textual analysis

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Johnson v. M’Intosh, 2

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U.S. 543 (1823):
The Illinois and Piankeshaw tribes sold land to Joshua Johnson and Thomas Graham, both of whom were British colonial subjects, in 1773 and 1775 (before U.S. independence). In 1818, William M’Intosh, a U.S. citizen, purchased from the United States some of the land claimed by Johnson’s heirs (his son and grandson). Who had rights to the land?

Majority Opinion by Chief Justice John Marshall: “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… Its vast extent offered an
ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary…to establish a principle, which all should acknowledge as the law by which the right of acquisition…should be regulated…. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made.”

“The rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will…was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”

“The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.”

“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…. Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them…. The tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence…. Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded.”

“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts.”

“By the treaties concluded
between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity.”

Cherokee Nation v. Georgia, 30 U.S. 1 (1831):
In 1828-29, Georgia passed laws incorporating Cherokee territories into Georgia state counties, extending state authority over these territories, and nullifying Cherokee laws, despite the existence of treaties between the United States and the Cherokee that provided for Cherokee sovereignty and self-government. Did Georgia have the power to do this and, if not, could the Cherokee seek a remedy from the Supreme Court?

Majority Opinion by Chief Justice John Marshall: “If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made.”

“The third article of the constitution describes the extent of the judicial power. The second section closes an enumeration of the cases to which it is extended, with ‘controversies’ ‘between a state or the citizens thereof, and foreign states, citizens, or subjects.’ A subsequent clause of the same section gives the supreme court original jurisdiction in all cases in which a state shall be a party. The party defendant may then unquestionably be sued in this court. May the plaintiff sue in it? Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution?”

“Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They 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…. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.”

“Considerable aid is furnished by that clause in the eighth section of the third article; which empowers congress to ‘regulate commerce with foreign nations, and among the several states, and with the Indian tribes….’ In this clause they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the several states composing the union.”

“An Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States.”

Worcester v. Georgia, 31 U.S. 515 (1832):
In 1829-30 Georgia passed laws restricting Cherokee authority over land claimed by the Cherokee and restricting white residency on land occupied by the Cherokee without a state license. After he was convicted of residing within the Cherokee nation without a license and sentenced to four years of imprisonment with hard labor, Samuel Worcester, a Christian white missionary, appealed. Was Georgia’s law unconstitutional?

Majority Opinion by Chief Justice John Marshall: “Our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers.”

“The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country…. The extinguishment of the British power in their neighbourhood, and the establishment of that of the United States in its place, led naturally to the declaration, on the part of the Cherokees, that they were under the protection of the United States…. This relation was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.”

“From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries.”

“In 1819, congress passed an act for promoting those humane designs of civilizing the neighbouring Indians…. It enacts, ‘that, for the purpose of providing against the further decline and final extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the president of the United States…is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent, to employ capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing and arithmetic….’ This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists.”

“The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union.”

“Our existing constitution…confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians.”

“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…. The very term ‘nation,’ so generally applied to them, means ‘a people distinct from others.’ The constitution, by declaring treaties already made, as well as those to be made, as the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties.”

“The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.”

“The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.”

U.S. v. Rogers, 45 U.S. 567 (1846):
William Rogers was accused and convicted by the United States of murdering Jacob Nicholson in “Indian country.” Both were classified as white, but Rogers claimed to have been incorporated into the Cherokee tribe, married a Cherokee woman, and had children with her. He also claimed that Nicholson had been incorporated into the Cherokee tribe and married a Cherokee woman. According to Rogers, U.S. law stated that crimes committed by Indians against one another were under the jurisdiction of Indian, not U.S., law. Before the case reached the Supreme Court, Rogers and his cellmate, a fugitive slave, escaped from jail. While attempting to return to Indian country, Rogers drowned, but the Supreme Court did not learn about this before it decided the case. Could Rogers be convicted under U.S. law?

Majority Opinion by Chief Justice Roger Taney: “The country in which the crime is charged to have been committed is a part of the territory of the United States, and not within
in the limits of any particular State. It is true that it is occupied by the tribe of Cherokee Indians. But it has been assigned to them by the United States…and they hold and occupy it with the assent of the United States, and under their authority. The native tribes who were found on this continent at the time of its discovery have never been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied. On the contrary, the whole continent was divided and parcelled out, and granted by the governments of Europe as if it had been vacant and unoccupied land, and the Indians continually held to be, and treated as, subject to their dominion and control.”

“It would be useless at this day to inquire whether the principle thus adopted is just or not; or to speak of the manner in which the power claimed was in many instances exercised. It is due to the United States, however, to say, that while they have maintained the doctrines upon this subject which had been previously established by other nations, and insisted upon the same powers and dominion within their territory, yet, from the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavoured by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices.”

“The Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offence committed there, no matter whether the offender be a white man or an Indian. Consequently, the fact that Rogers had become a member of the tribe of Cherokees is no objection to the jurisdiction of the court.”

“The prisoner, if found guilty, is undoubtedly liable to punishment, unless he comes within the exception contained in the proviso, which is, that the provisions of that section ‘shall not extend to crimes committed by one Indian against the person or property of another Indian.’ And we think it very clear, that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian…. He may by such adoption become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages. Yet he is not an Indian; and the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally,–of the family of Indians; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs. And it would perhaps he found difficult to preserve peace among them, if white men of every description might at pleasure settle among them, and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United States, and claim to be treated by the government and its officers as if they were Indians born. It can hardly be supposed that Congress intended to grant such exemptions, especially to men of that class who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian country.”

“Whatever obligations the prisoner may have taken upon himself by becoming a Cherokee by adoption, his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and therefore not within the exception in the act of Congress.”

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ESW

Textual Analysis Assignment Instructions, History 470

Pick one of the Supreme Court decisions to analyze from either “SCOTUS excerpts re Native Americans pre CW” or “SCOTUS excerpts re slavery shorter.” If you would like, you may also chose something from “Longer version of SCOTUS excerpts re slavery.” Each of the excerpts is a
primary source, a source from the past that historians use to construct histories, which are secondary sources.

For your chosen source, address the following questions in a short, analytical paper. Your paper constitutes a
textual analysis, one of the main modes of analysis engaged in by students in the Humanities.

Your paper should be 500-600 words, double-spaced in 12-point font. It should take the form of an essay, not a series of statements or answers to the questions. You do not need to treat the topics in this order.

· What source are you analyzing?

· What is the content of the source? What seems to be the source’s main point?

· Who wrote or produced the source? How might the identity of the author affect what the source says or communicates?

· When did the author write or produce the source? What is the larger context for that time period, and how might the historical period in which the source was produced affect what the source says? Here you can draw from class lectures and readings. You do not need to do additional research.

· What particular words or phrases seem especially revealing or important? THE ANSWER TO THIS QUESTION SHOULD TAKE UP THE MAJORITY OF YOUR SHORT ESSAY. Analyze several words or phrases that point to larger meanings or import.
Explain the significance of the words or phrases you have chosen.

· What impact do you think this Supreme Court decision might have had? How did it help create identities or hierarchies in the US?

· What can you learn about the larger context in which the source was produced? How does it reflect the development of American culture?