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Document Analysis
The case of Cherokee Nation v. Georgia defined the relationship between the United States and the American Indian nations inhabiting the land. In writing the
majority opinion in the case, John Marshall articulated
maturing ideas on constitutionally defined relationships
between Indian nations and US federal and state governments. He also explored the right of Indian nations
to bring suit in original jurisdiction cases and conceived
of native nations’ status as “domestic dependent nations.” The Cherokee Nation court opinion reflects Marshall’s attempts to navigate the increasingly precarious
position of native peoples in the Southeast, the hostile
political environment surrounding the court, and the
limitations set by the Constitution.
Original Jurisdiction
When deciding on how to best address the Cherokee Nation’s legal case, the tribe’s attorney, William
Wirt, presented John Ross, the Cherokee principle
chief, with three options. An individual suit could be
made against a state official to challenge the restrictive
Cherokee codes of the state legislature, but Wirt was
wary of seeking legal recourse from the lower courts.
The state and the Cherokee Nation could jointly present the case to the Supreme Court to determine the
laws’ constitutionality, a proposal the Georgia governor
rejected outright. The Cherokees could appeal a case
tried in Georgia to the Supreme Court, but after the
collapse of the Tassel case, Wirt decided to press forward with the last option: Wirt would attempt to convince the Supreme Court to hear the case on the basis
of original jurisdiction. In article 3, section 2, clause
2 of the US Constitution, the Supreme Court is given
original jurisdiction—the right to try previously untried
cases—only in circumstances involving suits between
states and foreign governments. All other cases the
Supreme Court adjudicates must be heard on appeal.
Wirt framed his case to the court by arguing for the
sovereignty of the Cherokees as a foreign nation. To
argue for their status as a foreign nation, Wirt used the
US government’s history of signing treaties with the
Cherokees, just as they would any other foreign nation, as evidence that they held sovereignty over their
own governmental structure and controlled their own
lands. Additionally, Wirt contested Georgia’s actions
by pointing to the supremacy clause of the Constitution, which prevents states from superseding national
laws and treaties.
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Marshall’s interpretation of original jurisdiction in
this case demonstrated his understanding of the limits
set by the Constitution on the court. Though Marshall
used the Cherokee Nation opinion to explore the constitutionality of several aspects of Cherokee claims to
sovereignty, the case ultimately came down to the question of whether they had standing to exercise original
jurisdiction. In addressing this issue, Marshall looks
directly to the language of the Constitution. While he
notes that, according to article 3, section 2 of the Constitution, the state of Georgia could clearly be a party
to an original jurisdiction case, he questions whether
“the Cherokees constitute a foreign state in the sense
of the constitution.” Marshall acknowledges the independence and self-governance of the Cherokees and
notes that the Cherokees are not citizens of the United
States, but instead citizens of their own nation. What
complicates their status as “foreign” nations, according to Marshall, is that “Indian territory is admitted to
compose a part of the United States.” Marshall also
points to the language contained within many treaties
between the US government and American Indians in
which native tribes had agreed “to be under the protection of the United States.” For Marshall, these pieces
of evidence indicate that, traditionally, neither the US
government nor Indian nations themselves had considered their relationship to be one between foreign nations. In making the final determination on the issue of
original jurisdiction, however, Marshall looks to article
3, section 8 of the Constitution, which gives Congress
the right to “regulate commerce with foreign nations,
and among the several states, and with the Indian
tribes.” This passage, according to the chief justice,
made a clear distinction between foreign nations and
Indian tribes by listing them separately. For Marshall,
then, the Cherokees made up a distinct nation, just not
a foreign one.
His decision to throw the case out on these grounds,
however, raised questions for the Cherokees and their
allies about the political reasons for allowing the case to
turn on a jurisdictional issue. Both the hostility of the
Jackson administration to the power of the court and
the administration’s support for Indian removal made
the Cherokee Nation case politically challenging for
Marshall to navigate. At the conclusion of his opinion,
Marshall notes that a decision favoring the Cherokees
would require the Supreme Court to control the actions
of a state. Marshall notes that the “propriety of such an
interposition by the court may be well questioned; it
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savors too much of the exercise of political power, to be
within the proper province of the judicial department.”
