1980] STATE ENCROACHMENT 69 case, Justices Baldwin and Johnson argued that Indian nations possessed no sovereignty whatsoever. Justices Thompson and Story both dissented, concluding that the Cherokees did qualify as a state under the Constitution so as to bring a cause of action. They defined a state as a body of men united together to procure their mutual safety and advantage by means of their union. They governed themselves by their own authority and laws. The fact that a weak state, in order to provide for its safety, placed itself under the protection of a stronger state, did not strip the former of its sovereignty. Clearly the Cherokees qualified under these circumstances. The Court's decision in the Cherokee Nation case is perplexing. The justices split three ways in their views': Marshall-MacLean: Tribes are domestic dependent nations. Although the justices divided 2-2-2 in their perspectives of Indian sovereignty, there did emerge a clear four-justice bloc that supported some notion of tribal sovereignty. Interestingly, Justices Thompson and Story had not written their opinion at the time the decision was initially announced. The critical response to the case was so anti-Indian that Chief Justice Marshall persuaded Thompson and Story to pen their thoughts into a separate opinion so as to broaden the base of legal support for the Indian cause. The Cherokees, of course, lost the case, but the federal guardianship philosophy of Marshall was to prove an enduring benefit to the Indians in the future. Chief Justice Marshall was a consummate politician. He was convinced that had he ruled in favor of the Indians, President Jackson would have refused to enforce the Court's order. Marshall thus avoided a confrontation with the President by concluding that the Court had no jurisdiction over the case. In the true art of Marshallian activism, the Chief Justice inserted his "domestic dependent nation" and "guardianship" theories into the Court's opinion. These ideas may, have been nothing more than dicta, but it was dicta that has been both persuasive and enduring over the years. While Marshall's ideas in the Cherokee Nation case may have persisted for decades, they were not of great comfort to the 70 AMERICAN INDIAN LAW REVIEW [Vol. 8 Cherokee Indians who lost the case. The tribe needed to seek out another case by which to restrain the state of Georgia from destroying the tribal government and confiscating Indian lands. The opportunity to challenge Georgia came when the state arrested Samuel A. Worcester in the Cherokee territory in 1831. Worcester was one of several missionaries working on the Indian reservation who were arrested for violating Georgia law. The law required all non-Indian residents of the Cherokee territory to obtain a license from the governor of the state. The missionaries were convicted of failure to obtain a license and sentenced to four years of hard labor. While all of the defendants were extended pardons, Samuel Worcester and Elizur Butler refused to accept the offer. They decided to test the constitutionality of the state law and the United States Supreme Court agreed to hear the case. As in the Cherokee Nation case, the state of Georgia refused to appear. Chief Justice Marshall used Worcester v. Georgia' to reaffirm his notions of Indian sovereignty that were enunciated in the first Cherokee Nation case. Laying the foundation with a historical overview, Marshall emphasized that the Indians had their own political institutions and were engaged in self-government. The British never attempted to interfere with domestic internal affairs of the Indians. The Indians were considered to be capable of selfgovernment and were permitted this prerogative. The colonies followed a similar approach in dealing with the Indians. In analyzing the Treaty of Hopewell' between the United States and the Cherokee Nation, Marshall concluded that the treaty explicitly recognized the national character of the Cherokees and their right to self-government. There was nothing in the treaty to indicate that the Cherokees were to be stripped of their national character. "The treaties and laws of the United States [then], contemplate the Indian territory as completely separated from that of the states. . . ."'" All intercourse with the Indians was to be carried on exclusively by the government of the Union. The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves. . . . The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." In the first Cherokee Nation case, Marshall defined the relationship between the federal government and Indian nations. While conceding that the Indians possessed a degree of internal sovereignty as "domestic dependent nations," they still were to be subordinate to the overriding will of the federal government. This power of the white man over the Indians, however, was tempered by the fact that the federal government had to treat Indian tribes as a "guardian" would treat his "ward." The sovereignty of Indian nations reached full fruition in the second case, Worcester v. Georgia. Here Marshall defined the relationship between Indian nations and the various states. Focusing heavily on the right of Indians to govern themselves internally, Marshall created a shield of sovereignty by which to protect Indian tribes from state encroachments. Indian sovereignty then became multifaceted. On one hand, it was a formidable barrier to state encroachment into its affairs; on the other hand, it was a fragile legality capable of extinguishment if and when the federal government felt so inclined. Unlike Cherokee Nation v. Georgia, the Indians won their case in