether the state the Georgia had the authority to regulate
the intercourse between citizens of its state and members of the Cherokee Nation. The Court
held that Georgia had violated the Constitution, treaties, and laws of the United States,
arguing that "The Cherokee nation, then, is a distinct community occupying its own territory
in which the laws of Georgia can have no force. The whole intercourse between the United
States and this nation, is, by our constitution and laws, vested in the government of the United
States." The Georgia act thus interfered with the federal government's authority and was
unconstitutional. The Court further stated than Indian people were under the "protection" of
the federal government and in so being, Congress had overriding power over all Indian affairs.
Thus, beginning with Johnson v. McIntosh, the Supreme Court produced two competing theories
of tribal sovereignty:
 the tribes have inherent powers of sovereignty that predate the "discovery" of America by
Columbus; and
 the tribes have only those attributes of sovereignty that Congress gives them.
Over the years, the Court has relied on one or the other of these theories in deciding tribal
sovereignty cases. Whichever theory the Court favored in a given case largely determined the
powers the tribe had and what protections they received against federal and state government
encroachment.
The Marshall Trilogy cases bolstered the federal land-taking powers of the 371 treaties that were
ratified by the U.S. until 1868. Indians were relegated to a kind of limited sovereignty that was to
be governed by paternalistic trust and subject to the interpretation of the US government and its
courts. By 1871, that paternalistic trust was clearly-articulated by Congress when it decided to end
all government-to-government treaties with Indian nations. No longer would Indians have any
negotiating power or say about their treatment at the hands of the US government. Thereafter,
such determinations would be made as Congress passed various federal policies and laws.