The Marshall Trilogy: How Three Supreme Court Cases Built Tribal Sovereignty

Pope Nicholas V's bull of January 1455 gave the king of Portugal license to "invade, search out, capture, vanquish, and subdue" every non-Christian people his ships could reach, and to take their lands and goods for the crown. Three hundred and sixty-eight years later, ruling on land that the Illinois and Piankeshaw nations had sold to a company of speculators in the 1770s, Chief Justice John Marshall wrote the same idea into American law. He called it discovery.

Here Marshall's three great Indian cases are read as a single argument. Johnson v. McIntosh (1823) left Native nations the right to occupy their land but not to sell it to anyone except the government. Cherokee Nation v. Georgia (1831) named them "domestic dependent nations." Worcester v. Georgia (1832) held that Georgia's laws had no force inside the Cherokee Nation, and Georgia ignored it while President Jackson made no move to enforce it. The Indian Removal Act had been law since 1830.

Around the cases stand the people who lived them: the Cherokee who wrote a constitution and printed a newspaper in their own syllabary, the missionary who went to a Georgia prison rather than swear an oath to the state, the leaders who split over the Treaty of New Echota, and the thousands forced west on the Trail of Tears. From there the doctrine travels west with the removed nations and on through the twentieth century to McGirt v. Oklahoma in 2020.

The contradiction at the heart of Marshall's opinions, a nation at once sovereign and dependent, is the foundation federal Indian law still stands on.