By Johnny Liberty

The Northwest Ordinance is the first full declaration of the U.S. government policy regarding the Indian nations. It was a policy developed during a couple of centuries of Indian/colonial relations and reflected the good intentions of European Common law. 

The same doctrine was embodied in the act of August 7, 1789, as one of the first declarations of the U.S. Congress under the new Constitution. 

“The utmost good faith shall always be observed toward the Indians,  their lands and property shall  never be taken from them without their consent;  and in their property rights and liberty, they shall never be invaded or disturbed…” ~ Northwest Ordinance, 1787

The Common law maxims embodied in the ordinance were in direct confrontation with the overwhelming desire to take the land from the Indians though, and forty short years later, the covetous intentions of the federal and state governments became apparent.

“The Discovery doctrine is a concept of public international law expounded by the U.S. Supreme Court in a series of decisions, most notably Johnson v. McIntosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign indigenous nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor
of colonial or post-colonial governments.” ~Johnson v. McIntosh (1823) 

Indian Removal Act & Genocide

U.S. President Andrew Jackson signed the Indian Removal Act (1830) into law. It was not overtly coercive, as it authorized the federal U.S. government to send negotiators to the Indians who would bargain for and promise to pay for Indian land if the natives chose to sell it.  In practice though, it was a disaster, and with the encouragement of powerful individuals and state governments who coveted the territories, Indian resistance to enforcing the Act was met with military force.

Cherokee Nation, Georgia & Indian Law

During those days, the Cherokee Nation held a vast area of land within the borders of Georgia state. Considered the most civilized of the tribes, the Cherokees had adopted a representational form of government and a constitution patterned after that of the United States. 

Every indication pointed to the fact that they intended to remain a sovereign nation on their ancestral territory and that they had no plans to disappear to the lands west of the Mississippi.

However, the State of Georgia was impatient to gain possession of the Cherokee’s lands and decided to proceed on its own. It arbitrarily created counties, superimposed their artificial borders over the historical Cherokee territory, and forced the foreign jurisdiction of Georgia state laws onto the Cherokee nation.

When the Cherokees attempted to redress their grievances about the matter before the U.S. Congress they were shunned, so they hired attorney William Wirt who took the issue directly to the U.S. Supreme Court. 

Chief Justice John Marshall said the court did not have jurisdiction in the case of Cherokee Nation v. Georgia (1831) on the grounds that Indians were not truly foreign nations, because they were classified separately under the Commerce Clause of the U.S. Constitution. 

He coined a new term for the occasion, “domestic, dependent nations”. He further asserted that individual Indians were in a “state of pupilage”, that is, wards of the government, and they only retained limited aspects of sovereignty through the treaties that had been signed.

Justice Smith Thompson vigorously dissented arguing that the U.S. Supreme Court did have jurisdiction. He argued that the Cherokee Nation should be considered a foreign state, an independent and sovereign nation, because the government had always dealt with the Cherokee Nation as a foreign state when entering into treaties. He did not agree with the Court’s interpretation of the commerce clause as excluding indigenous people from foreign statehood.

Justice Thompson also delineated the characteristics of a legal sovereign nation as it is still accepted in international law today. A sovereign nation must occupy a fixed territory with a population over which it exercises exclusive jurisdiction, and there must be a stable organization to administer its affairs and meet its international obligations.

The ink was hardly dry on Justice Marshall’s opinion when Samuel A. Worcester, a citizen of Vermont, was arrested by the Georgia militia for residing on Cherokee land without a license. The charges reflected the laws of the day: “…residing within the limits of the Cherokee Nation without license or permit from his excellency the Governor…”

Samuel A. Worcester was found guilty and sentenced to four years in the state penitentiary. Worcestor v. Georgia (1983) was appealed to the U.S. Supreme Court where it was argued that the Georgia law was unconstitutional and therefore void because it violated U.S. treaties and the sovereign status of the Cherokee Nation. 

In a dramatic departure from the decision in Cherokee Nation v. Georgia, the court agreed and reversed Worcester’s conviction. This time, Justice Marshall writing for the majority said: “The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the land, from time immemorial.”

Furthermore, according to Story’s Commentaries on the U.S. Constitution, “There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states.”

Law of Nations & Indian Law

Under international law and a settled doctrine under the “Law of Nations” is, that a weaker nation does not surrender its independence – its aboriginal right to self-determination and self-government – by simply associating with a stronger power, or receiving its protection.

A weaker nation, in order to provide for its security, may place itself under the protection of a more powerful state, without stripping itself of the right to govern, and consequentially, cease to be a state.

Even though the court had drastically altered its stance in Worcester v. Georgia, it was the Cherokee Nation  v. Georgia majority opinion that was ultimately favored in subsequent Indian relations – much to the detriment of those classified as “domestic, dependent nations” and “wards of the government”.

References:

1. Special thanks to Estar Holmes for writing this section Northwest Ordinance & Indian Nations.
2. Wikipedia | Northwest Ordinance1797, Act of August 7, 1789.
3. Wikipedia | Johnson v. M’Intosh (1823).
4. Wikipedia | Indian Removal Act (1830).
5. Wikipedia | Cherokee Nation v. Georgia, 30 U.S. (5 Peters) (1831) coined the term “domestic, dependent nations, Indians were “wards of the government” and only retained limited sovereignty through signed treaties.
6. Justice Thompson is but one of hundreds of dissenting U.S. Supreme Court opinions that did not prevail or become law, but were correct in its legal and moral reasoning. Majority decisions may have become the supreme law of the land from a constitutional perspective, but not necessarily a moral or legally correct decision that adheres to the intent of the founders or the U.S. Constitution; Wikipedia | U.S. Constitution, Article I, Section8 states that, Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes plainly and clearly determining that Indian tribes were separate from the federal government, the states, and foreign nations.
7. Wikipedia | Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
8. Wikipedia | Story’s Commentaries on the U.S. Constitution (1833).
9. North American News Service, Summer ‘96, p.63.

Source: Sovereign’s Handbook by Johnny Liberty (30th Anniversary Edition), p.84-87

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