As Long as the Grass Grows · Episode 7 of 15 · 46 min
How the Supreme Court Made Breaking Native Treaties Legal
The United States broke nearly every treaty it ratified, and for most of that history it did so legally. The episode traces the machine: the Doctrine of Discovery imported in Johnson v. M'Intosh, the Marshall Trilogy's domestic dependent nations, and Lone Wolf v. Hitchcock in 1903, which held Congress could break any treaty at will. It steelmans the legal defense before weighing its cost.
Who's who
- John Marshall+7 more episodesChief Justice who wrote the three foundational Indian-law opinions
- Pope Nicholas V+1 more episodeIssued Dum Diversas and Romanus Pontifex
- Pope Alexander VI+1 more episodeIssued Inter Caetera dividing the Americas between Spain and Portugal
- Lone WolfKiowa chief and name plaintiff in Lone Wolf v. Hitchcock
- Ethan Allen Hitchcock+1 more episodeInterior Secretary and defendant in Lone Wolf v. Hitchcock
- David H. JeromeHeaded the commission that obtained the 1892 Jerome Agreement
- Edward Douglass WhiteJustice who wrote the unanimous Lone Wolf opinion
- Harry Blackmun+2 more episodesJustice who wrote the 1980 Sioux Nation majority
Where it happens
- Black Hills, South Dakota+4 more episodesLand whose 1877 seizure was held a compensable taking in 1980
- Kiowa-Comanche-Apache reservation, OklahomaSubject of the disputed Jerome Agreement
Timeline
- February 28, 1823Johnson v. M'Intosh holds tribes have only a right of occupancy
- March 18, 1831Cherokee Nation v. Georgia calls tribes domestic dependent nations
- March 3, 1832Worcester v. Georgia holds Georgia's laws have no force in Cherokee territory
- January 5, 1903Lone Wolf v. Hitchcock holds Congress may abrogate treaties unilaterally
- June 30, 1980United States v. Sioux Nation of Indians holds the Black Hills seizure a taking
- March 30, 2023The Vatican formally repudiates the Doctrine of Discovery
Still debated
Scholars dispute whether plenary power rests on thin constitutional ground, whether the trust doctrine is a shield or a fiction, and whether the discovery doctrine can be removed from U.S. law. Historians also disagree on how well-intentioned allotment policy was.
← PreviousThe Fraudulent Treaty Behind the Trail of TearsNext →How Bureaucracy and Gold Broke the Great Plains Treaties
Connected episodes in other series
The Great MisunderstandingThe Ground Rules · Episode 6Also features John Marshall
The Courts of the Conqueror: How the Marshall Trilogy Legalized the Taking of Native LandThe Least Dangerous Branch? · Episode 13Also features John Marshall
The Highland Clearances and the Trail of Tears: Removal by LawEmpty the Land · Episode 2Also features John Marshall
The Supremacy Clause: Why Every Nullification Theory Has Lost in Court for 200 YearsHomemade Sovereignty · Episode 7Also features John Marshall