Moving along...

Okay. So that case below, Johnson v. McIntosh - is the most important, critical case in Native American law... why? Because it set the precedent. The themes that Chief Justice Marshall set down back in that case are the themes that pervade all of Indian law today. The 3 main points?

1. Congress exercise plenary power (absolute, unlimited power) over Indian affairs.
2. Indians retain sovereign, but diminished, inherent power over their internal affairs and reservation territory.
3. The US possesses a trust responsibility (kind of like a guardianship) toward indian tribes.

I would read that case over and over because it explains the mindset and the foundation for everything that is done from that point on.

Justice Marshall avoided the 2 logical extremes here. What were his other choices? He could have found that "discovery" erased all indian title, and that the indians were shit out of luck, and had no rights whatsoever. But he didn't want to do that. That would have been ABSOLUTELY unfair to the indians, and he had some sense of fairness. He had to work with the system. The other decision he could have made was that indians had full power over their lands, and that was not an option, either, because it would have blown everything out of the water for the United States up to that point. The colonists would never have settled for that, and it would have made the Supreme Court useless since nobody would have obeyed them anyhow. And the Supreme Court, by the constitution, is the supreme law of the land - a THIRD of the power in the US. The other 2/3 are the exective branch (president) and legislative branch (congress and the house of representatives).

So Marshall struck the best compromise he COULD, giving Indians some rights, but diminished ones.

And while this was a loss in some ways for the indians, it also did protect them in other ways. Think about it. If the settlers could go in and buy/cheat/steal/extort/coerce the indians into selling their lands, they would have stolen a lot more land a lot earlier. This told everyone in the US that the Indians could only sell their land with permission from the Feds... so don't bother trying to gyp them, because you are just gonna lose the land. The US won't have your back.

So it wasn't all bad, considering the circumstances and the times.