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My friend Jonathan von Ranson, of Wendell asks about the history of litigating Native American Treaty Rights before the Supreme Court, and looks for a few significant cases to refer to for further study.
Native Nations have indeed taken cases to the Supreme Court, as have individual Native Americans, testing the validity of the US Government’s actions in extinguishing their clearly defined rights and the US government’s clearly defined responsibilities as articulated in hundreds of separate treaties with hundreds of separate Native Nations.
The history of the Supreme Court, and federal district courts’ decision making is rife with contradictions and had left many Native Nations wary of testing their treaty claims further in this venue, lest more adverse precedents get handed down to further erode the few favorable decisions that have occasionally been rendered.
Like anyone else, Native lawyers and leaders can see the political nature of the Supreme Court, which had become even more naked since the denial of a black president’s right to appoint a Supreme Court justice in the fourth year of his term, a provision not generally noticed in the US Constitution unless the Republican Party is in the majority in the Senate. How favorable is a man like Neil Gorsuch going to be toward Native Treaty Rights, which are definitely impacted by the Dakota Access Pipeline, for one example, in regards to water rights promised to the Lakota by the Fort Laramie Treaties of 1851 and 1868? Wasn’t his mother, Anne Gorsuch, finally forced out as Interior Secretary after colliding with developers to pillage US park and forest lands; after she briefly took office when the previous Secretary was given the boot for cracking a joke about “a black, two Jews, and a cripple.” Justice in America is not blind, and neither are Native litigators.
But some of the foundational Supreme Court decision in regards to Native Treaty rights came in the beginning of the 19th century, when the Court, under Chief Justice John Marshall issued a series of rulings extinguishing the Cherokee Nation’s Treaty Rights and opening the door to their forced exile to Oklahoma and the genocide of the Trail of Tears.
In a case of raw political pressure, the State of Georgia demanded that the Cherokee, one of the five so-called Civilized Tribes, (who had adopted institutions like court systems of their own, schools and colleges, and had developed many other parallel institutions to the US government, and indeed, in an earlier decade, had been invited to send a representative to Congress along with other Native Nations should they wish to do so) lose title to their extensive land holdings in the state or face the militia of the State of Georgia unilaterally, if the federal government would not act.
Georgia was, like other states, laying claim to lands in the western frontier which created headaches for the federal government. The Supreme Court decisions of the mid 1800s in the Georgia cases created the conditions for a political compromise with the State of Georgia at the expense of the Cherokee (and the Choctaw) by which the Cherokee claims to their traditional and treaty guaranteed Homelands were extinguished and Georgia was persuaded to drop its land claims in the western frontier, which the federal government then assumed sovereignty over (without notifying the Comanches, the Kiowa, et al).
So the most famous of these cases include: the 1823 Johnson v. McIntosh case where Justice Marshall articulated the Doctrine of Discovery, the right claimed by colonialist European Nations to claim exclusive suzerainty over lands inhabited by Native People simply because they showed up on boats armed with muskets, cannon and gunpowder, a right inherited, Marshall asserts, by the US government from the Europeans once the Americans outfought them on the battlefield or outnegotiated them at the bargaining table.
The Doctrine of Discovery allowed Native Nations aboriginal land title only, and asserted the federal government’s power to extinguish it, by purchase or by conquest: the Native Nations did not have equal right to land ownership however they might define it; they could not treat separately with other European Nations any longer, nor could they sell their land except to the US. In
1832, Worcester v. Georgia, Chief Justice Marshall further articulated the Court’s view of the Doctrine of Discovery, and validated it (denying the Cherokee’s equal rights to land)
even though he states, “The extravagant and absurd idea, that the feeble settlements made on the seacoast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man.”
See also Cherokee Nation v Georgia
where Marshall coins the phrase that had bedeviled Native – US relations ever since that Native tribes are “dependent domestic nations” even though many had not yet been fought yet, and were destined to hand the US serious military defeats, and ignoring the pleading tone of the early Treaties signed with Native Nations whose military might the early American government feared should it again be allied with Britain or France.
Lone Wolf v. Mitchell (1906) “rewrote history with a flourish” to once again quote Vine DeLoria Jr (Behind the Trail of Broken Treaties, 1974) in relation to Native Nation, finding “that Congress had always had absolute powers over Indians and their property” and thus was free to abrogate previously ratified treaties unilaterally and at will.
Even though, in Turner v. American Baptist Missionary Union (1825) the court found:
Since the commencement of the government, treaties have been made with the Indians, and the treaty-making power has been exercised in making them. They are Treaties within the meaning of the constitution and, as such, are the supreme law of the land.”
Oh, but that was a federal district court… oh, well.&6


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