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Marshall Trilogy

In legal analysis, "Marshall Trilogy" is used to describe Chief Justice John Marshall's rulings between 1823 and 1832. Three key Native rights decisions mark Marshall's tenure on the Supreme Court: Johnson and Graham's Lessee v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). Each decision dealt with important questions left unresolved after the U.S. separation from Great Britain in 1783. These decisions defined rights of territoriality, relationships between Native groups and the U.S. government, and relationships between Native groups and state governments.

In Johnson v. McIntosh (1823), the Court resolved the question of territorial possession and the theory under which it worked. That decision continued the long-practiced European tradition of claiming lands by right of discovery as long as they were unoccupied by Christian peoples. When the Spanish conquered the Americas in the 1500s, Spanish theologians argued before the Spanish Court the legality and morality of Spanish intrusion into the Americas. The decision eventually reached was that Europeans had the right to intrude peacefully into indigenous lands, but that Native peoples retained rights of occupation of those lands. Marshall adopted that theory but amended it with his own thinking, asserting that U.S. title to lands claimed in North America descended directly from English, French, and Spanish titles based on right of prior discovery and settlement. But the United States obtained only the exclusive right to extinguish Native title to lands. The U.S. title to the lands, then, depended on extinguishing Native rights in the soil. Indian rights, Marshall asserted, were not extinguished by European discovery, but merely "impaired." The consequences of this decision were to diminish Native groups' vested rights in their lands in exchange for recognition of some sort of political sovereignty, undefined legally or constitutionally by that decision.

The other two important decisions, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), resolved the question of sovereignty, at least from the U.S. perspective, although Native peoples may have had other opinions. The two cases arose over removal of all Native groups from east of the Mississippi River to the region known as Indian Territory or into the Great Plains generally. In Johnson v. McIntosh (1823), Marshall had left open the question of the relationship between Indigenous tribes and the U.S. government. In Cherokee Nation v. Georgia (1831), he resolved that question. The state of Georgia had in the late 1820s enacted a series of laws extending its authority over the Cherokee Nation's reservation in the northwestern corner of the state. State officials used violence to force Cherokee leaders to submit to their authority.

The Cherokee resorted to American law to challenge the issue. In 1830 the Cherokee brought suit directly in the U.S. Supreme Court demanding that as a foreign power their rights be protected by the federal government from state encroachment. For a number of reasons, the Supreme Court denied the writ the Cherokee sought. Marshall stated that the Court did not have jurisdiction, because the Constitution gives the Court original jurisdiction in only two types of cases. The Cherokee had sued under one of those types: the right of a foreign government to sue a state government for infringement of its rights or powers. Marshall denied that the Cherokee Nation was a foreign power even though British colonial policy had operated as if Native peoples of eastern North America were separate, foreign powers. The United States, as an infant nation after 1783, had continued that tradition, behaving as if indigenous nations were foreign powers to be dealt with formally through diplomatic treaties. The Constitution made no clear statement about this question, so the Court had the opportunity at this time to resolve the issue. Relying on his own nationalism and the McIntosh decision, which suggested a different relationship, Marshall declared the Cherokee Nation—and, by extension, all other Native nations—to be "domestic dependent nations," choosing the analogy of "a ward to his guardian" to describe the relationship between indigenous groups and the U.S. government—a relationship on which most future federal government responsibilities for Native affairs rested. Because the Cherokee were not in the Court's eyes a foreign power, they could not sue under the original jurisdiction clause describing the Supreme Court's powers in the Constitution.

The Worcester v. Georgia (1832) decision, however, did support the Cherokee; but the decision arose from Marshall's sense of nationalism and his concept of the power of the federal government, not from his perception of rights or justice inherent in the Native position. In Worcester, the Court upheld a challenge to Georgia's authority. Rev. Samuel Worcester and several other missionaries had gone by Cherokee invitation onto the Cherokee reservation, ignoring Georgia's prohibition of any whites entering the reservation without express permission from state authorities. The missionaries were arrested, tried, and sentenced to four years' hard labor. They appealed in late 1831 to the Supreme Court, which rendered its decision in early 1832. The Court held that Georgia had no right to interfere with what were purely the domestic affairs of the Cherokee. Because the Constitution seemed to say that all relations between Natives and whites rested in the hands of the federal government, Georgia had no right to interfere with Cherokee policy. The Court struck down the state's conviction of Worcester and the other missionaries; but the president of the United States, Andrew Jackson, a strong believer in the removal of Indians, refused to execute the Court's decision. Thus it became meaningless. However, the decision extended to all laws over the Cherokee Nation that Georgia had passed, finding them unconstitutional. By 1835 the U.S. government had forcibly removed the Cherokee to Indian Territory, although a small portion of the population found refuge on a farm in western North Carolina where they remain today, forming the Eastern Cherokee reservation.

The cases in the Marshall Trilogy form the foundation for federal government-Native relationships. As such, they are quite important to the civil, political, legal, and constitutional rights of all Native groups today. Each party, Native and government, today continues to use the often contradictory ideas in the decisions to suit its own purposes.

Timothy Morgan

Further Reading
Baker, Leonard. John Marshall: A Life in Law. New York: Collier Books, 1981; Francis N. Stites. John Marshall: Defender of the Constitution. Boston: Little, Brown, 1981; G. Edward White, The Marshall Court and Cultural Change. New York: Oxford University Press, 1991; Gibson, Arrell Morgan, The American Indian: Prehistory to the Present Lexington, Mass.: D. C. Heath and Company, 1980).

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