Treaties and Supreme Court Decisions

Treaties were legal, government-to-government agreements between two legitimate governments - the United States and an Indian nation. When an Indian nation signed a treaty, it agreed to give the federal government some or all of its land as well as some or all of its sovereign powers. In return, the federal government entered into a trust responsibility with the Indian Nation in which the federal government promised to provide protection, benefits, and rights to the American Indian peoples in exchange for some or all of their land. The trust responsibility bound the United States to represent the best interests of the tribe, protect the safety and well-being of tribal members, and fulfill its treaty obligations and commitments.

 The history of the Delaware Nation (Lenape) provides a clear understanding of how a series of treaties with the U.S. government affected their land and their people. As the map below indicates, the Delaware were pushed out of their traditional homeland in Pennyslvania as early as 1682 and by 1750, were mostly settled in Ohio. There they lost a huge amount of land and again were forced to move, first to Indiana and then to Missouri. The 1818 Treaty of St. Mary ceded the remaining Delaware land in Ohio. By 1840, most but not all of the Delaware had left their Ohio homeland. By 1872, most remaining Delaware people had moved to Oklahoma which was designated as Indian Country.

Treaties were not the only legal entities that defined the federal relationship with Indian Nations. As early as 1823, the US Supreme Court also assumed that role. In what is known as the Marshall Trilogy, the Supreme Court established the legal basis for interpreting federal Indian law and defining tribal sovereignty.

• Johnson v. M'Intosh (1823). In 1773 and 1775, Thomas Johnson, bought land from Piankeshaw Indian tribes and in 1818, William M'Intosh bought the same land from the United States Congress. Upon realizing the competing claims, Johnson's heirs sued M'Intosh in the United States District Court to recover the land. The District Court ruled for M'Intosh, reasoning that M'Intosh's title was valid since it was granted by Congress and that the Piankeshaw could not legally sell the land because they never “owned” it. The question the U.S. Supreme Court had to consider was whether federal courts recognized the power of American Indians to give or sell land to private individuals. The Supreme Court upheld the finding for M'Intosh, ruling that individuals could not buy land directly from American Indians because the United States government had acquired ultimate title to Indian lands through the Doctrine of discovery. Indeed, Chief Justice John Marshall's opinion stated that European nations had assumed "ultimate dominion" over the lands of America under the Doctrine of Discovery, and that upon "discovery" the Indians lost "their rights to complete sovereignty, as independent nations," and retained only a right of "occupancy" in their lands. Marshall went on to write that the United States, upon winning independence, became successor nation to the right of "discovery" and acquired the power of "dominion" from Great Britain. Additionally, Justice Joseph Story wrote, "As infidels, heathens, and savages, they [the Indians] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations." Thus, the Court concluded that European and U.S. practice treated American Indians "as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government."
• Cherokee Nation v. Georgia (1831). The Cherokee Nation sued the State of Georgia for passing laws and enacting policies that not only limited their sovereignty, but which were forbidden in the Constitution and federal laws. On appeal, the U.S. Supreme Court had to determine if Indian Nations were foreign nations under the Constitution. Its ruling read, in part, that "the court ... after mature deliberation ... is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution." The Court further proclaimed that Indians were neither US citizens, nor independent nations, but rather were "domestic dependent nations" whose relationship to the US "resembles that of a ward to his guardian." Thus, Indian nations did not possess all the attributes of sovereignty that the word "nation" usually implied and were instead, like "domestic dependent nations."
• Worcester v. Georgia (1832) In September 1831, Samuel A. Worcester and non-Native missionaries, were indicted in the Georgia supreme court for "residing within the limits of the Cherokee nation without a license" and "without having taken the oath to support and defend the constitution and laws of the state of Georgia." Worcester argued that the state action violated the Constitution, treaties between the United States and the Cherokee nation, and the Indian Trade and Intercourse Act of 1790. Worcester was convicted and sentenced to "hard labour in the penitentiary for four years." When the U.S. Supreme Court heard the case on appeal it addressed the question of whether the state the Georgia had the authority to regulate the intercourse between citizens of its state and members of the Cherokee Nation. The Court held that Georgia had violated the Constitution, treaties, and laws of the United States, arguing that "The Cherokee nation, then, is a distinct community occupying its own territory in which the laws of Georgia can have no force. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." The Georgia act thus interfered with the federal government's authority and was unconstitutional. The Court further stated than Indian people were under the "protection" of the federal government and in so being, Congress had overriding power over all Indian affairs.

Thus, beginning with Johnson v. McIntosh, the Supreme Court produced two competing theories of tribal sovereignty:

• the tribes have inherent powers of sovereignty that predate the "discovery" of America by Columbus; and
• the tribes have only those attributes of sovereignty that Congress gives them.

Over the years, the Court has relied on one or the other of these theories in deciding tribal sovereignty cases. Whichever theory the Court favored in a given case largely determined the powers the tribe had and what protections they received against federal and state government encroachment.

The Marshall Trilogy cases bolstered the federal land-taking powers of the 371 treaties that were ratified by the U.S. until 1868. Indians were relegated to a kind of limited sovereignty that was to be governed by paternalistic trust and subject to the interpretation of the US government and its courts. By 1871, that paternalistic trust was clearly-articulated by Congress when it decided to end all government-to-government treaties with Indian nations. No longer would Indians have any negotiating power or say about their treatment at the hands of the US government. Thereafter, such determinations would be made as Congress passed various federal policies and laws.