This statement reveals Marshall’s acute understanding that the exercise of such power was under intense
scrutiny at the time. Democrats in Congress, with the
support of Andrew Jackson, had proposed a bill that
would strip the Supreme Court of its ability to review
the constitutionality of state court decisions. Moreover,
Jackson had based much of his campaign for president
on promises to diminish federal authority and strip Indians of their remaining hold on eastern land. Knowing
the political climate and the looming threats to judicial
power, some Cherokees and their advocates accused
Marshall of avoiding a controversial decision by citing a
simple lack of constitutional authority in the Cherokee
Nation decision.
Domestic Dependent Nations
Despite the dismissal of the case on jurisdictional
grounds, Marshall did manage to include important
contributions to the definition of native nations’ sovereignty and, perhaps most significantly, defined their relationship to the federal government within the Cherokee
Nation opinion. One of the most enduring aspects of
Marshall’s decision was the demarcation of native tribes
as “domestic dependent nations.” This designation, articulated for the first time in Cherokee Nation v. State of
Georgia, persists as the legal categorization of the relationship between native tribes and the US government.
Marshall’s reasoning for creating the category of “domestic dependent nation” rested on his interpretation not
only of the physical fact of native nations residing within
US borders, but more importantly on the power dynamic
he saw operating between the United States and native
tribes. For Marshall, the United States occupied the role
of “guardian” to native nations, and while independent,
these nations could not persevere without the authority
of the United States protecting and guiding them. Marshall gave several reasons for this assessment of the relationship. He saw the acknowledgment by native tribes of
US governmental power over their interests, along with
the familial language by which they addressed the nation’s president, as signs of native deference to the supremacy of the United Sates. In an irony Marshall does
not highlight, the mere use of governmental systems and
organizations by native tribes to seek resolution of their
disputes was also evidence of their “state of pupilage.”
Finally, the inability of native nations to make territorial
or political deals with any country other than the US
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government provides for Marshall conclusive proof that
their status was dependent.
Even while initiating a new status for native tribes
on US land, Marshall also takes time in the opinion to
recognize that the court fully acknowledges the constitutional right and ability of native nations to construct
political and social systems separate from those of the
United States. The Cherokees, according to the court,
could govern their own affairs as a separate state. For
the chief justice, the decision by the Cherokees to draft
their own constitution, set up their own system of policing and adjudication, elect their own executive officials,
and even declare “peace and war” against the United
States is perfectly within their rights as an independent
“political society.” Marshall’s apparent acknowledgement of the rights held by the Cherokees indicates that
the court understood the state of Georgia to be violating these same rights. For some Cherokees, including John Ross, the Cherokee Nation opinion, though
unsuccessful, provided hope that with a suitable case
the Supreme Court could alleviate the pressure being
placed on them by the Georgia legislature.
In the end, however, John Marshall’s opinion in
Cherokee Nation v. Georgia was a decision that neither
satisfied the Cherokees, who hoped to halt Georgia’s
encroaching authority, nor the Jackson administration,
which sought a quick removal of native peoples from
southeastern lands. Marshall walked a fine political
line in the Cherokee Nation decision, acknowledging
that the Cherokees enjoyed a level of independence
over their own police powers and land use, but also establishing the precedent that American Indian nations
are distinct in their status as “domestic dependent nations” to the United States. Marshall’s categorization
left the status of native sovereignty legally ambiguous.
The most poignant issue for the Cherokees, however,
was that the chief justice’s exploration of these issues
in the court opinion was purely cerebral. Ultimately,
the Cherokee Nation decision did little to resolve the
question of American Indians’ legal relationship to the
individual states. Marshall dismissed the case on the
grounds that American Indian grievances could not be
brought to the court as original jurisdiction cases. That
dismissal on jurisdictional grounds consequently prevented the court from being able to consider fully the
Cherokee Nation’s claims that Georgia was illegally infringing upon its sovereignty.
Scholars continue to argue over the extent to which
Marshall’s ruling in the case was an act of political strat-
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