This is the fifth article in a series that examines themes and issues identified in my book Native Americans, the Mainline Church, and the Quest for Interracial Justice (Chalice Press, 2017). In this article, I focus on the central issue of ownership of the land as it relates to the quest for interracial justice. At one time Indians exercised dominion over 550 million acres of land. Today the federal government owns Indian reservation land and holds most tribal land in trust. The 566 federally recognized tribes now hold only one eleventh of the original, but still more than 50 million acres of land, roughly two percent of the United States. Individuals hold land allocated by the (Dawes) General Allotment Act of 1887.
Examination of the Dawes Act, the plenary power of Congress, the eminent domain controversy, and other closely related issues are beyond the scope of this essay, the primary focus of which is the Marshall trilogy–three cases decided by the US Supreme Court in the 1820s and 1830s that have become the basis of US-Indian law. I begin, however, with a sketch of events from colonial times that create a context for understanding the trilogy.
Blake A. Watson writes in an essay entitled “John Marshall and Indian Land Rights” that as early as 1630, Roger Williams, the founder of Rhode Island, “formulated the simple, yet profoundly radical, view that Europeans could ‘justly occupy lands in the Americas only by purchasing those lands from their rightful owners, the Indians’” (Watson 2006: 481). Roger Williams’ sermons on “The Sinne of the Pattens,” (letters from English monarchs granting English colonizers exclusive title to “all the . . . Lands and Grounds . . . of America”) were not well received by leaders of either the Plymouth Colony or the Massachusetts Bay Colony, who claimed the land they occupied was vacuum domicilium (empty space), (2006: 487-498), and was theirs by right of discovery, royal or papal patents, or possession. Watson adds that like Williams, the Dutch and the Swedish colonizers insisted on purchase of native lands (2006: 517 – 520, 517). Historical archives hold ample documentation showing that before the Revolutionary War many Euro-Americans purchased land from Indians. Those who did so understandably became defenders of the natural rights to property, and opponents of the doctrine of discovery, patents, and expropriation of Indian land.
By the time the landmark case Johnson v. McIntosh(1823) reached the Supreme Court, arguments for and against Indian ownership of the land had been well rehearsed among white settlers. In this case, Johnson argued that title to land in Illinois that his ancestors had purchased from the Piankeshaw Indians was valid. McIntosh countered that he had purchased title to the same property from the US government and that his claim superseded Johnson’s claim. Indians were not represented or directly involved in this dispute. In summary, Marshall, writing a unanimous opinion, argued that Indians lived on the land and therefore had a natural right to occupy, but they did not have ownership of it. Peter d’Errico notes that to invalidate Indian claims Marshall adopted a “devise of transient ‘American Indian Sovereignty,’ an indigenous sovereignty capable of effacing itself or of being effaced” (d’Errico 2000: 19–30). In effect Marshall was saying that the United States would not recognize the right of Indians to own property or validate permanent Indian ownership of land. He also argued that the superior nature of Euro-American civilization and Christianity would be traded as “compensation” for colonial subjugation of Native peoples. Going beyond theological arguments, Marshall added that the Constitution gave the United States or individual States clear title to all land within their boundary lines. In summary d’Errico writes: “Johnson v. McIntosh, the first in the Marshall ‘Indian trilogy,’ constitutes one of the most ambitious efforts in legal history to tailor new clothes for an emperor” (2000: 19). It is also noteworthy, as d’Errico points out in this article, that Marshall’s family had significant land claims in Virginia and Kentucky that would have been adversely effected by any outcome other than the one Marshall achieved.
In Cherokee Nation v. Georgia (1831), the second case in the trilogy, the Court described the Cherokee Nation as a “domestic dependent nation” and said its relation to the federal government is that of “ward to his guardian.” Milner S. Ball explains that the justices thought that they were creating a moral trust, giving enlightened Christians “control of an ignorant and dependent race” (Milner 2000: 1193–1194). Inherent in this decision was the implication that Indians were incompetent to handle their own affairs. Thus, this case became the basis for establishing a “trust” relationship between the federal government and Indians, and opened the door for Congress to give itself plenary power.
Worcester v. Georgia (1832), the third case in the trilogy, came about after Georgia convicted two Christian missionaries, William Worcester and Samuel Butler, of violating its laws prohibiting white persons from entering Cherokee territory without a license from the state. Worcester, a US citizen, challenged Georgia’s law. Drawing on the doctrine of discovery, the image of Indian savagery, and Johnson v. McIntosh, the Court opined that the federal government had exclusive supremacy and control over Indian affairs. The case is noteworthy as the first state’s rights case to come before the Court. Native peoples cite this case today because in his decision Marshall affirmed the sovereignty of Indian nations.
Robert A. Williams, Jr., identifies several principles of the Marshall model of Indian rights arising from this trilogy (Williams 2005: 70). His summary is worth quoting at length:
"First, the model “is based upon a foundational set of beliefs in white racial superiority and Indian racial inferiority. Second, the model defines the scope and content of the Indian’s inferior legal and political rights by reference to the doctrine of discovery and its organizing principle of white supremacy over the continent of North America. Third, the model relies on a judicially validated language of Indian savagery to justify the asserted privileges. Finally, the Court’s role as a creature and instrument of these originating sources makes it impossible for the justices to do anything meaningful or lasting to protect Indian rights . . . “ (Williams 2000: 70).
Let me recap what we have learned here. First, nowadays the drive for sovereignty is a primary force in Indian America. Second, we should not be bound or guided by Marshall’s quasi-religious and racist arguments based on the doctrine of discovery, the image of savage Indians who are wards of the government, or assertions of Christian superiority. Third, importantly, we have identified religious and moral grounds for opposing the Court’s line of argument. The last liberating word belongs to Steven T. Newcomb:
"We urgently need to learn how to make meaning--cognitively, socially, and culturally--by establishing human conventions that accentuate a love of life and an abiding appreciation for the immense beauty of life. . . . The wisdom to be found in the traditional knowledge of our Original Nations and Peoples provides one possible means of achieving the much needed transformative paradigm" (Newcomb 2008: 135, 136).
Ball, Milner S., 2000. “John Marshall and Indian Nations in the Beginning and Now.” Chicago: The John Marshall Law School. The John Marshall Law Review, 33 (4) Art. 23.
d’Errico, Peter, 2000. “John Marshall: Indian Lover?” Santa Barbara, CA:, ABC-CLIO. Journal of the West, Inc., 39(3) Summer 2000.
Newcomb, Steven T., 2008. Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery. Golden, CO: Fulcrum Publishing.
Watson, Blake A., 2006. “John Marshall and Indian Land Rights: A Historical Rejoinder to the Claim of ‘Universal Recognition; of the Doctrine of Discovery.” South Orange, NJ.: Seton Hall Law Review, 36 (2) Art. 4.
Williams, Robert A., Jr. 2005. Like A Loaded Weapon: the Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press.
David Phillips Hansen
Author: Native Americans, the Mainline Church, and the Quest for Interracial Justice (Chalice Press, 2017).