Neither Settler nor Native: The Making and Unmaking of Permanent Minorities

by Mahmood Mamdani

In an opinion written by Marshall, the court ruled that the Cherokee were not a foreign nation and therefore could not bring suit against the United States in federal courts. Rather, the Cherokee were a domestic dependent nation. The justices split three ways. One, a group of dissenters argued that the Cherokee were indeed a foreign nation, though a defeated one. A second group joined the majority but in concurring opinions argued that the Cherokee were a conquered people with no status as a nation at all, either foreign or domestic.13 Each point of view augured a different political future for the Indian. A defeated foreign nation might one day regain independence. A conquered people who had lost their nationhood could be integrated into the conquering society, as individuals but not as a group. It would never be independent, and its members, subject to state law, might or might not enjoy political and social equality. A domestic dependent nation would be a part of the United States but also separate, either as an internal colony, which is what happened, or with some novel status not contemplated by the Constitution. The third view was formulated by Marshall.