Marshall Trilogy – Turtle Talk

Yale Law Journal Comment on the Law of Nations Origin to the Marshall Trilogy

February 20, 2024February 19, 2024Matthew L.M. Fletcher

Eric Eisner has published “The Law-of-Nations Origins of the Marshall Trilogy” in the Yale Law Journal. PDF

Here is the abstract:

Federal Indian law is sometimes seen as a purely domestic part of American law, but its origins are in the law of nations. The Marshall Trilogy—Johnson v. M’Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, three Supreme Court decisions authored by Chief Justice Marshall that are foundational for American federal Indian law—relied on law-of-nations sources. In particular, The Law of Nations, an eighteenth-century treatise by Emer de Vattel, provided a central influence on Marshall’s opinion in Worcester. In early national American legal thought, Vattel was a leading authority on the law governing the rights and obligations subsisting among nations. Recognizing the important role that the law of nations played in the foundations of federal Indian law under-scores the deep roots of tribal sovereignty in American law and clarifies current doctrinal disputes.

Who would win in a fight?

Federal Indian Law & Historical Gossip — The Marshall Trilogy

August 30, 2021Matthew L.M. Fletcher

Those of you who know me know I like historical gossip and comic books. Thought I’d share some excerpts from the comics I give to my students.

New/Old Indian Law Papers on SSRN

May 26, 2011Matthew L.M. Fletcher

Normally, we don’t highlight papers made available on SSRN if they are not new products, but today we make an exception to highlight a couple papers.

First, Patty Ferguson-Bohnee’s paper, “Testimony before the Senate Committee on Indian Affairs: Oversight Hearing on Fixing the Federal Acknowledgment Process,” is now available on SSRN. This paper includes a nice background on the acknowledgement process.

Second, Nathan Goetting’s paper, “The Marshall Trilogy and the Constitutional Dehumanization of American Indians,” which was originally published in the NLG’s Guild Notes, is now available on SSRN.

Ann Tweedy on the Constitution, the Marshall Trilogy, and U.S. v. Lara

September 11, 2008Matthew L.M. Fletcher

Ann Tweedy has posted “Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty” on SSRN. This paper is forthcoming in one my favorite journals, the University of Michigan Journal of Law Reform. Here is the abstract:

This law review article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court’s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments’ inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The article further examines the negative effects of this divestment in Indian Country, from impeding tribes’ ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.

This looks like a very interesting paper, and may be the first paper that digests the recent scholarship on the scope of the Indian Commerce Clause from Pommersheim, Natelson, and others.