The Marshall Trilogy
Three Legal Cases Form the Basis of American Indian Law
Chief Justice John Marshall and the three cases that form the basis of American Indian Law
John Marshall served as the third Chief Justice of the US Supreme Court from 1801 until his death in 1835. The field of US Constitutional Law still bears the imprint of his opinions. Three, in particular, JOHNSON v. M'INTOSH, CHEROKEE NATION v. GEORGIA, and WORCESTER v. GEORGIA, otherwise known as the
MARSHALL TRILOGY formed the basis for American Indian sovereignty and American Indian Law.
American Indian Law and The US Constitution
For a nation already pressing into its frontiers, the Founding Fathers were not very forward thinking on dealing with Indians. There is little mention of Indians in the The US Constitution
Article I Section 2 Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed.... (The XIVth Amendment repeats this language with regard to Indians.)
Section 8 Clause 3 (Commerce Clause): [The Congress shall] have power to... regulate commerce with foreign nations, and among the several states, and with the Indian tribes...
Johnson v. M'Intosh
In a land dispute Marshall found, based on the
The Doctrine of Discovery first established by the Spanish to justify taking of Aboriginal lands, that the title to Indian lands belonged to the US Government and that Indians enjoyed only a right of occupancy. This is the basis, whereby, even today reservation land and income there from is held in trust by the US Government. Alleged mishandling of trust accounts is behind the current lawsuit Cobell v. Norton (see Are The Indians Ripping Us Off by the author)
Cherokee Nation v. Georgia
Based on the Commerce Clause, the Supreme Court determined that Indian nations were not quite states but not foreign nations either. They were "domestic protected nations," and as such by-passed state government and dealt directly with the US Government. This state of limbo continues to be defined through subsequent case law.
Worcester v. Georgia
The Court found that state law was inoperative within reservation boundaries. States and municipalities continue to dispute this in the area of criminal law but most significantly when it comes to Indian Gaming and other business enterprises. (see Whose Money Is It by the author)
These three cases, making up The Marshall Trilogy still form the basis for American Indian Law.
