Federal Indian Trust

Marshall Trilogy and Federal Protection

Issued in 1493, the church's Doctrine of Discovery intended to control competition among European nations in their claims of political sovereignty over recently “discovered” lands. The preemptive right that the Discovery Doctrine allowed European explorers to claim was the right to exclude other Europeans from extending their nations’ jurisdiction (not ownership) over New World lands and peoples. With that right, Marshall ruled in his U.S. Supreme Court decisions published in 1823, 1830, and 1831, came a responsibility of protection.

The protective aspect of the federal-Indian relationship has been mirrored less in practice than in intention, as revealed in the hundreds of treaties and other agreements negotiated during several centuries of interaction between indigenous Americans and their European colonizers. In treaty after treaty—even early in that relationship, before Euro-Americans began to overwhelm indigenous Americans by the sheer force of their numbers— indigenous leaders are seen trading certain rights to land and resource use for promises of protection, sometimes against other indigenous groups, but mainly against Euro-American settlers.

The Cherokee Nation cases represented in the Marshall Court's 1830 and 1831 decisions (Cherokee Nation v. Georgia and Worcester v. Georgia) make clear that the court considered America's duty toward the Cherokee to be a military one: the Cherokee needed protection from the state of Georgia and its citizens. But by 1830, Congress had passed the Indian Removal Act, and President Andrew Jackson was in league with those who wanted what is now called ethnic cleansing, in which as many Indians as possible were forced from their homelands in the east and marched westward to Indian Territory, encompassing what is now Oklahoma, Nebraska, Kansas, and part of Iowa.

In 1871, the U.S. Congress unilaterally refused to allow constitutionally established, executive treaty-making powers to continue and declared that American Indian tribes would no longer be considered separate self-governing nations. For most of the next century, the protective aspect of the federal-Indian relationship disappeared into a twisted notion of “guardianship.” Marshall had written in Worcester v. Georgia (1831), “[p]rotection does not imply the destruction of the protected.” But American indigenous nations were nearly (some wholly) destroyed in a process that characterized American Indians as mere impediments to Euro-American Manifest Destiny.

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