Crim429/FNST429
Indigenous Peoples and
International Law:
Royal Proclamation, Marshall Decisions
The Royal Proclamation 1763
The Marshall Decisions
Johnson
v
M’Intosh
1823
Johnson v M’Intosh 1823
Johnson
M’Intosh
• Piankeshaw Indians held
title to the land
• RP may have expressed the
will of the King, but Indians
not British citizens
• Colonies had govts,
therefore Brit law did not
affect him
• Virginia law passed after the
purchase
• Indians still living in a “state
of nature”
• Law of Nations denies
Indian right to sovereignty
• “Discovery” is the source of
title; only one sovereign
• Piankeshaw Indians may
once have been sovereign,
but no longer; “perpetual
inhabitants” with
“diminished rights”
Johnson v M’Intosh 1823
• “Is it within the power of the Indians to give, and of
private individuals to receive, a title which can be
sustained in the Courts of this country?”
• “Doctrine
Doctrine of discovery
discovery” does not in itself bestow
sovereignty; it was a mutual agreement among nations
• Indians had title as “occupants,” but right to sovereignty is
a diminished right; can’t “own” land; only use/occupy
• Discovery gave discoverer right to negotiate and to
extinguish because to leave the land to the Indians was to
leave it a wilderness.
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The Marshall Decisions
Cherokee Nation
v
Georgia
1831
Cherokee Nation v Georgia 1831
• The Decision:
– While the Cherokee may once have been an
independent nation signing treaties, they lost it, having
gone from “protection”
protection to “dependence”
dependence
– Now surrounded by the US; another country coming in
would be an invasion
– Cherokee now a “domestic dependent nation.” Relation
to the US “resembles that of a ward to his guardian.”
– “If it be true that the Cherokee Nation have rights, this
is not the tribunal in which those rights are to be
asserted.”
Cherokee Nation v Georgia 1831
• The question: Is the Cherokee Nation a foreign state in the
sense in which that term is used in the Constitution?
• Court splits into three factions:
– Cherokee are sovereign
so ereign autonomous
a tonomo s nations under
nder the
“protection” of the United States
– Cherokee are “so low in the grade of organized society”
that it is ridiculous to speak of them as a nation on a par
with the US
– Because legislation elsewhere distinguishes between
“foreign states” and “Indian Nations,” the two must be
different
The Marshall Decisions
Worcester
v
Georgia
1832
Worcester v Georgia 1832
• Doctrine of discovery again. An agreement between
nations to avoid conflict; gave title against other European
governments which might be consummated by possession,
g to negotiate.
g
i.e.,, ggave right
• Cherokee had signed treaties; Georgia had no right to make
laws that over-rode agreements between Cherokee and US
• Cherokee had rights of “possession, use and occupancy”
but no sovereignty; had agreed to be under the “protection”
of the US. Only US could create laws re the Cherokee
• Cherokee thrilled, but not for long
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