In the 1832 case Worcester v. Georgia, Chief Justice Marshall pointed out that "America [is] separated from Europe by a wide ocean," and noted that at the time Europeans first arrived, America "was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world." This observation is in keeping with our common sense knowledge that Indian nations and peoples existed in this hemisphere for thousands of years prior to the formation of the United States in the late 1700s.
In the 1823 ruling Johnson v. McIntosh, Marshall said, "The magnificent purchase of Louisiana was the purchase from France of a country almost entirely occupied by numerous tribes of Indians, who are in fact independent." The Great Sioux Nation and the other Plains Indian nations were living a free and independent life in the colony known as Louisiana.
Joseph Story was an Associate Justice of the U.S. Supreme Court when the Worcester and Johnson rulings were handed down. In his book "Commentaries of the Constitution of the United States," published in 1833, Story said that "the Indian tribes, inhabiting this continent at the time of its discovery, maintained a claim to the exclusive possession and occupancy of the territory within their respective limits, as sovereigns and absolute proprietors of the soil."
What's more, Story observed that the Indians "acknowledged no obedience, or allegiance, or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right of dominion, and yielded it up only when lost by the superior force of conquest, or transferred by a voluntary cession." In other words, the Indian nations were free and independent when they made treaties with the United States.
According to the Reserved Rights Doctrine, Indian nations retain all political powers and rights they have not specifically relinquished by treaty or other political agreement. Take the example of the Treaty of Ruby Valley between the United States and the Western Shoshone Nation. The Western Shoshone were free and independent when they made this treaty with the United States.
The terms "free" and "independent" describe the political identity of all the Indian peoples of the hemisphere prior to European arrival. Today, however, the United States would have us believe that there are no free and independent Indian nations existing within the geographical boundaries claimed by the United States, despite the existence of hundreds of treaties between the United State and free Indian nations from 1776 to 1871. Indeed, the entire field known as "federal Indian law" or "U.S. Indian law" is premised upon the notion that Indian "tribes" are "domestic dependent nations." This presumption arises in large part because in 1831, in the case Cherokee Nation v. Georgia, the U.S. Supreme Court said that Indian nations "may ... perhaps, be denominated domestic dependent nations."
The field known as federal Indian law would have us believe that the free and independent political heritage of Indian nations simply vanished into thin air, so to speak, because the U.S. Supreme Court wrote three magic words on paper in 1831: "domestic dependent nations." However, this presumption does not stand up to scrutiny.
Since Indian nations such as the Great Sioux Nation and the Western Shoshone Nation, to provide just two examples, were free and (as Marshall said of such nations) "in fact independent" at the time the Cherokee Nation ruling was handed down in 1831, those nations were not subject to the Supreme Court rulings of another country known as the United States of America.
Given, for example, that the Western Shoshone Nation did not forfeit or relinquish its free and independent political status when it made the Treaty of Ruby Valley with the United States, how can it be said that the Western Shoshone Nation, ever freely consented to become a "domestic dependent nation," on the basis of the Cherokee Nation ruling, or other rulings? Because the Ruby Valley Treaty was not based on conquest and was not a treaty of surrender it did not make the Western Shoshones subject to the authority of the United States, despite what the United States now wishes to assume.
The above observations explain why the Western Shoshone National Council and the Dann family are viewed by the United States as posing such a threat. Because IRA tribal councils are, in a fundamental sense, corporate entities statutorily created by the United States, pursuant to the 1934 Indian Reorganization Act, the federal government can argue that those councils did not arise on the basis of the original free and independent political existence of the Indian nations.
The Western Shoshone National Council, on the other hand, clearly and correctly understands that the political heritage of the Western Shoshone people is that of a rightfully free and independent nation that has a treaty of peace and friendship with the United States. The Western Shoshone National Council understands that the Western Shoshone Nation has a political existence that predates the United States in the Great Basin of North America by thousands of years.
It has also been argued by the U.S. Supreme Court, in Johnson v. McIntosh, that although Indian nations were originally free, sovereign, and independent in the past, the United States would pretend that "discovery" by "Christian people," had "diminished" the Indians' "rights to complete sovereignty, as independent nations." Chief Justice Marshall referred to this as "the pretension of converting the discovery of an inhabited country into conquest."
However, nine years later in Worcester, Marshall directly contradicted what the Court had said previously when he pointed out that the principle of "discovery" he had referred to in Johnson could not "annul the previous rights of those [Indians] who had not agreed to it." Because the very idea that Christian Europeans "discovered" America is a lie, it is simply an enlargement of that lie to say that the free and independent political identity of Indian nations was diminished by a "discovery" that never occurred. A "discovery" that never occurred cannot be "converted" into conquest, and reduce Indian nations to domestic dependent nations no matter how much the United States pretends otherwise.
When the 13 British colonies situated along the Atlantic seaboard of North America declared themselves free and independent states, they merely achieved a degree of political independence that our respective Native nations had already experienced for thousands of years. However, despite their newly achieved political identity as a nation, the confederated United States - through their Supreme Court or otherwise - could not, according to principles of justice, simply declare into existence a diminishment of the free and independent political status of Indian nations without Indian consent.
To get around this straightforward logic, Marshall claimed in Worcester that certain rights originate in "power, war, [and] conquest." Once such rights have been. "conceded by the world," said Marshall, those rights "can never be controverted [overturned] by those on whom they descend." Given that Indian nations and peoples have not conceded to the "rights" he said originate in power, war, and conquest, Marshall implied that we as Indian people are not part of "the world" he was referring to.
In any case, this idea that certain "rights" rooted in power, war, and conquest have descended upon us as Native peoples is a lie that the United States would very much like us to passively accept. Instead, Native leaders throughout Indian country ought to refuse to go along with the usual and accustomed idea of domestic dependent nationhood by pointing out that we have never freely consented to forfeit or relinquish our birthright as free and independent nations and peoples.