Supreme Court - Bibliography

by Patricia Engle (January 2004) and Edward J. Gallagher (May 2006)

Banner, Stuart.  "From Ownership to Occupancy."  How the Indians Lost Their Land: Law and Power on the Frontier.  Cambridge: Harvard UP, 2005.  150-90.

"In the early 1790s the land not yet purchased from the Indians was thought to be owned by the Indians; by the early 1820s that land was thought to be owned by the state and federal governments."  Johnson v. M'Intosh (1823), then, codified belief already in existence, that Indians occupied rather than owned their land.

Calloway, Colin G., ed.  The World Turned Upside Down: Indian Voices from Early America.  Boston:  Bedford/St. Martin's, 1994.

Of particular interest are documented speeches of Indian leaders at governors' meetings and other state or federal councils, regarding colonists' continuing encroachment upon Indian lands.

Cherokee Nation v. State of Georgia.  30 U.S. (5 Peters) 1.  U.S. Supr. Ct. 1831.  Lexis-Nexis.  23 Sep. 03.

This is the second case in the "Marshall trilogy" that together serve to define Indian political status, property rights, and sovereignty rights.  The plaintiffs here sought relief from the 1828 Georgia law and 1830 act of Congress requiring "their removal west of the Mississippi" (4), in violation of multiple federal treaties, beginning in 1808, assuring that they could remain if they "engaged in the pursuits of agricultural and civilized life" (2).  Chief Justice Marshall dismissed the case for lack of jurisdiction, finding that since the Cherokee are "not a foreign state" (12), but rather a "domestic dependent nation" (11), in the nature of a "ward to his guardian," they "cannot maintain an action in the courts of the United States" (12).  Justice Thompson's long and powerful dissent is co-signed by Justice Story.  

Cushanan, Claire.  The Supreme Court Justices: Illustrated Biographies.  1789-1993.  Washington: Washington Quarterly, 1993.

Cushanan notes that John Marshall had "uncharacteristically suggested that [Justice] Thompson produce his Cherokee Nation dissent" (95) and that Marshall's Worcester v. Ga. decision the following year accepts Thompson's reasoning.

Deloria, Vine, Jr., and David E. Wilkins.  Tribes, Treaties, and Constitutional Tribulations.  Austin: U of Texas P, 1999.

 Deloria and Wilkins examine key contradictions to the federal government's stance on Indian rights in its handling of treaties, laws, and court cases.  The argument that Indians lacked laws and government, for example, is belied by Benjamin Franklin's urging fellow statesmen to adapt the governmental model of the Iroquois Confederacy (13).  Justice Marshall's finding Indians to be domestic dependent nations in 1831 is belied by the fact some tribes continued to conduct treaty councils with European traders until the 1870s (9).  Under Justice Marshall's reasoning in Johnson v. M'Intosh, the Johnson title had to be legitimate because the Indians had transferred title "under the supervision of British officers prior to the Revolution" (83).

Fletcher v. Peck.  10 U.S. (6 Cranch) 87.  U.S. Supr. Ct. 1810.  Lexis-Nexis.  11 Sep. 03.

Chief Justice John Marshall ruled that England's 1763 Proclamation did not alter the state of Georgia's boundaries with respect to the "vacant lands" (29) to the west, that the Proclamation's reservation of Indian lands "appears to be a temporary arrangement" (29), and that the "nature of the Indian title . . . is not such as to be absolutely repugnant to seisin in fee on the part of the state" (30).  Justice Johnson dissented, asserting that state rights to Indian land are limited to "a right of conquest or of purchase, exclusively of all competitors within certain defined limits" (31).

Friedman, Leon, and Fred L. Israel, eds.  The Justices of the United States Supreme Court: Their Lives and Major Opinions.  Vol. 1.  New York: Chelsea, 1997.

The editors note that John Marshall's exposure of political corruption behind the Fletcher v. Peck case "resulted in the ouster of the entire Georgia legislature in the following year's election" (188) and that Marshall's "valiant attempt to apply law and reason" (196) to the removal of the Cherokee is "worthy of mention" (196).  In his defiance of the Worcester v. Ga. decision, President Jackson "thoroughly humiliated Marshall and his Court for upholding [the Cherokee's] treaty rights" (196).

Green, Shelby D.  "Specific Relief for Ancient Deprivations of Property."  Akron Law Review 36.245 (2003).  Lexis-Nexis. 19 Oct. 03.

