Adam Mayer
3/5/08 Discussion
Berger, Thomas R. 1991. A Long and Terrible Shadow,
White Values, Native Rights in the Americas, 1492-1992. Douglas and McIntyre,
Toronto.
Chapter 6
John Marshall and the Indians
John Marshall was Chief Justice from 1801 to 1835, when the United States was undergoing rapid expansion westward. He is well known for multiple judgments associated with Indian sovereignty and land entitlement. In the beginning, the United States had taken over the Eastern Seaboard and progressed westward, displacing some aboriginal peoples along the way. Many reasons, such as the need for progress, Christianity, and superiority over the Indians, were given for the forcing of the Natives westward. A provision was made in the constitution to alleviate conflict by creating an ‘Indian Country’. The boundaries between the U.S. and the ‘Indian Country’ continued to progress westward without federal border enforcement. ‘The Indians were conceived as a people apart, a distinct people found everywhere throughout the continent. They were not, however, citizens of the United States; they were not part of the American adventure.’ The thought to allow the Indians to have a state within the Union was proposed and pondered for nearly a century, but never took hold in society.
After signing the Treaty of Paris in September 1783, Congress claimed the territory west of the original thirteen colonies, but the Indian lands couldn’t be settled ‘without the expressed authority of Congress.’ The Northwest Ordinance and Non-Intercourse Act stated that only Congress could negotiate with the Indians or obtain Native land. Lack of enforcement by the Federal government allowed the settlers to ignore these laws and force the Indians from their native lands. In Georgia, the Creeks and other tribes provided resistance, provoking treaty negotiations. A treaty was written up that guaranteed the Creeks and other tribes the right to self-government and undisturbed land rights to a large parcel of land. Georgia would not comply with the treaty agreement, a commonality shared with other states. Washington and succeeding presidents were unable to protect the Indians from westward expansion so they were relocated farther west of the Mississippi.
John Marshall began to question the legitimacy of unwelcome occupation of the Native people’s land in the 1820s and 1830s. The United States found it necessary to take the Indian lands because they failed to conform to civilized norms, had a warlike character, and fail to treat land as a source of income. In 1928 Marshall’s colleague addressed Congress and declared that the Natives possess a natural right of occupancy, but Georgia took over Cherokee land the same year. Many of the Cherokee people had given up hunting, became farmers, and created schools and adopted other white practices.
A Cherokee, George Corn Tassels, was indicted for murder of another Cherokee. The Georgian courts found Tassels guilty and executed him so the Cherokees went to the Supreme Court for unlawful jurisdiction of the state of Georgia. John Marshall ruled against the Cherokee nation in Cherokee Nation v. Georgia based on wording in the constitution that didn’t include Indian controversies. This ruling surfaced the question of how to classify the Indians. Marshall developed a theory that tribes were domestic, dependent nations. After contemplation of other rulings, Marshall discussed the principle of discovery and declared treaties are the supreme law of the land. President Jackson made it known that any people within the states not subject to state law must be removed. Marshall’s previous decision for the Cherokees is, therefore, disregarded. The Indians were later given the right to remain a separate people with their own land and government. John Marshall’s judgments were implemented and still hold true today throughout the world between groups.
Date created: June, 2002
Last modified: March, 2008
Copyright ©2003, 2004, 2005, 2006, 2007 George R. Spangler