The Formative Years (1789-1871) I::

The original principles of federal Indian law, generally acknowledged by legal theorists working in the area of Indian policy, are enshrined in the following Supreme Court cases: Fletcher v. Peck (1810), Johnson v. M'Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). All these opinions were authored by one man - John Marshall, who drew upon European and colonial authority and precedent. Chief Justice Marshall is seen to be, then, the "mid-wife" of federal Indian policy.

All these opinions concerned tribal sovereignty and property rights. Tribes were respected as separate nations. Indian occupancy rights were seen to be "as sacred as the fee simple of whites" (Mitchel v. United States, 1835). By the second half of the nineteenth century, however, legal principles concerning tribal sovereignty and land title began to be altered by federal courts. Tribes were treated as "ignorant and dependent" wards of the federal government (Beecher v. Wetherby, 1877). And the Dawes Act came to pass without judicial objection.

Early Development of Federal Indian Law

In Johnson v. M'Intosh (1823), Marshall wrote that the Indians are "the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion . . . [but] their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they please, was denied by the original fundamental principle . . . discovery" (Johnson, at 574). Marshall conceded that the doctrine of discovery had diminished tribal sovereignty and had led to the "considerable" impairment of Indian rights (id., at 584), and that Indian consent must be given before Indian occupancy title could be extinguished. However, he did not disavow the discovery doctrine.

It was in Cherokee Nation v. Georgia (1831) that the Court first conceived of Indian tribes being 'domestic dependent nations'. The Cherokees argued that they should be legally considered to be and treated as foreign nations. However, the Court noted that the relationship between Indian tribes and the United States is unique, that tribes are not states within the United States, but then again they are not totally independent of the US either. The relationship between the Cherokee, for example, and the United States is rather like "that of a ward to his guardian" (id., at 17-18). Marshall stated: "The Indian territory is admitted to compose a part of the United States . . . . In all our intercourse with foreign nations . . . they are considered within the jurisdictional limits of the United States . . . . They acknowledge themselves in their treaties to be under the protection of the United States . . . . They occupy a territory to which we assert a title independent of their will" (id., at 17).

The Court did, however, affirm the Indians' "unquestionable, and, heretofore, unquestioned right to the lands they occupy" (id., at 17), and indicated that only a voluntary cession of land would be honoured in law.

In Worcester v. Georgia (1832), previous court opinions were refined, particularly the doctrine of discovery. Of the latter, Marshall stated that, "[I]t is difficult to comprehend . . . that the discovery . . . should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors" (id., at 543). Warning land-hungry Americans, Marshall once again underscored the importance of Indian consent. The 'domestic dependent' relationship was also elaborated upon. Drawing upon de Vattel, Marshall proclaimed, "[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence - its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state" (id., at 561). Ultimately, however, the discovering nation had preemptive rights over any tribe.

It was during this time that the Removal Act (1830) was passed, which pushed for the removal of Indians east of the Mississippi, to lands west of the Mississippi. President Andrew Jackson spelled out, tellingly, his philosophy behind his support of the bill:

"Philanthropy could not wish to see this continent restored to the condition in which it was found by our forefathers. What good man would prefer a country covered with forests, and ranged by a few thousand savages to our extensive republic, studded with cities, towns, and prosperous farms; embellished with all the improvements which art can devise, or industry execute . . . and filled with all the blessings of liberty, civilization, and religion!"

The removal was to be a voluntary process agreed upon through legal processes. In time the Removal Act proved to mark a significant shift in federal dealings with Indians.