Green argues that Johnson v. M'Intosh is "fraught with incoherence and ad hoc rationalizations."  Marshall's decision ignored "common law principles and constructed a vague theory of Indian title on the basis of doubtful premises drawn to some extent from his own perceptions of international law."

Hearing Before Committee on Indian Affairs, 107th Congress, 2nd session, on Concerns of Recent Decisions of the U.S. Supreme Court and the Indian Tribal Governments in America.   27 Feb. 02.  U.S. GPO.  23 Sep. 03.  <https://purl.access.gpo.gov/GPO/LPS20968>.

This hearing, chaired by Sen. Daniel K. Inouye, examined the trend of decisions from the Rehnquist court that serve to erode tribal sovereignty rights, first established by the Marshall Court.  Though such tribal rights had been undermined by decades of termination policies instituted by state and federal governments through the 19th and early 20th centuries, the 1934 Indian Reorganization Act and self-determination policies instituted since the 1970s demand recognition of tribal laws and government.  Guest speakers included Professors David Getches, University of Colorado, and Robert Anderson, University of Washington School of Law.  Sen. Inouye references testimony from Professor Reid Chambers establishing that the Cherokee had a higher literacy rate of any state in the union in 1830, when the Indian Removal Act was passed.

Johnson v. M'Intosh.  21 U.S.  (8 Wheaton) 543.  U.S. Supr. Ct. 1823.  Lexis-Nexis.  21 Oct. 03.

This is the first case in the "Marshall trilogy."  The dispute here centers on duplicate claims to certain property in Illinois.  Plaintiff's title was obtained through purchase directly from Piankeshaw Indians.  Defendant M'Intosh later bought the same property from the U.S. government.  In denying Johnson's claim, Chief Justice Marshall ruled that  Indians are considered "merely as occupants . . . incapable of transferring the absolute title to others" (19).  The decision includes exhaustive citation of cases and doctrines justifying discovery and conquest rights to soil.  No dissent was filed.

Kades, Eric.  "The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands."  U of Pa. Law Review 148 (Apr. 2000): 1065-1190.  

 Kades points out the many ways in which Johnson v. M'Intosh is not about law but rather constitutes a "schizophrenic legal and historical record" constructed to ensure "efficient expropriation" of Indian lands.  The facts put before the court are wrong, because the litigants' land claims did not, in fact, overlap.  The decision can only reasonably be seen as "one element of a calculated, rational, unemotional effort to obtain Indian lands at the least cost."  This effort included "an implicit exercise in eminent domain," and the process through which Indians were forced by encroaching colonists, loss of game, and spread of disease to give up their lands is "a stunning example of Hirschleifer's muscular economics."

---.  "History and Interpretation of the Great Case of Johnson v. M'Intosh."  Law and History Review 19.1 (2001): 67-116.

"Part 1 presents a detailed history of the events leading up to the Supreme Court's decision in Johnson v. M'Intosh.  Part 2 offers novel solutions to a number of puzzles in Chief Justice Marshall's somewhat obtuse and cryptic opinion. . . . Part 3 introduces a new interpretation of the purpose of the M'Intosh rule: it served as a means of expropriating Indian land at minimal cost."

Krupat, Arnold.  Ethnocriticism: Ethnography, History, and Literature.  Berkeley:  U of California P, 1992.

Krupat examines the timing of the 1830 Indian Removal Act, finding that it was not until the 1830s that "a certain story about America and about 'civilization' had become sufficiently acceptable that it could be used as ideological justification for 'expansion with honor'"(133).  Krupat appends several documents pertinent to the Removal, including Memorials the Cherokee addressed to the Senate and House in 1830, documenting their position in protest to the Act's passage.

Lengel, James H.  "The Role of International Law in the Development of Constitutional Jurisprudence in the Supreme Court: The Marshall Court and American Indians."   American Journal of Legal History 43.2 (1999): 117-32.

"This article explores the early development of constitutional principles designed to govern the relationship between the new United States and the many Indian nations that had existed on the land long before the first Europeans discovered the continent."

Lubbers, Klaus.  Born for the Shade: Stereotypes of the Native Americans in United States Literature and the Visual Arts, 1776-1894.  Amsterdam: Rodopi, 1994.

Included are excerpts from Supreme Court Justice Joseph Story's letters to his wife and son, confiding how impressed he was with the intellect and passion of Cherokee delegates he met in Philadelphia, how "disgraced" he feels as an American "for our gross violation of the public faith towards them," and how he fears the "heavy retributive justice" certain to fall back on the United States for its treatment of the Indians (65).

