Janus' Home


that indigenous lands within the United States are not sovereign states, according to the Constitution, but are instead:

domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.52

It was one of the most insightful remarks ever made regarding the perception of Native Americans by Americans in their long and tortured history, and it also defined reservation law vaguely and condescendingly enough that the definition is still employed today. For the Cherokee, Marshall's decision meant that, despite that the infallibility of treaty law, the Compact of 1802 was still enforceable. Marshall backed down from the issue, writing, in an astonishing negation of the presupposed duties of the Supreme Court, "this is not the tribunal which can redress the past of reverse the future."53 Roughly a year later Marshall would, in effect, reverse this statement.

A Glimmer of Sunlight: Worcester v. Georgia

In the spring of 1831, Reverend S.A. Worcester, a missionary to the Cherokee, was arrested under a law that forbade white men from residing within the Cherokee Nation without taking an oath of allegiance to the State of Georgia. Worcester refused to take the oath and was sentenced to four years in prison.

In March of 1832, William Wirt and the Cherokee brought the case of Worcester v. Georgia to the Supreme Court. The Supreme Court, this time, did not duck the issue. Marshall would write in the majority opinion of the court that it was clear that:

the legislative power of a state, the controlling power of the Constitution and laws of the United States, the rights, if they have any, the political existence of a once and numerous people, the personal liberty of a citizen, are all involved in the subject now to be considered…this duty, however unpleasant, cannot be avoided.54


52. John Marshall, United States Supreme Court, "Cherokee Nation v. Georgia 1831," in Documents of the United States Indian Policy, 60-63.
53. Ibid.
54. John Marhsall, United States Supreme Court, "Worcester v. Georgia 1832," in Van Every, 144-145
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 |28