The Cherokee Cases
Like the High Court of Australia in Mabo, Chief Justice Marshall refused to consider the 'act of state' by which sovereignty was acquired by the British over the lands of the Americas, stating that although the 'pretension' of converting discovery of inhabited country into a form of title was an extravagant one, 'conquest gives a title which the courts of the conqueror cannot deny'. (Johnson v M'Intosh 21 US (Wheat.) 543 (1823), pp 588, 591) There was some dissent among Chief Justice Marshall's peers who saw the Indian nations as foreign and independent. (Fletcher v Peck 10 US (6 Cranch) 87 (1810), p146 per Johnson dissenting; Cherokee Nation v Georgia 30 US (5 Pet) 1 (1831) p59, per Thompson J, dissenting) Nevertheless, the approach of the Chief Justice became the accepted legal approach in Indigenous rights law the world over.
Chief Justice Marshall pursued the idea of a diminished or domestic sovereignty, which recognised that the Cherokee, with other Indian nations, were 'distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.' (Worcester v Georgia 31 US (6 Pet) 515 (1832), 557)
Chief Justice Marshall pursued the idea of a diminished or domestic sovereignty, which recognised that the Cherokee, with other Indian nations, were 'distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.' (Worcester v Georgia 31 US (6 Pet) 515 (1832), 557)
Keywords: act of state, Cherokee cases, Cherokee Nation v Georgia (1831), Fletcher v Peck (1810), indigenous people, International Court Case, Johnson v Mc Intosh (1823), Marshall, Chief Justice, sovereignty, United States of America, Worcester v Georgia (1832), 1810-1832
Author: Strelein, Lisa