American Indian Heritage Month: Commemoration vs. Exploitation
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Domestic Dependent Nation

This term refers to the status of Indian tribes in U.S. federal law, recognizing a government-to-government relationship with the United States and based on an inherent, though limited, sovereignty. The term was coined by Supreme Court Chief Justice John Marshall in Cherokee Nation v. Georgia (1831), the second case in the seminal Marshall Trilogy. These cases provided foundational principles for determining the federal–tribal relationship and tribal sovereignty and guided future debate about Native American treaties.

After the discovery of gold there, Georgia began extending its own laws to Cherokee land, annulling Cherokee laws in the process. In Cherokee Nation, the Cherokee sought to prevent the state of Georgia from appropriating land guaranteed under the Treaty of Hopewell (signed with the federal government in 1785) and subsequent treaties. While the Court split evenly in the case, the decisive opinion was provided by Chief Justice Marshall, who dismissed the case on jurisdictional grounds. He found the matter could not be heard because the Cherokee were not a foreign nation; therefore their action did not fall under the grant to the federal authority to hear disputes between the states and foreign states. In a new formulation, Marshall found that while the Cherokee had an "unquestionable" right to the land they occupied unless it was ceded voluntarily to the federal government, "yet it may well be doubted, whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile they are in a state of pupillage. Their relation to the United States resembles that of a ward to his guardian" (Cherokee Nation v. Georgia, at 17).

In his decision, Marshall achieved a compromise that reaffirmed the independent nature of Indian tribes while avoiding a constitutional confrontation between the state and the Supreme Court. The decision recognized the Cherokee Nation as "a distinct political society separated from others, capable of managing its own affairs and governing itself." While they were not "foreign," they were "a state." Their independence was limited in only two matters: the alienation of land and the ability to treat with foreign powers.

The decision's guardian/ward language underpins the doctrine of the federal trust responsibility for Indians. The ambiguity of a status at once "independent" and resembling a "ward" has allowed the Supreme Court in later cases to restrict Indian sovereignty with the trust relationship seen as a source of congressional power over Indians. In declining to view the Cherokee as a "foreign" nation, Marshall originally relied on the U.S. Constitution's Indian Commerce clause (Article I, 8, clause 3), in which Congress is recognized to have the power "to regulate commerce with foreign Nations and among the several states and with the Indian tribes." In fact Congress has legislated well beyond the bounds of "commerce" into all aspects of Indian life.

While some scholars recognize conflicts with internal law, others see no legal (as opposed to political) barriers on Congress's limiting tribal sovereignty (or treaties), so long as it makes that intent clear. Fifty years after Cherokee, the Supreme Court stressed that "[t]hese Indian tribes are the wards of the nation. They are communities dependent on the United States . . ." (United States v. Kagama). The view of Congress's plenary power over Indians was reinforced in Lone Wolf v. Hitchcock. In that case, a number of tribal members challenged the distribution and sale of tribal lands as inconsistent with a prior treaty. The Court found that to agree with that contention would be to ignore "the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States." The treaty was found in no way to qualify the "controlling authority of Congress" (Lone Wolf v. Hitchcock, 564–565). This authority still includes the power to modify or repeal Indian treaties.

Whereas Marshall's reasoning implied an assumption of sovereignty in the absence of statutes or treaties that negate this presumption, more recent interpretations of the phrase "domestic dependant nation" status have seen inherent tribal sovereignty diminished. The focus has been on the "domestic dependant" rather than the "nation" aspect of Marshall's term. Nonetheless, this status continues to underpin important protections for tribal governments, particularly against intrusions on their power by states.

Stuart Bradfield


Further Reading
Cherokee Nation v. Georgia, 30 U.S. (Pet.) 1 (1831).; Lone Wolf v. Hitchcock, 187 US 553 (1903).; United States v. Kagama, 118 US 375 (1886).; Burke, Joseph C. 1969. "The Cherokee Cases: A Study in Law, Politics and Morality". Stanford Law Review 21 :500–531.; Getches, David H., Charles F. Wilkinson, and Robert A. Williams, Jr., eds. 1998. Cases and Materials on Federal Indian Law, 4th ed. St. Paul, MN: West.
 

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