The Removal Era (1820 -1850)
As the United States grew in population, the federal government sought to displace Native Americans to increase room for western expansion. The policy goals of the era focused on removing Native Americans from Indian Country and moving them west beyond the Mississippi River. Congress codified this policy officially in 1830 with the passage of the Indian Removal Act. Application of the act displaced thousands of Native Americans from their homes. The most infamous displacement was that of the Cherokee whose march west resulted in the death of over four thousand tribal members. This death march is commonly referred to as the Trail of Tears.
Congress' actions would not have been possible without the assistance of the judiciary. Between 1823 and 1832, the Supreme Court, led by Chief Justice John Marshall, established several legal doctrines that have impacted federal Indian law well into the Twenty-First Century. The three main cases decided by the Marshall Court ultimately came to be known as the Marshall Trilogy. The cases decided by the court over this nine year period ultimately divested Indians from land ownership and made them mere occupiers of the land in which they inhabited; confirmed the federal government to be the sole body capable of legislating over Indians; and established the Indian canons of construction to help courts interpret treaty rights and other legislative instruments pertaining to Native Americans.
Notable Supreme Court Cases:
- Johnson v. McIntosh, 21 U.S. 543 (1823) - This case decided that Native Americans did not have legal right to convey the land which they inhabited. Through the Discovery Doctrine, the Court determined that European "discovery" of new land gave the discovering nation title against other European powers and the right to acquire title to the land from the indigenous peoples who lived there. This decision reduced Native Americans' right to their ancestral lands to a mere right of occupancy often referred to as a "aboriginal title."
- Cherokee Nation v. Georgia, 30 U.S. 1 (1831) - This case clarified whether states could regulate Indian activity. Prior to the decision, the State of Georgia attempted to regulate the Cherokee Nation through its various counties. Upon hearing the case, the Court ruled that the Cherokee Nation was a "foreign state" under Article III, Section 2 of the United States Constitution. As a result, the Court found that the federal government had sole jurisdiction in the realm of regulating Native Americans. However, in doing so, the Court determined that tribes were "domestic dependent nations" and in a unique trustee relationship with the United States which prevented them free truly realizing self-determination.
- Worcester v. Georgia, 31 U.S. 515 (1832) - This case resolved the ambiguities around which the federal government and states interpreted treaties with Native Americans. One year after Cherokee Nation, the Court reaffirmed the quasi-sovereign rights of tribes and further acknowledge the lack of power that states held over them. This case also established the Indian canons of construction, which recognized that many treaties were created
in bad faith and were often carried out contrary to the agreed upon terms. According to the Court, (1) treaties with Native American tribes should be construed in favor of Native Americans' understanding of the terms, (2) ambiguities should also be interpreted to reflect the Native Americans' understanding of the treaty, and (3) tribes should retain their rights unless the treaty specifically states otherwise.
Selected Library Resources:
- Mark Charles, Unsettling Truths: The Ongoing, Dehumanizing Legacy of the Doctrine of Discovery (2019), eBook
- Robert J. Miller, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (2010), KD5041 .D57 2010
- Steven T. Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008), eBook
- Blake A. Watson, Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights (2012), KF228.J644 W38 2012