# 21
FEDERAL GUARDIANSHIP/ WARD RELATIONSHIP WITH TRIBES IS A HOAX
AND IS WITHOUT CONSTITUTIONAL POWER
First of all, the doctrine that is behind the Federal Governments assumed role of "parent" responsibility over its "child" stems from none other then Chief Justice John Marshall, in 1832. From the horses mouth (i.e. a department of the federal government) here is the source.
a. The Doctrine Of Tribal Sovereignty
Indian governmental powers, with some exceptions, are not delegated powers granted by acts of Congress, but inherent powers of a limited sovereignty that have never been extinguished. This doctrine, first was articulated in this country by Chief Justice John Marshall, in Worcester v Georgia (1832).
The above quote is from Department of Defense, Environmental Security, Native America Briefing, December 15, 1997, Chapter III, B, 1, a.. Of great interest is what did Marshall say about all of this? Here it is.
Marshall's dicta re ward and guardian status found in Cherokee Nation v Georgia, 39 U.S. 1 (1831)
" It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations.
They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."
Marshall was and still is known for his expansive and not needed dicta in this and many other cases. Dicta is an argument or statement made during a case, or as in this case , part of a written decision that is not essential to the decision, is made freely, a voluntary assertion, or perhaps an unproved or dogmatic statement, by the officer of the court concerned. In the Worcester case, the Court struck down Georgia's statute that related to who could live in Indian country, within that states borders, because the United States had previously, by treaty, guaranteed to the tribe concerned the power to govern themselves - NOT BECAUSE OF INHERENT TRIBAL SOVEREIGNTY! Marshall's dicta was picked up by the Indian Industry members, along with other dicta and its Miss use by that group and certain officers of the various courts, repeated often enough and throughout our nation, that now some citizen and the courts think it's really the law.
The next really tragic element of this guardian/ward affair is the Constitutional basis for its presence in our Constitution! THERE IS NONE. The above doctrine established by Marshall clearly indicates his belief that the parens patria duties (the classical term for father of his country, parent of his country-as King George III claimed he possessed over the colonies . . until he lost our Revolutionary War) existed in our federal government. Or perhaps he was willing to try and hoodwink the citizens of our states into believing that somehow that kingly and sovereign duty survived through common law in our country, in his never ending struggle to increase the power of the federal government and reduce the powers of the several states.
Our past basic historical documents that both established and guide our current day union of the several Sovereign States (the Declaration of Independence, the Articles of Confederation, The Northwest Ordinance of 1787, and the current Constitution) DID NOT suggest or delegated any authority or power to the federal government that would allow them to create a federal trust that would assist federal administrators, elected and appointed governmental official (at any level) or member of the judiciary, in doing their jobs as a parent to its children or wards. Read Article III, Judicial Department (and the appropriate Amendments) of our Constitution, in fact, read all of those basic documents, you will not find such authority or power delegated
John A. Fleming
May 17, 2003