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THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835
position.108 One position advocated the forceful dispossession of Indians,
in part because of their "savage" or "primitive" nature; the other ad-
vocated the "civilizing" of tribes so that they could become assimilated
into white culture and become useful republican citizens. The positions
were, of course, two sides of the same coin: they both started with the
assumption that Indians were different (primitive, childlike, savage) and
that their differentness could not be tolerated. While the positions pro-
voked sharp differences of policy and, as we shall see, precipitated con-
flict in the Court's Indian cases, they functioned to exclude from discourse
a third ideological point of view, that of cultural relativism. The idea that
Indians in America should be allowed to perpetuate a radically different
cultural heritage from that of white settlers, and at the same time be treated
as human beings having natural rights to autonomy and respect, was not
seriously entertained at the time of the Marshall Court. Only a diluted
version of that idea was entertained, manifested in the theory that Indian
tribes were wards of the federal government and should, because of their
cultural differentness, be forcibly separated from white society. That the-
ory was subsequently to provide the principal justification for the estab-
lishment of federal Indian reservations, which benan in earnest in the
i86os.l()lj
The first Marshall Court cases in which the rights of Indian tribes
were considered reflected the early patterns of Indian-white interchange
in America. They involved land disputes between whites in which one of
the disputing parties had acquired title to the land from an Indian tribe.110
In Fletcher v. Peck, for example, the state of Georgia had granted a
portion of its land to nonresident land companies even though Indians
remained in possession of, and theoretically in ownership of. the land.
Luther Martin, in arguing Fletcher for a member of one of the land
companies, confronted the question of the Indian title. "What is the
Indian title?" he asked. "It is a mere occupancy for the purpose of
hunting. It is not like our tenures; they have no idea of a title to the soil
itself. It is overrun by them, rather than inhabited. It is not a true and
legal possession." The Indian title, Martin claimed, was "a mere privi-
r
108 These two positions did not, of
course, exhaust the responses of nine-
teenth-century white Americans to the
"Indian question." Within the com-
munity of persons who adhered to the
"civilize" position there was debate
about whether "civilization" could
take place without removal, or whether
the two responses were linked. And
within the white missionary community
there were those who believed that the
Indian tribes could become "civili/.cd"
706
and Christianized and at the same time
retain their cultural identity as a nation.
See McLoughlin, Chcrokees, 335-352.
w> See generally G. Harmon, Sixty
Years of Indian Affairs (2d cd.. 1969);
F. Prucha, ed.. The Indians in Ameri-
can Historv (1971).
110 See." e.g., Fletcher v. Peck, 6
Cranch 87 (1810); Preston v. Browner.
I Wheat. 115 (iSi6); Danlorth's Les-
see v. Thomas, i Wheat, iss (iSi6).
Chapter X: Natural Law and Racial Minorities
lege which does not affect the allodial right."111 Marshall, for the Court,
appeared to accept this argument. "It was doubted," he said, "whether
a state can be seised in fee of lands, subject to the Indian title." But a
"majority of the court" had concluded "that the nature of the Indian title
... is not such as to be absolutely repugnant to seisin in fee on the part
of the state.""2 Johnson, in his concurrence, disagreed. The Indians in
Georgia, he maintained, were "an independent people" with "an abso-
lute right of soil." No "other nation can be said to have an interest in
[their land]."113 He was later to abandon that position.
New Jersey v. Wilson,'u discussed in Chapter IX, did little to clarify
the status of Indian titles to land, although an Indian title was at the heart
of the case. As we have seen, in Wilson the colony of New Jersey, in a
1758 statute ratifying an agreement between colonial commissioners and
the Delaware tribe, had granted the Delawares a tract of land and perpetual
immunity from taxation of that land in exchange for cession of Delaware
claims to large portions of the southern half of the colony. The Delawares,
as Marshall put it for the Court, "continued in peaceable possession of
the lands thus conveyed to them" until 1801. when they decided to move
to Stockbridge, New York, and "obtained an act of the legislature of
New Jersey authorizing a sale of their land."ll? The land was sold two
years later by state commissioners to a group of whites, and in 1804 the
New Jersey legislature repealed the 1758 statute and assessed the land for
taxation. The white buyers challenged the constitutionality of the 1804
repeal on the ground that it violated the Contract Clause, and Marshall
held that the 1804 statute was invalid. The principal significance of the
Wilson case was, as previously noted, Marshall's finding that a perpetual
tax exemption granted before the United States finally came into being,
and well before the framing of the Contract Clause, was nonetheless a
"contract" for constitutional purposes.
There was. however, another issue implicitly posed by New Jersey
v. Wilson: what was the status of the Indian title? The Delawares' original
claims to New Jersey land would have been regarded, Fletcher suggested,
as mere rights of possession, subject to being obliterated by the colony
in which the land existed. But the New Jersey colonial legislature had,
in 1758, formally granted the Delawares land. Was the title created by
that grant more than a "mere occupancy"? Marshall's language in Wilson
suggested that it was. The land had "been sold," he said, "with the
assent of the state, with all its privileges and immunities." The white
purchasers "succeed[ed] with the assent of the state, to all the rights of
the Indians." And the privilege of exemption from taxation, while "an-
111 6 Cranch at 121. I 23.
112 Ibid., 142-43.
111 Ibid., 147.
"•> 7 Cranch 164 (1812).
11-s Ibid., 166.
707
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