The Least Dangerous Branch? · Episode 13 of 13 · 20 min
The Courts of the Conqueror: How the Marshall Trilogy Legalized the Taking of Native Land
In 1823 Johnson v. M'Intosh wrote the Doctrine of Discovery into U.S. law, leaving Native nations a 'right of occupancy' the government could extinguish at will. The episode follows the full Marshall Trilogy: a collusive land-speculator suit with no Native party, the 'domestic dependent nations' ruling, and Worcester v. Georgia, which the Cherokee won six years before the Trail of Tears. The doctrine has never been overruled.
Who's who
- John Marshall+7 more episodesChief Justice who wrote all three opinions
- John Ross+2 more episodesPrincipal Chief of the Cherokee Nation who chose litigation
- William WirtFormer Attorney General who argued the Cherokee cases
- Samuel Worcester+1 more episodeMissionary convicted under Georgia law; namesake of the final case
- Andrew Jackson+7 more episodesPresident behind the Indian Removal Act of 1830
- William McIntoshLand speculator and nominal defendant in Johnson
- Joseph StoryDissenter in Cherokee Nation v. Georgia
- Smith ThompsonDissenter in Cherokee Nation v. Georgia
Where it happens
- Cherokee Nation, GeorgiaHomeland where Georgia extended its laws after gold was found
- New Echota, Georgia+2 more episodesCherokee capital
- Tongass National Forest, Alaska+1 more episodeSite of the 1955 Tee-Hit-Ton ruling
Timeline
- March 10, 1823Johnson v. M'Intosh adopts the Doctrine of Discovery.
- March 18, 1831Cherokee Nation v. Georgia calls the Cherokee a 'domestic dependent nation.'
- March 3, 1832Worcester v. Georgia holds Georgia's laws have no force in Cherokee territory.
- 1838U.S. Army removes the Cherokee; roughly 4,000 die on the Trail of Tears.
- February 7, 1955Tee-Hit-Ton ruling relies on Johnson to deny compensation in the Tongass.
- 2005City of Sherrill v. Oneida restates the Doctrine of Discovery.
Still debated
Scholars disagree on whether Marshall was a villain who dressed dispossession in erudition or a damage-limiter boxed in by existing practice. Whether Jackson 'defied' the Court is also contested, since Worcester imposed no order on him, and Trail of Tears death tolls vary by source.
Connected episodes in other series
The Fraudulent Treaty Behind the Trail of TearsAs Long as the Grass Grows · Episode 6Also features Andrew Jackson, John Marshall
The Highland Clearances and the Trail of Tears: Removal by LawEmpty the Land · Episode 2Also features Andrew Jackson, John Marshall
The Supremacy Clause: Why Every Nullification Theory Has Lost in Court for 200 YearsHomemade Sovereignty · Episode 7Also features Andrew Jackson, John Marshall
The Great MisunderstandingThe Ground Rules · Episode 6Also features John Marshall