This site is no longer being
maintained at this location.


This section of the site Citizenship Rights has been moved to

Http://racism.org

 

The following sections HAVE NOT moved yet:

Intersectionality, Worldwide and Other Pages

 
  UNITS
Institutional Racism                                          X
01 Racial Groups                                         X
02 Citizenship Rights                                         X
03 Justice                                         X
04 Basic Needs                                         X
05 Intersectionality                                         X
06 Worldwide Issues                                         X
   
   
  Web Editor:
 

Vernellia R. Randall
Professor of Law
The University of Dayton

 

   
   

 

 

NATIVE SENSE - MARSHALL TRILOGY - U.S. SUPREME COURT

http://nativesense.com
jmccanna@nativesense.com

 The following are brief synopsis' of the foundational cases that established the field of federal Indian Law. These cases arose against a backdrop of a growing federal government that was finding itself in increasing conflict with state governments over the extent of its powers. The states were attempting to assert governmental authority over tribal governments. This was particularly true with states in the South. This assertion was opposed by the federal government. In direct response to state assertion of power over tribes, Chief Justice Marshall crafted opinions, usually through consensus building with other justices, that gave rise to the concept of Indian nations retaining their inherent "nations" status, such that all relations with these "nations" were solely within federal power. These cases heralded the introduction of the unique trustee/ward relationship between the tribes and the federal government.
 WORCESTER V. GEORGIA, 31 U.S. 515, 8 L.Ed. 483 (1832). The State of Georgia attempted to force whites to register and pledge allegiance to Georgia law before entry onto the reservation was allowed. Worcester was a postmaster for the mail service and refused to register and pledge his allegiance. The State of Georgia charged him with a crime. The Supreme Court held that Indian tribes, as separate nations, had defined territorial boundaries within which state law was inoperative and ordered Worcester charges dismissed.
 CHEROKEE NATION V. GEORGIA, 30 U.S. (5 Pet.) 1 (1831). The Cherokee Nation sought review with the Supreme Court to impose an injunction on the State of Georgia prohibiting implentation of certain laws of that state on the Cherokee Nation reservation. Pursuant to the Constitution, all regulations concerning commerce with Indian nations were within the sole power of the federal government. In what is known as the Commerce Clause, the Founding Fathers empowered Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Supreme Court was authorized to hear only matters of "original jurisdiction", that is, matters expressly provided for in the Constitution. The Supreme Court held that the Cherokee Nation was not a foreign nation, rather a "domestic dependent nation" subject to the sovereignty of the United States federal government. Since the tribe was not a "state" nor a "foreign nation", the Supreme Court's held that the motion for an injunction was not a matter of original jurisdiction and refused to grant the injunction.
 JOHNSON v. M'INTOSH, 21 U.S (8 Wheat) 543 (1823). This case involved a dispute between two white men who held conflicting titles to land sold within the reservation to them. Johnson held a title sold him by the Tribe within the reservation. Chief Justice Marshall, examined the history of how land was acquired during the European invasion and ultimately held that the tribe did not have an enforceable title to the land it sold. The Indians enjoyed a right of "occupancy" only. The ultimate title to land had passed to the United States government under a principle called "discovery."
The "discovery doctrine" was developed by the Spanish philosopher, Vittorio, in an attempt to justify and explain the taking of land from aboriginal people. In its essence, Vittorio opined that it was the manner in which the civilized nations dealt with each other as it pertained to the land, that governed who had title. A European nation that discovered land occupied by aboriginal people, assumed certain rights over that land that were recognized by the other European nations. It was these "recognized" rights that were passed on to the United States when it won the War of Independence. I will not attempt to go on a further dissertation on the doctrine, except to say that, in it, Marshall found the rationale for asserting federal title power over the land versus state power. As a result, with the adoption of the "discovery doctrine," the Court held the title to land passed to the plaintiff by the Illinois and Piankeshaw tribes was invalid because Indians held only a title of occupancy, and not full title.
 
Submit for Periodic Updates
Update List

CHAPTERS
Civil Rights                                         X
Indigenous People                                         X
Slavery to Reparations                                         X
Treaty of Guadalupe                                         X
Hawai'ian Sovereignty                                         X
Immigration and Race                                          X
Internment                                          X
English Only                                         X
Puerto Rico Citizenship                                         X

 
   
   
OTHER PAGES
What's New                                         X
Obama's Administration                      x
Webinars
Whitest Law Schools                                         X
Law Review Articles                                         X
Racism Surveys                                         X
Syllabus                                         X
Awards                                         X
Search This Site                                         X
Contact                                         X
 

 

 

Same level:
Native American Grave Protection Laws and Culture ] Native Americans and Land ] Tribal  Sovereignty ] Treaties - Soverenity  and American Indians ] The Demise of the Ongwehoweh ] People v. Hall, (1854). ] Recognition of Isle De Jean Charles as a Native American Tribe ] Indian Redress: How the West Was Stolen ] Allotment Act of 1891 ] [ Native Sense - Marshall Triology ] Dawes Act 1887 ] Indian Removal Act (1830) ] A Bird's Eye View of Native American Law ] States and The Native American Graves Protection and Repatriation Act ] Violation of Human Rights of Native Americans ]
Child Level:
Home ] Up ]
Parent Level:
Civil Rights ] Rights of Indigenous People of the US ] Slavery to Reparations ] Treaty of Guadalupe Hidalgo ] Native Hawai'ian Sovereignty ] Immigration and Race ] Internment of Japanese Americans ] English Only and Race ] Puerto Rico Citizenship ] Global Migrations and Imagined Citizenship ]
Units:
[Race and Racial Groups] [Citizenship Rights]  [Justice and Race] [Patterns of Basic Needs] [Intersectionality Issues]  [Human Rights]

 

Always Under Construction!

Always Under Construction!

Copyright @ 1997, 1998, 1999, 2001. 
Vernellia R. Randall

All Rights Reserved
Contact: race.mail@notes.udayton.edu

.

In accordance with Title 17 U.S.C. section 107, some material on this website is provided for comment, background information, research and/or educational purposes only, without permission from the copyright owner(s), under the "fair use" provisions of the federal copyright laws. These materials may not be distributed for other purposes without permission of the copyright owner(s).



Last Updated:
Tuesday, April 24, 2012  

You are visitor number
Hit Counter    
Since Sept. 11, 2001


Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).