Colonialism, Constitutionalism, Law

In his journal entry “Marshalling Past and Present:  Colonialism, Constitutionalism, and Interpretation in Federal Indian Law” Philip P. Frickey argues that Federal Indian law does not serve the broad interests of sovereign Indian nations implied in early Treaties.  Furthermore, he champions the rejection of colonialism, the flexible interpretation of documents of positive laws, and the supporting role of Congress in fostering a sovereign-facing, government-to-government relationship between the tribes and the U.S. Federal government.  (428)  Frickey turns to ‘The Cherokee Cases’ and, specifically, Justice John Marshall’s majority opinions in these landmark 19th century Supreme Court decisions to propose a return to a “clear-statement canon” (413) as a basis for Federal Indian law.  Frickey argues that this will advance a “complex, institutionally sensitive interpretive scheme” of justice relating to sovereign Indian nations as implied by the ‘spirit’ of Treaties between governments.  (417)

In the 1823 case Johnson v. McIntosh the Supreme Court found that U.S. title pre-empted an earlier sale of land title by the Cherokee Nation.  Frickey notes that while the decision was decidedly unfavorable with regards to the sovereignty of Indian nations, it nevertheless established for the first time a colonialist interpretation versus a constitutionalist interpretation of jurisprudence as it relates to the government-to-government relationship between Indian nations and the U.S.  Marshall would later use this distinction between institutional (colonialist) and normative (constitutional) law to “[take the] trouble to conceptualize” the Cherokee Nation as having a sovereign status.  (392)

In the 1831 case Cherokee Nation v Georgia Marshall’s court refused to hear the case on the merits when it determined that the Cherokee Nation did not have standing to sue Georgia over its unprecedented new laws designed to take over Cherokee lands in the State.  Nevertheless, as Frickey points out, Chief Justice Marshall continued his work codifying Federal Indian law by recognizing in his opinion the enormous wrongdoing inflicted on the Tribe and its citizens by Georgia lawmakers.  It was in this case that Marshall “conceptualized” the Indian nations as sovereign states to deny more forcefully colonialist legal precedents that had eroded the government-to-government relationship unique to Indian nations and the U.S.

Then, in the 1832 case Worcester v Georgia, Chief Justice Marshall delivered his most forceful defense of the sovereignty of Indian nations and codified the canon of Federal Indian law he had been cultivating throughout his career.  In this case, Georgia lost in the Supreme Court when it attempted to jail a man for working on Cherokee lands without a license or swearing an oath to the State.  Marshall concluded that a normative interpretation of the relationship between the Tribes and the Federal government should be “woven into the fabric of Federal Indian law.”  Marshall wrote that due to the time that had passed since the original Treaties with the Cherokee and “the actual state of things” in 1832, colonialist interpretation of Federal Indian law was no longer applicable.  Old notions of colonialism were of less concern in the context of the “current efforts to destroy whatever rights [Indian nations] still possess.”  (395)

Frickey notes that, taken together, Marshall’s opinions in these three landmark cases represented a swing from a normative, colonialist interpretation of the legal relationship the fledgling nation had with Indian tribes to a Federalist, Constitutional interpretation.  In Frickey’s view this interpretation developed by Marshall imbues in Treaties and therefore Federal Indian law a “manifest fairness” (407) and resilience in the face of “evisceration” (413).  It requires a “(non)-textualist” interpretation, is of a “constitutive” nature (409), and represents a “clear-statement” based on purposivism. (413)  Frickey concludes with the suggestion that by adhering to this clear-statement canon the Congress, the States, and civil legal instruments can protect the sovereign status of Indian tribes and make sure that “Indians are [not] taken out of Indian law.” (438)

References

Frickey, Philip P. "Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law." Harvard Law Review 107.2 (1993): 381-440. Web. 1 Feb. 2016. <http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2841&context=facpubs>.