Domestic Dependent Nations

The doctrine's foundational cases, decided by the Marshall Court between 1823 and 1832 and known collectively as the Marshall Trilogy, remain the interpretive bedrock on which nearly two centuries of subsequent litigation has been built. That bedrock was laid by a Chief Justice who described tribal nations as possessing a sovereignty diminished at the moment of European contact, an idea that has proven durable in the doctrine and corrosive to the nations it purports to describe. The question worth asking about federal Indian law, as with any body of doctrine built on a compromised foundation, is how honestly the doctrine confronts the terms on which those protections were first established, and how stable a body of law can be when its central premises have never been renounced, only worked around. Johnson v. McIntosh, decided in 1823, is the doctrine's true origin point, and it is worth reading with more care than the single holding usually extracted from it. The case concerned competing land claims, one derived from a direct purchase from an Indian tribe, the other from a federal patent, and the Supreme Court resolved the dispute by articulating what has come to be called the Doctrine of Discovery: the principle that European nations, by the act of discovering land already inhabited by Indigenous peoples, acquired an exclusive right to extinguish the Indigenous title to that land, a title the Court described as a mere right of occupancy. Marshall's opinion is candid, more candid than most doctrine that follows it, about the fact that this rule rested on the practical necessity of accommodating the conquest that had already occurred. The opinion states plainly that the right of discovery might be opposed to natural right and to the usages of civilized nations and defends it anyway on the ground that it had become the settled law of the country and could not now be judicially disturbed. This is a rare moment in American constitutional law in which the Court acknowledges the injustice of a foundational rule in the same breath that it entrenches that rule for the future, and the acknowledgment does nothing to soften the entrenchment.

The two Cherokee cases that followed extended and complicated this framework. Cherokee Nation v. Georgia in 1831 denied the Cherokee Nation standing to sue Georgia directly in the Supreme Court as a foreign state, on the ground that tribes occupied a novel and anomalous position, that of what Marshall termed "domestic dependent nations," whose relationship to the United States he analogized to that of a ward to a guardian. That phrase, domestic dependent nation, remains the operative description of tribal status in federal law nearly two centuries later, and its persistence is worth pausing on. It is a formulation that grants tribes a status distinct from foreign nations and from states, a genuine form of sovereignty, while simultaneously subordinating that sovereignty to a guardianship relationship whose terms the guardian. Worcester v. Georgia, decided the following year, is often remembered as the more protective of the two decisions, holding that Georgia's laws had no force within Cherokee territory and that the relationship between tribes and the federal government was one the states could not unilaterally intrude upon. Worcester is genuinely significant, and it remains cited today for the proposition that tribal sovereignty predates the Constitution and survives it except were withdrawn by treaty or federal statute. But Worcester's protection was famously unenforced, President Jackson's administration proceeded with Cherokee removal regardless of the decision, and the case stands as an early and instructive example of the gap between a doctrine's formal protections and its practical enforcement, a gap that recurs throughout the subsequent history of federal Indian law.

That gap widened considerably with the doctrine's next major development; the plenary power doctrine articulated most starkly in Lone Wolf v. Hitchcock in 1903. The case held that Congress possessed plenary authority over tribal affairs and could abrogate treaty obligations to tribes unilaterally, without tribal consent and without compensable liability, a power the Court described as political. Lone Wolf converted the guardianship language of the Cherokee cases into something considerably harder-edged: an affirmative grant of nearly unchecked congressional authority to override the treaty promises the United States itself had negotiated and ratified. The allotment era that Lone Wolf enabled, in which reservation lands held communally were broken into individual parcels and the surplus opened to non-Indian settlement, dispossessed tribal nations of tens of millions of acres in the decades that followed, a policy carried out under the authority the Court had just confirmed Congress possessed without meaningful judicial check.

The twentieth century produced significant correctives to this trajectory, most notably the Indian Reorganization Act of 1934, which halted allotment and encouraged the reconstitution of tribal governments, and the self-determination era beginning in the 1970s, which shifted federal policy decisively toward supporting tribal governance. These developments matter and should not be read out of the doctrine's history. But it is important to be precise about what they changed and what they left standing. They altered federal policy and, to a real degree, the practical exercise of tribal self-governance; they did not repudiate the Doctrine of Discovery or the plenary power doctrine as a matter of constitutional law. Both remain good law today, available for a future Congress or a future Court to invoke, a fact that the current period of relatively protective federal Indian policy tends to obscure.

The instability this leaves behind was demonstrated with unusual clarity in the last several years. In McGirt v. Oklahoma in 2020, the Supreme Court held that Congress had never formally disestablished the Muscogee Creek Nation's reservation in eastern Oklahoma, meaning that the reservation, encompassing much of the city of Tulsa, remained Indian country for purposes of federal criminal jurisdiction, and the reasoning of the majority opinion extended by later lower-court and state-court applications to the reservations of several other of the Five Tribes. The decision rested on a straightforward and, in context, unusually rigorous application of ordinary statutory interpretation: a treaty promise, once made, remains binding until Congress says otherwise in unmistakably clear terms, a standard the relevant nineteenth-century statutes had never met. McGirt was celebrated, appropriately, as a significant vindication of treaty rights against nearly a century and a half of state and federal practice that had proceeded as though those reservations no longer existed.

Two years later, in Oklahoma v. Castro-Huerta, the Court substantially narrowed McGirt's practical significance, holding that the State of Oklahoma retained concurrent jurisdiction to prosecute crimes committed by non-Indians against Indian victims within Indian country, a result that required the majority to depart from the presumption, settled since Worcester, that states lack jurisdiction in Indian country absent an affirmative federal grant. The Castro-Huerta majority inverted that presumption, treating state jurisdiction as the default and federal preemption as the exception requiring demonstration, a methodological shift with implications considerably broader than the criminal jurisdiction question actually before the Court. The two decisions, McGirt and Castro-Huerta, were separated by only two years and largely overlapping personnel, and their sequence is the clearest illustration available of how contingent the doctrine's current protections remain: a rigorous vindication of treaty text in one term, followed by a methodological reversal of a presumption in tribal favor that had structured the field since 1832, in the next.

What this history suggests is that federal Indian law's current protections for tribal sovereignty, genuine and consequential as they are in specific instances like McGirt, rest on a doctrinal structure whose foundational premises, the Doctrine of Discovery's diminished tribal title and Lone Wolf's unreviewable plenary power, have never been dismantled, only left dormant during periods of more sympathetic federal policy. A body of law structured this way, fluctuates with the composition of the Court and the political commitments of the Congress and Executive in a given decade, in a way that a body of law resting on more secure foundations would not. The honest assessment of federal Indian law today is that it is currently protected to the considerable extent that ordinary statutory interpretation and specific treaty texts require, protection that is real, litigable, and has produced significant recent victories, but that remains built atop doctrines the Court has shown no inclination to overrule and every willingness to invoke when the balance of interests before it shifts. The question the field's own history poses, and that Castro-Huerta answered in the negative, is whether tribal sovereignty will ever be treated as the baseline from which departures require justification, case by case, on doctrine the Court retains full authority to narrow.

Avril Shakira Villar

Western Mindanao State University