The New York Review of Books - - The Classifieds -

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

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