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Marshall Law

In response to:

Hail to the Chief from the November 22, 2018 issue

To the Editors:

Jed Rakoff’s interesting review [“Hail to the Chief,” NYR, November 22, 2018] of Joel Richard Paul’s new biography of John Marshall suggests that Marshall’s opinion in Cherokee Nation v. Georgia (1831) left the Indian tribes with no remedy in the federal courts for the wrongs of the government, and rather directed them to the “kindness and power” of the government itself; but that really is not a fair characterization of the opinion. Marshall’s statement, in the phrase that Rakoff says even his admirers should “cringe to repeat,” that the tribes’ relation to the government “resembles that of a ward to his guardian,” is the foundation of the modern doctrine of the federal trust relationship toward Indian tribes that has finally (though admittedly, nearly a century and a half after Marshall conceived of the concept) been found to give rise, in certain circumstances, at least, to a cause of action for damages against the government when it breaches that trust.

A year after the Cherokee opinion, after Georgia prosecuted a preacher named Samuel Worcester for entering Cherokee land without the state’s permission, Marshall had another opportunity to opine on the status of the Indians, and in terms that have been cited hundreds of times since then, wrote in Worcester v. Georgia (1832) that “the Cherokee nation, then, is a distinct community occupying its own territory in which the laws of Georgia can have no force.” That passage is the basis for what is today the well-established and vitally important doctrine of tribal immunity from state laws, a crucial component of tribal sovereignty.

While it is true that, as a practical matter, Marshall’s decisions were of little help to the Cherokee, especially in light of President Jackson’s fervent determination to move the eastern tribes to the Indian territory (now the state of Oklahoma), the enduring authority of his conceptual view of the relationship among the United States, the states, and the Indian tribes cannot be gainsaid. Marshall singlehandedly fashioned several of the most critical underpinnings of the field of federal Indian law.

Richard W. Hughes
Rothstein Donatelli LLP
Santa Fe, New Mexico

Jed S. Rakoff replies:

As a leading Indian law attorney, Mr. Hughes is naturally pleased that some of Marshall’s statements ultimately proved helpful to the Indians—though “admittedly, nearly a century and a half” after huge damage had been done. But the sad fact is that in Cherokee Nation v. Georgia, Marshall, instead of recognizing full Indian sovereignty, decreed that the Cherokee Nation should be wards of the federal executive, well knowing what that would mean when the Great White Father was Andrew Jackson. And it was only when the plaintiff was a white Protestant minister, rather than a native American, that Marshall, in Worcester v. Georgia, felt free to utter the words that, again much later, became helpful to Indians themselves. As Professor Paul Finkelman notes in his excellent new book, Supreme Injustice (2018), “Marshall’s years on the court also coincided with a relentless push to remove Indians from the eastern part of the United States…. Marshall’s decisions in [Cherokee Nation and Worcester] provided the legal basis for taking all land from Indians.” The fact that some of Marshall’s words were much later put to good use cannot erase the immediate practical effect of his Indian decisions, which ranged from ineffectual to devastating.