In the early period of American colonization, there was no reference to a place called Indian country. That is because every place was Indian country. Settlers in Maine rented land from Indians. In the Dutch and English colonies, settlers purchased land from Indians, either wholesale or piecemeal.
The term Indian country was first used in King George III’s Royal Proclamation of 1763. Under the system delineated by the Crown, Indian country was territory that Indians had the right to use but over which they did not have domain. The Crown retained the title to all colonized lands occupied by Indian tribes and granted the tribes use rights, which the king could revoke at will. Because the land belonged to the Crown, Indians who wished to sell their use rights could sell only to the Crown. After the War of Independence, the United States adopted the same scheme, and to this day Indians on reservations retain only “Indian title” or “right of occupancy.” Their holdings can be dissolved by congressional action.
The original language of the Constitution makes clear that Indians are aliens in the United States. The document makes just one substantive reference to Indians. In article 1, section 8, Congress is granted power “to regulate commerce with foreign nations and among the several states, and with Indian Tribes.” Leading theorists of the early republic also understood the Indians as a foreign challenger to settlement. In Federalist 24 Alexander Hamilton described “the savage tribes on our western frontier” as natural enemies of the United States and natural allies of the British and Spanish, and he cited Indian tribes as justification for maintaining a national defense force. In Federalist 25 Hamilton reiterated his view that Indians were foreign enemies, raising the specter that Britain and Spain would join forces with Indian tribes to encircle the union from Maine to Georgia. Later arguments for the Second Amendment right to form armed militias for collective defense of the “free state” are easily understood from the perspective of settlers who feared attacks by natives perceived to be enemies of that state.
The view of Indian tribes as enemies and aliens had to be squared with the undeniable fact that Indians lived in territories claimed by the nascent United States. Indeed, U.S. law acknowledged Indians’ rights to use the soil and to move around as they pleased. Unlike chattel, Indians were free persons in law—free foreign persons, living indefinitely within the boundaries of the state.
The contradictions inherent in this system bloomed and boiled in the first decades after the U.S. founding. Ultimately it fell to the Supreme Court to bring clarity to the Indian question. In the critical cases Johnson v. M’Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832), Chief Justice John Marshall offered candid reflections on the relationship between conqueror and conquered, the role of political exigency in deciding which rights the conquered would have, and the differences between Indians and chattel. With acute honesty and rare insight, Marshall said what the authors of the Constitution would not: that conquered peoples such as the Indians should over time be integrated as equal members of the new society, adopted into the nation. But he also explained—really, rationalized—why this could not be. He pointed out that, in practice, Indians were neither citizens nor fit to exercise citizenship. He reasoned that, under the constitutional scheme, Indian tribes in the borders of the United States were best thought of as domestic dependent nations, which meant that they would be subjects of the federal government, not the states. But as the Constitution explicitly denied Indians rights, Indians would have to be wards of the state rather than citizens, subject to congressional decrees not reviewable by courts.
The first opinion, in Johnson v. M’Intosh, got to the heart of the matter: the Indians were a conquered people. Marshall explained that every bit of soil in the New World was the exclusive property of one or another European power:
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire…But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.
Next he argued that, though Indians continued to possess the title of occupancy, this was inferior to European powers’ right of domain: “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” This right was not a product of the doctrine of discovery, justification, provided by the pope in 1493, on which so much New World conquest relied. Marshall rejected the doctrine as “opposed to natural right, and to the usages of civilized nations.” But he also argued that, though the doctrine was faulty, in practice it had proven “indispensable to that system under which the country has been settled.” It was this history of settlement that had to be respected, even if it had been predicated on a false doctrine. In as unequivocal a confirmation as one is likely to come across in legal texts, Marshall concluded that politics trumps law:
Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted title to all the lands occupied by Indians, within the chartered limits of the British colonies…The title to a vast portion of the lands we now hold, originates in [British rights]. It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it.
Under such an arrangement, can one speak of Indians possessing rights? If they did, Marshall thought, these rights could not be vindicated in the courts of the United States.
