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The Iron Cold of the Marshall Trilogy

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The Iron Cold of the Marshall Trilogy View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UND Scholarly Commons (University of North Dakota) North Dakota Law Review Volume 82 Number 3 The Pedagogy of American Indian Article 2 Law 1-1-2006 The Iron Cold of the Marshall Trilogy Matthew L.M. Fletcher Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Fletcher, Matthew L.M. (2006) "The Iron Cold of the Marshall Trilogy," North Dakota Law Review: Vol. 82 : No. 3 , Article 2. Available at: https://commons.und.edu/ndlr/vol82/iss3/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. THE IRON COLD OF THE MARSHALL TRILOGY ∗ MATTHEW L.M. FLETCHER This house is old. For two hundred years a woman has risen in the iron cold of the deepest hour. —Louise Erdrich1 Students of American Indian law cannot—and should not—escape from reading the three famous opinions of Chief Justice John Marshall that expounded for the first time in the halls of the United States Supreme Court the bases for federal Indian common law—the opinions we now refer to as the “Marshall Trilogy.”2 These foundational principles resonate today,3 more than eighteen decades after the Court put them into words. These words resonate in ways that the members of the Marshall Court could not have anticipated.4 In fact, a cursory review of the holdings and obiter dicta ∗Assistant Professor, Michigan State University College of Law; Director, Indigenous Law and Policy Center; Appellate Judge, Hoopa Valley Tribe, Pokagon Band of Potawatomi Indians, and Turtle Mountain Band of Chippewa Indians; Enrolled Member, Grand Traverse Band of Ottawa and Chippewa Indians. Prepared for presentation at the University of North Dakota School of Law’s 2006 Indian Law Conference, “The Pedagogy of American Indian Law” (October 13-14, 2006). Thanks go to the North Dakota Law Review board, especially Jon Carpenter, Kara Gansmann, Craig Larson, and Liz Pendlay; the Northern Plains Indian Law Center, especially Jim Grijalva, Tahira Hashmi, B.J. Jones, Steve Light, and Kathryn Rand; and Kirsten Carlson, Kate Fort, David Getches, Greg Gagnon, Beth Kronk, Angela Riley, Kaighn Smith, David Wilkins, and Gloria Valencia-Weber for their supportive comments. As always, chi-miigwetch to Wenona Singel. 1. LOUISE ERDRICH, The Ritual, in BAPTISM OF DESIRE: POEMS, at 77 (1989) (Harper Collins 2001). 2. Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832). Professor Charles Wilkinson first described the cases as a trilogy. CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW: NATIVE SOCIETIES IN A MODERN CONSTITUTIONAL DEMOCRACY 24 (1987) [hereinafter WILKINSON, AMERICAN INDIANS]. It is debatable that these three cases form a “trilogy” at all—Johnson has little to do with the Cherokee cases, Cherokee Nation and Worcester, decided almost a decade later—but they are intertwined in the literature and do form the basis for federal Indian law. 3. See Robert T. Anderson, Criminal Jurisdiction, Tribal Courts and Public Defenders, 8 KAN. J.L. PUB. POL’Y 139, 139 (2003); David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 MINN. L. REV. 267, 273-74 (2001) (“foundations of Indian law”); Richard Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. TOL. L. REV. 617, 638 (1994); Raymond Cross, De-federalizing American Indian Commerce: Toward a New Political Economy for Indian Country, 16 HARV. J.L. & PUB. POL’Y 445, 453 (1993). 4. E.g., LINDSAY G. ROBERTSON, CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS 117-42 (2005) (arguing that Chief Justice 628 NORTH DAKOTA LAW REVIEW [VOL. 82:627 of these opinions by a modern student of American Indian law is enough to startle. These three decisions, Johnson v. M’Intosh,5 Cherokee Nation v. Georgia,6 and Worcester v. Georgia,7 written in the obtuse legalese of the day,8 identified the contours of American Indian law as they remain today in the modern era. These opinions are the house in which American Indian advocates, leaders, and policymakers rise each morning—and it is a house filled with an iron cold of the deepest hour. This essay is an attempt to reexamine the Trilogy for its continuing relevance to students of modern American Indian law. The law does not re- main stagnant. The law of the Marshall Court is no longer the only word in federal Indian law.9 