Marshall Trilogy Week 1

Culture and Law in the Marshall Trilogy

Culture and Law in the Marshall Trilogy

by Lillian Jamison-Cash -
Number of replies: 0

The Marshall Trilogy exemplifies the ways that prevalent ideologies of the time and laws/politics mutually influence each other. The Trilogy explicitly draws on racist imaginaries of Indians to further Western ideals. In turn, these cases sealed into American jurisprudence precedents for how to treat and view Indians.

In these cases, Indians were subjected to Western epistemologies and legal systems. In Johnson v. M’Intosh (1823), Chief Justice Marshall ruled that Indians could only sell land to the federal government. This indicates a number of presumptions about Indians: an image of the Indian as “wild,” “savage” and “lawless” (even though the Cherokee had their own constitution and set of laws) – and therefore inferior to whites. The case similarly imposed Western notions of property rights: that property should be individually (rather than communally) owned, and that whites were entitled to this land by virtue of the Discovery Doctrine. It seems that Johnson v. M’Intosh set the precedent for future laws like the Dawes Act (1887), which relied exclusively on Western notions of private property. The white American colonial project attempted to classify and conjure Indians as “savages” who occupied wild/vacant spaces. These two epistemologies and notions of land use did not even collide in the American court: in only one of the Trilogy’s cases was one of the parties an Indian nation.  

These notions of land use were further developed in Cherokee Nation v. Georgia. After recognizing that “The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts,” Chief Justice Marshall qualifies the Cherokee nation’s statehood as a “domestic dependent nation” against all logic, stating that “they occupy a territory to which we assert a title independent of their will… meanwhile they are in a state of pupilage.” The rhetorical reasoning for this claim is unclear in Marshall’s opinion. For him this truth of Indian inferiority was self-evident; the prevalent ideology of white Americans in 1831 had allowed him to jump to a false and racist conclusion, whereas Justice Thompson’s claim – that weaker states do not lose their sovereignty when asking for protection – is more logical.  While Worcester v. Georgia affirmed that states had no authority in Indian Country, it certainly did not negate the “state of pupilage” of Indians vis-à-vis the federal government.

Not only did these cases set the precedence for future decisions, but they informed how it was permissible for white Americans to conceive of Indians. They contributed to a modern Enlightenment corpus that designated as inferior anyone who was Other.  The Social Darwinism that informed Justice Marshall’s opinion in turn provided justification for future racist policies. The varying representations  of Indians in the Court is indicative of these changing ideologies in American culture, and how those ideologies in turn informed policy: “The Court, over the decades and centuries, imagines its Indians as was necessary to reach its holdings” (Fletcher, 19).

Perhaps this is how even the parts of Worcester that are more favorable towards Indians were either ignored or construed in later cases (Fletcher, 8).  This fits in with the various waves of thought towards Indians over time: sometimes promoting assimilation and “civilizing” (Indians can exist in society as long as we educate them) sometimes denying the right to exist (they are separate from white America by too wide a gulf of difference). They were re-characterized according to the Court’s whim and the prevalent narratives of the time: “Resymbolized as unfeeling, bloodthirsty savages who understood and respected only greater cruelty than they could inflict, the Indian peoples were successfully characterized by the federal government in a new light. No longer the impulsive, willful child,… the Indian had been recast as the malevolent ‘other’” (Fletcher, 22).