Worcester. The victory, however, was more illusory than real. The state of Georgia announced that it had no intention of complying with the Court's order. Politics clouded the whole affair. It was in response to this case that President Jackson allegedly stated, "John Marshall has made his decision: now let him enforce it." Jackson, indeed, took no steps to implement the Court's opinion. For years Jackson sided with the state of Georgia in its attempt to remove the Cherokees and he was not about to take up the cause of the Indians now, regardless of how embarrassing the Worcester case may have been. Ultimately, Jackson was able to persuade the governor of Georgia to pardon Worcester and Butler, who by this time were willing to accept it. Political compromise averted a constitutional crisis between the Executive and the Supreme Court. What happened to the Cherokees? Their legal victory in Worcester was short-lived. President Jackson was finally able to move the Cherokees out of Georgia to a home in the west. Their journey westward came to be known as the "Trail of Tears." Even the legal victory the Indians won in Worcester was tempered 22 72 AMERICAN INDIAN LAW REVIEW [Vol. 8 for a period of time. Mr. Justice MacLean, in a concurring opinion in Worcester, raised the question as to whether there were not some circumstances by which states could exercise power in Indian country. Previewing a policy of assimilation, MacLean reasoned that Indian self-government was undoubtedly contemplated to be of a temporary nature. If and when Indians became incapable of self-government, or their numbers were reduced so low as to lose the power of self-government, then the states could extend their laws into Indian country." MacLean's concurring opinion provided lower courts with an avenue by which to continue to review cases to determine whether the Indian tribes had lost their capacity to survive. In the long run, however, it was Marshall's ideas and not those of MacLean that prevailed. The Erosion of Tribal Sovereignty: Over the years the "domestic dependent" Indian nations under the shield of tribal sovereignty became exempt from state taxation," political regulation," and administrative intrusion," to name but a few areas of concern. The Supreme Court thus initially erected a protective barrier insulating Indian nations from hostile state governments. The difficulties confronting Indian-state relations, however, have grown, not evaporated, with time. Tribal fears of state intrusion have been real and not merely figments of the Indian imagination. The quest for Indian land, the lack of understanding by both whites and Indians of one another's cultural differences, jealousies over Indian exemptions from state laws and regulations, racial discrimination, economic competition-all contributed to a troubled relationship between the reservations and white settlements. Recent history has witnessed a drift away from the protective shield the Marshall Court bestowed upon tribal governments. The initial erosion of the doctrine of internal sovereignty appeared in 1958 in an important decision, Williams v. Lee." A superior Red Lake Band of Chippewa Indians x Minnesota. 24× NW8 20 722 (1976) 1980] STATE ENCROACHMENT 73 court in the state of Arizona attempted to exercise civil jurisdietion over a case in which a non-Indian sought to collect an overdue debt for goods he had sold to an Indian couple on the Navajo Reservation. Since the Navajo tribe had its own tribal court system in operation, the Supreme Court held that the state of Arizona could not extend its jurisdiction onto the Indian reservation. "There can be no doubt," the Court reasoned, "that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservations' affairs and hence would infringe on the right of the Indians to govern themselves.' The key question here is whether in the absence of congressional legislation, the state intrusion would infringe upon the right of the tribe to govern itself (self-government). If it does, the protective shield remains in place. But if it does not, it may be permissible for the state to extend its laws onto the reservation. Williams v. Lee was a departure from the Worcester decision; under the Worcester decision, the protective buffer was high and almost impregnable. Under Williams, however, if the state intrusion did not infringe upon tribal self-government, the state might be able to extend its jurisdiction onto the reservation. A few years later the Supreme Court formally conceded that its approach to tribal sovereignty was changing. Justice Frankfurter announced that the general notion of John Marshall in Worcester that state law cannot extend onto the reservation had yielded under closer analysis." In 1973 the Court went a step farther in its erosion of tribal sovereignty. In McClanahan v. Arizona Tax Commission,' Arizona attempted to apply its state income tax to the wages of a Navajo Indian whose entire income was derived from within the Navajo Reservation. In resolving this issue in favor of the Indian complainant, the Supreme Court indicated that there was a clear trend away from the idea of Indian sovereignty. The concept of sovereignty was to be used only as a "backdrop" against which applicable treaties and statutes must be read." The Court then proceeded to talk in terms of "federal preemption.” The question was not so much one of tribal sovereignty but whether the treaties, statutes, and tribal laws had given rise to a “preemption" of the field so as to preclude state intrusions into Indian country. Today 17. Id. at 223. 18. Organized Village of Kake v. Egan, 369 U.S. 60, 72 (1962). |