Aboriginal Rights and Constitutional Conflict: The Marshall Court, State and Federal Sovereignty, and Native American Rights Under the 1789 Constitution

Abstract

American courts have been significantly involved in determining the content and scope of Indian rights and the relationship these legal claims have with federal and state authority. This jurisprudence exhibits the theoretical and practical complexity of allocating rights and authority among overlapping national, state, and tribal sovereignties. Moreover, unlike other common law settler states, American Indian law is premised on the notion of an efficacious tribal sovereignty. This sovereignty pre-exists the American state but is subsumed within the American federation. Yet at the same time the law also exhibits a clear federal dominance; the national government has both the right and the power to override state and tribal authority and sovereignty in its exercise of its constitutional authority over Indians. This paper argues that the federal-state conflict that arose prior to the American Civil War has profoundly influenced much of the protective aspects of Native American jurisprudence, as found in the seminal Marshall Court opinions. As this law developed in light of state-federal conflict, the underlying policy and legal doctrines, while beneficial to Native American interests, ultimately had little to do with Indian self-determination or protective legal rules. This Antebellum Civil War period was characterized by intense philosophical and legal arguments concerning the nature of the American federation. The Marshall Court in particular became an important, if not primary, proponent of a national view of sovereignty, which it grounded in the international sovereignty of the national government and the 1789 constitutional text. Early American Indian jurisprudence, which was built upon principles of international law, pre-existing British imperial policy, and the various policies (peaceful, aggressive, assimilative) that the nascent United States used in dealing with the tribes, was an area in which this debate developed. The nationalist-minded Marshall Court essentially formulated an Indian Law which, emphasized federal authority and left little room for the states to exercise jurisdiction over the tribes. At the same time, the Marshall Court used the international aspect of Indian law to depreciate the conception of state sovereignty advocated by the proponents of state rights. The concomitant federal dominance of the pre-confederation international tribes was a further justification for a national conception of sovereignty and federal authority.