But the pedagogical value of the Marshall Trilogy goes far beyond the mere holdings of the cases. That is not to say the holdings are not significant—they are. But, as Justice Baldwin wrote in Cherokee Nation, the “reasons” for the holdings are more significant than the holdings themselves.10 There are seven opinions in the Trilogy, with the three main opinions authored by Chief Justice Marshall. The arguments, concepts, and notions in these opinions resonate today, about 170 years after the last of the decisions. The argumentation of these Justices incor- porates the seeds of the entire catalog of the current doctrine making up American Indian law. The foundations of the current debates over plenary power,11 state authority in Indian Country,12 the special canon of Marshall did not envision the consequences of incorporating the Doctrine of Discovery into American constitutional law). 5. 21 U.S. 543 (1823). 6. 30 U.S. 1 (1831). 7. 31 U.S. 515 (1832). 8. Compare Worcester v. Georgia, 31 U.S. 515, 562 (1832) (“Will these powerful considerations avail the plaintiff in error? We think they will.”), with Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2769 (2006) (“For these reasons, we deny the Government’s motion to dismiss.”). 9. “Federal Indian law” is defined as “that body of law dealing with the status of the Indian tribes and their special relationship to the federal government, with all the attendant consequences for the tribes and their members, the states and their citizens, and the federal government.” WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 1 (4th ed. 2004). See generally COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 1-3 (Nell Jessup Newton et al. eds., 2005). “Federal Indian law” includes statutes, treaties, regulations, and other codified law, as well as the federal common law interpreting these statutes and the constitutional common law arising out of the Court’s application of the constitution to Indian affairs. 10. Cherokee Nation, 30 U.S. at 32 (Baldwin, J., concurring). 11. Compare United States v. Lara, 541 U.S. 193, 200 (2004) (holding that Congress has “plenary and exclusive” powers “to legislate in respect to Indian tribes”); Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v. Clark, 435 F.3d 1100, 1112-13 (9th Cir. 2006), with Lara, 541 U.S. at 224 (Thomas, J., concurring) (“The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty.”); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1 (arguing that Congress does not have plenary power to legislate in the field of Indian affairs). See generally COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra note 9, at § 5.02; Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power 2006] THE IRON COLD 629 construction for Indian treaties,13 implicit divestiture,14 the trust doctrine,15 the political status of Indians and Indian tribes,16 and others are all to be found within the Marshall Trilogy. For a new student of federal Indian law, these three cases are a microcosm of the entire course to come. It is fitting that these three cases often are the first cases confronted in the course,17 but it is somewhat disturbing to realize how little the debates have changed over the centuries. This essay reexamines the Marshall Trilogy for the pedagogical value that reading and understanding the Trilogy may have for students of federal over Foreign Affairs, 81 TEX. L. REV. 1, 80-81 (2002) (describing as “uncertain” whether the Court will continue to validate Congressional plenary power). 12. Compare Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62 (1996) (under the Indian Commerce Clause, “the States . have been divested of virtually all authority over Indian commerce and Indian tribes.”), and Rice v. Olson, 324 US 786, 789 (1945) (“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history”), with McClanahan v. State Tax Comm’n, 411 U.S. 164, 172 & n.8 (1973) (the Court relies less upon “platonic notions of Indian sovereignty” and looks more to relevant treaties and statutes in order to discern the limits of state power over Indian affairs). See generally COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra note 9, at § 6.01. 13. Compare Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999) (“[W]e interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them.”), with Chickasaw Nation v. United States, 534 U.S.
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