In Cherokee Nation v. Georgia, Marshall further justified and elaborated on this system. He affirmed that the Cherokee were a “state…a distinct political society, separated from others, capable of managing its own affairs and governing itself.” But exactly what kind of political society was this? The Cherokee and others like them could not be “denominated foreign nations,” he argued, for they were territorially “a part of the United States,” subject to its “jurisdictional limits.” Marshall suggested that the Indians therefore “may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”
Marshall did not invent the idea of wardship; in a creative effort to make sense of the oddity of the Indian, he imported it from other areas of law. A ward, regardless of his or her age, is a child in law. A ward cannot hold or claim a property right or bring independent action in courts of the United States. Wards may have a right to reside in a particular territory, but they do so on the sufferance of its citizens and their political institutions. Thus, Marshall observed, “If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted.” As if clairvoyant, he concluded, “If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.”
Legal wardship must have seemed very sensible to white elites who viewed Indians as pupils in their tutelage. For generations, colonial and then U.S. authorities referred to Indians as their children and in turn insisted that Indians address them as “father.” Andrew Jackson, a contemporary of Marshall’s, used the parent-child metaphor during the negotiations leading to the 1817 Cherokee Treaty. In other talks, leading to the Choctaw treaty of 1820, he spoke of himself as the protector of Indian children and claimed to be the defender of “real Indians” against the very chiefs he was bribing to sign the treaty. At the same time as he disparaged the Indians as “savage bloodhounds,” he urged Congress to take the role of tribal “guardian.” Later, after Marshall’s system began to take concrete form in the reservation, the infantilization of Indians became an argument for federal “protection,” without which these survivors of genocide would surely go extinct. There must have been many who refused such paternalism. One instance appears in the record of negotiations between William Henry Harrison, then the governor of Indiana Territory, and the Shawnee chief Tecumseh. According to this report, Harrison’s interpreter instructed Tecumseh, “Your father requests you to take a chair.” “My father!” replied the chief. “The sun is my father and the earth is my mother; I will repose upon her bosom.”
In any event, the idea that Indians were children in law stuck. It was an important invention, not least because wardship served to distinguish Indians and enslaved Africans. Specifically, in Cherokee Nation, Marshall developed a legal theory in which enslaved people could be under state jurisdiction, while Indian wards were subject to the federal will. Cherokee Nation originated from an attempt by Georgia to assert control over the tribe through state law. The law in question extinguished the Cherokee as a distinct, self-governing society within its borders by eliminating official recognition of tribal membership and lands and integrating the Indians as “free persons of color.” Like blacks not enslaved, the Cherokee would be subject to the state’s white racial dictatorship. The Cherokee would be unable to vote, serve in the state militia, send their children to public schools, or serve as witnesses in court cases involving most whites. Meanwhile, per the “Cherokee codes,” the state would be able to take control of the immensely valuable Indian lands within its borders and make them available to Georgia’s white citizen farmers, plantation owners, and gold prospectors. In essence, Georgia was trying to replace federal colonial subjugation with state racial subjugation, thereby ensuring preferential access to natural resources.
The Cherokee sued, claiming that they were a foreign nation not subject to Georgia law. The court did not make a determination regarding the application of Georgia law, instead deciding that it lacked jurisdiction to hear the case. But its reasoning in reaching that conclusion was crucial. In an opinion written by Marshall, the court ruled that the Cherokee were not a foreign nation and therefore could not bring suit against the United States in federal courts. Rather, the Cherokee were a domestic dependent nation. The justices split three ways. One, a group of dissenters argued that the Cherokee were indeed a foreign nation, though a defeated one. A second group joined the majority but in concurring opinions argued that the Cherokee were a conquered people with no status as a nation at all, either foreign or domestic.
A year later, in Worcester v. Georgia, the court decided the Cherokee nation’s suit on the merits, ruling that the Georgia law was unconstitutional because only the federal government, not the states, had authority over Indian nations. More important than the direct outcome of voiding the Georgia law was Marshall’s justification, which established the legal and historical underpinnings of the federal government’s exclusive rule over Indians. Marshall made clear that tribal sovereignty—the erroneous term for Indian subjugation to Congress rather than the states—was a product of the deep colonial past. But, crucially, it was not discovery or superior civilization that granted the right of dominion. It was war.
Reflecting on the world in 1491, Marshall wrote, “America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws.” Under these circumstances, the mere fact of discovery could never be the basis of a claim to dominion:
It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the preexisting rights of its ancient possessors.
What underlay the claim of dominion was neither discovery nor civilization. Rather, might made right: “Power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend.”
Excerpt adapted from Neither Settler nor Native: The Making and Unmaking of Permanent Minorities by Mahmood Mamdani, published by Harvard University Press. Copyright © 2020 by Mahmood Mamdani. Used by permission. All rights reserved.