The Iron Cold of the Marshall Trilogy

Document Type

Article

Publication Date

2006

Abstract

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 constitutional common law - the opinions we now refer to as the Marshall Trilogy. These three decisions, Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, 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 house filled with an iron cold of the deepest hour.

This essay is an attempt to reexamine the Trilogy for their continuing relevance to students of modern American Indian Law. 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. The foundations of the current debates over plenary power, state authority in Indian Country, the special canon of construction for Indian treaties, implicit divestiture, the trust doctrine, the political status of Indians and Indian tribes, 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.

This essay reassesses the Trilogy using several methodologies of legal analysis, including legal history, law and literature (and mythology), and law and economics.

Comments

Work published when author not on Michigan Law faculty.

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