Newmyer, R. Kent.  John Marshall and the Heroic Age of the Supreme Court.  Baton Rouge: Louisiana State UP, 2001.

Newmyer provides a well-integrated study of Marshall's life in the context of the critical historical periods that shaped him and that he himself helped define throughout his career in public service. Marshall's Supreme Court decisions are similarly examined for both the factors influencing them and the changes they wrought.  A particular theme of the book is the personal and ideological tension between Marshall and Jefferson concerning the "meaning of the American Revolution and the nature of the new nation it brought into being" (xvi).

Prucha, Francis Paul, ed.  Documents of United States Indian Policy.  3rd ed.  Lincoln: U of Nebraska P, 2000.

This compilation includes abridged editions of key documents and speeches that established Indian policy, including the Civilization Fund Act of 1810 ("providing against the further decline and final extinction of the Indian tribes"), New Jersey Senator Frelinghuysen's 1830 speech to the Senate decrying the proposed Indian Removal Act, and the Indian Removal Act itself.

Robertson, Lindsay G.  "John Marshall as Colonial Historian: Reconsidering the Origins of the Discovery Doctrine."  Journal of Law and Politics 13 (1997): 759-77.  [see also his "Johnson v. M'Intosh: Land, Law and the Politics of Federalism, 1773-1842."  Ph.D. diss., U of Virginia, 1997]

"This essay explores the sources of the history relied upon by John Marshall as authority for the so-called Discovery Doctrine elucidated in Johnson v. M'Intosh. . . . we should not be, as John Marshall himself was not, 'insensible of the insufficiency' of the account on which the Discovery Doctrine depends."

Wallace, Anthony F.C.  Jefferson and the Indians: The Tragic Fate of the First Americans.  Cambridge: Belknap Press of the Harvard UP, 1999.

The strategy of the Jefferson administration to drive Indians into giving up lands is outlined here, to include:  moving Indians from hunting to farming, running Indian hunters into debt, bribing influential chiefs, and threatening trade embargoes or war (19).  Quotes from Jefferson himself suggest he believed the blending of races to be the route most likely to bring ultimate happiness to both Indians and whites.

Wilkinson, Charles F.  American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy.  New Haven: Yale UP, 1987.

Wilkinson examines the probable intent, limits, and ramifications of tribal sovereignty as promulgated by the Marshall trilogy, drawing heavily from Felix Cohen's interpretations in his 1942 Handbook of Federal Indian Law.

Williams, Robert A., Jr.  The American Indian in Western Legal Thought: The Discourses of Conquest.  New York: Oxford UP, 1990.

Williams summarizes and analyzes the impact and significance of the 1823 Johnson v. M'Intosh Supreme Court decision, finding, for example, that M'Intosh's "fait accompli" (308) adoption of the discovery doctrine's "Norman-derived feudal fiction" (315) greatly accelerated the settlers' "own colonizing crusade against the American Indians who remained on the North American continent" (317).

Worcester v. State of Georgia.  31 U.S. (6 Peters) 515.  U.S. Supr. Ct. 1832.  Lexis-Nexis.  23 Sep. 03.

This is the third and final case of the Marshall trilogy, appealing the conviction of two Vermont missionaries for remaining on the Cherokee land seized by the state of Georgia.  Here, Chief Justice Marshall incorporated many of the arguments from the Thompson dissent to Cherokee v. Ga. to declare the 1828 Georgia law removing the Cherokee void.  Justice Baldwin dissented on a matter pertaining to the state court's procedural handling of the case.  Justice M'Lean filed a concurring decision recognizing certain merits to Georgia's case.  Georgia refused the order to free the missionaries, who eventually obtained pardons.  President Jackson enforced removal of some 12,000 Cherokee in 1838, across the "Trail of Tears" to Oklahoma.

Wunder, John R., ed.  Native Americans and the Law: Native American Law and Colonialism, Before 1776 to 1903.  New York: Garland, 1996.

This first volume of a six-volume series that "covers the evolution of legal cultures among Native peoples from pre-1776 through . . . 1903" (viii), includes essays from Robert A. Williams, Jr., Vine Deloria, Jr., and Joseph C. Burke, among others.  Historical and legal developments examined in this volume include the application of medieval crusade discourse to conquest of the Americas and the impact of key Supreme Court decisions, such as the Cherokee cases (1831-32), Crow Dog's case (1883), and Lone Wolf v. Hitchcock (1903), on tribal sovereignty rights.