Federalism, Indian Rights, and the Genius of Marshall

Federalism, Indian Rights, and the Genius of Marshall

by Yili Yao -
Number of replies: 0

            The Marshall Trilogy is not only the first compilation of case law concerning American Indians in the United States, but also a brilliant series of legal and political maneuvering that attempted to clarify constitutional questions of federalism, Indian rights, and separation of powers—questions that are valid as ever today.

            Chief Justice John Marshall, the last Federalist judge in a political era dominated by Democrats who advocated limited government and states’ rights, reiterated in his Trilogy the supremacy of federal power over states. In Johnson v. M'Intosh (1823),Marshall shrewdly states that the federal government is the sole agent who can purchase Indian land. He uses an imperialist, arguably racist, rationale that radical title of the discovery doctrine trumps aboriginal title. Always obsequious, Marshall ensured that the opinion pleased the common people who wished to advance westward by codifying the US’s exclusive right to extinguish the Indians’ right of occupancy. In practical matters, the decision simplified life for Indian tribes, who then only had to confront the federal government, not states or private citizens, in matters of land alienation. But implicitly it seems that Marshall felt his primary duty was to strengthen the federal government. Making the federal government a monopsony certainly achieved that goal; its popular reasoning was merely a means to that political end.

            In the epic Worcester v. Georgia (1832) decision, Marshall once again reaffirmed the supremacy of the federal government by invalidating a Georgia law that criminalized the presence of non-Indians on Indian lands without a license. His reasoning relied on the idea that the Indians were a special type of nation. In defeating Great Britain, the US inherited the right to address the Indian nation to the exclusion of all other foreign powers. Therefore states could not make laws affecting Indian country. Marshall’s opinion has parallels to the Indian Commerce Clause, which enumerates Congress’s power to regulate commerce with the Indian tribes. The existence of that enumerated power means that Congress’s power is supreme over that of the states, as Marshall would agree. But most importantly, Marshall’s genius prevented a constitutional crisis. President Andrew Jackson, a staunch Democrat and supporter of Indian relocation, was forced by Worcester to pressure the Governor of Georgia to pardon Worcester. In effect Jackson became a Federalist, the enemy of his party, by exercising a strong executive authority to remove the Indians cross the Mississippi and later suppress states’ movements to nullify federal tariffs (Fletcher 7). Thus in authoring Worcester, Marshall in a stroke of genius made Jackson ignore a decision he hated. But within that resistance, Jackson inadvertently accomplished the true desire of Marshall—a strong central government.

            One takeaway from the Marshall Trilogy is that the end result was favorable to Indians. After all, Worcester established that they were not just “domestic dependent nations”1: “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial […]”2 However, it can be debated that Marshall merely wielded the plight of Indians as tool to inflate federal power. That position finds merit in modern history, where the rights of Indians have greatly diminished (Fletcher 8). It is no coincidence that today the federal government is stronger, bigger, and more expansive than ever.


1. Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1 (1831)

2. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)