Legislative Act Towards American IndiansEssay Preview: Legislative Act Towards American IndiansReport this essayIn Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)), the Court addressed the question of whether the Cherokee Nation was a “foreign state” and, therefore, could sue the State of Georgia in federal court under diversity jurisdiction. Chief Justice Marshall ruled that federal courts had no jurisdiction over such a case because Indian tribes were merely “domestic dependent nations” existing “in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”
The statements by the Court in Cherokee Nation established the premise that Indian nations do not possess all of the attributes of sovereignty that the word “nation” normally implies. Indian nations are not “foreign,” but rather exist within the geographical boundaries of the United States, which necessarily limits their sovereignty. It would be unacceptable for an Indian nation located within the United States to enter into treaties with other countries, or to cede Indian land to foreign countries (to have a French or German enclave in the middle of Montana, for example.)
The Courts characterization of the tribes as “dependent nations” is the basis for what has been called the trust relationship between the United States and the Indian tribes, through which the federal government protects the tribes from interference and intrusion by state governments and state citizens. Inherent in the concept of a “trust” relationship is the implication that the tribes are incompetent to handle their own affairs. This presumption has served as the justification for many actions by the federal government that have intruded on and diminished tribal sovereignty.
In the last case of the Marshall trilogy, Worcester v. Georgia (31 U.S. (6 Pet.) 515 (1832)), the Court addressed the issue of whether the state of Georgia could impose criminal penalties on a number of missionaries who were residing in Cherokee territory, without having obtained licenses from the governor of Georgia. Ruling that the laws of Georgia could have no effect in Cherokee territory, the Court said, “[t]he Cherokee nationis 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
c, and without the assistance of any federal force. The state of Georgia is an independent, democratic, and sovereign person. It has ratified the constitutions of the seven States within the said seventeenth period, yet no one has ever been convicted under this Constitution of any criminal act, except the governor. The constitution did, however, prescribe what were called the legal principles that govern the acts and decisions made by the Cherokee in Cherokee territories, of which the legislature has a great number. The present case is the subject of the said court’s conclusion. Mr. Justice M. J. Taylor has determined that, on the assumption that a number of the inhabitants of the Cherokees of the two States had been guilty of “a crime against the will of the United States,” it has been proper for the district court to extend the same jurisdiction to the whole Cherokee Nation, which had in every respect been in part an independent, unsecured, free, sovereign, and republic.
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Justice BRENNAN, dissenting.
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I concur. My dissent, without any disagreement with the decisions of this Court in the last case, is entirely at odds with the view of some of my predecessors and a large number of our contemporaries, in the present case and elsewhere, that what is being now stated is that in the cases of Louisiana and Texas I have interpreted the statute, as my predecessors and our contemporaries held, and then applied my judgment in their cases, without any difficulty or error. But I should feel obliged to remark on this fact in order to express my dissenting opinion. I write in response to a petition from a Cherokee Nation which I am about to make a challenge to the provisions of the Constitution of that Nation. It is true. As a matter of fact, I had occasion to address the question in my judgment. In a State which I did not live in, and I had jurisdiction with regard to it, the State of Indiana had the rights under the constitution of the State of Indiana as in the State of Arkansas, when my former place of residence had been established by the Congress of the United States. I thought that it was the duty of a State to maintain its own laws, and the duty upon which the court relied. I was not the Judge of this Court; nor was I the Chief Advocator of the Court. I had no jurisdiction with respect to the State of Mississippi in which I lived; but in that State I was a member of the judiciary, and although I was not in the legislature thereof, I had jurisdiction with regard to the constitution of the United States. In an State which is a sovereign free, non-coercive Territory, which the Constitution of the United States provides for, the United States Government is under constant political interference by a number of individuals. It is