Marshalling past and present: Colonialism, constitutionalism, and interpretation in federal Indian law

Harvard Law Review

Volumn 107, Issue 2, 1993, Pages 381-440

  Frickey, Philip P ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

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[No Author keywords available]

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EID: 0042602419     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341778     Document Type: Article

References (265)

1. Outside the mainstream of the American legal community, of course, these generalizations do not hold. In 1987, as in other recent years, representatives of American Indian tribes pressed their claims for recognition under international law at the United Nations. See Howard R. Berman, Perspectives on American Indian Sovereignty and International Law, 1600 to 1776, in EXILED IN THE LAND OF THE FREE 125, 126 (Oren R. Lyons & John C. Mohawk eds., 1992). For an interesting essay detailing the tortuous fit between American constitutional law and American Indian status, see Vine Deloria, Jr., The Application of the Constitution to American Indians, in EXILED IN THE LAND OF THE FREE, supra, at 281, 281-315.
2. Outside the mainstream of the American legal community, of course, these generalizations do not hold. In 1987, as in other recent years, representatives of American Indian tribes pressed their claims for recognition under international law at the United Nations. See Howard R. Berman, Perspectives on American Indian Sovereignty and International Law, 1600 to 1776, in EXILED IN THE LAND OF THE FREE 125, 126 (Oren R. Lyons & John C. Mohawk eds., 1992). For an interesting essay detailing the tortuous fit between American constitutional law and American Indian status, see Vine Deloria, Jr., The Application of the Constitution to American Indians, in EXILED IN THE LAND OF THE FREE, supra, at 281, 281-315.
3. See County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 112 S. Ct. 683 (1992); Blatchford v. Native Village of Noatak, III S. Ct. 2578 (1991); Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); Duro v. Reina, 495 U.S. 676 (1990); Employment Div. v. Smith, 494 U.S. 872 (1990); Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989); Oklahoma Tax Comm'n v. Graham, 489 U.S. 838 (1989); Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988); Hodel v. Irving, 481 U.S. 704 (1987); United States v. Cherokee Nation, 480 U.S. 700 (1987); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)
4. 25 U.S.C. §§ 396a-396f (1988).
5. See Cotton Petroleum Corp., 490 U.S. at 166.
6. Ch. 119, 24 Stat. 388 (codified as amended in scattered sections of 25 U.S.C.).
7. See County of Yakima, 1128. Ct. at 685-86. Probably the only case that involved Indians in this period that was viewed to be of general significance was Employment Division v. Smith, which considered the claim that the Free Exercise Clause of the First Amendment forbade a state from penalizing the sacramental use of peyote in the Native American Church. See Smith, 494 U.S. at 874. Although this case involved issues of deep concern to Indians, it was not, strictly speaking, much of a federal Indian law case, because it was grounded on general constitutional principles, see id. at 890, rather than on principles generated in the specific field of Indian law to resolve disputes involving tribes or their members.
8. County of Yakima, 112 S. Ct. at 694 (Blackmun, J., concurring in part and dissenting in part).
9. H.W. PERRY, JR., DECIDING TO DECIDE 262 (1991) (quoting an unidentified Supreme Court Justice).
10. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 58 (1979) (purporting to quote Justice Harlan).
11. Id. at 359 (purporting to quote Justice Brennan).
12. See infra pp. 386, 387-88; infra note 55.
13. U.S. CONST, art. I, § 2, cl. 3; id. amend. XIV, § 2.
14. Id. art. I, § 8, cl. 3.
15. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 9-53 (1988).
16. Chief Justice Marshall did not, of course, invent these principles out of thin air. For a look at the historical background that informed Chief Justice Marshall's work, see, for example, ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT 312-17 (1990); Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs, 69 B.U. L. REV. 329, 367-68 (1989); and Robert N. Clinton & Margaret T. Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 ME. L. REV. 17, 19-37 (1979).
17. Chief Justice Marshall did not, of course, invent these principles out of thin air. For a look at the historical background that informed Chief Justice Marshall's work, see, for example, ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT 312-17 (1990); Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs, 69 B.U. L. REV. 329, 367-68 (1989); and Robert N. Clinton & Margaret T. Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 ME. L. REV. 17, 19-37 (1979).
18. Chief Justice Marshall did not, of course, invent these principles out of thin air. For a look at the historical background that informed Chief Justice Marshall's work, see, for example, ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT 312-17 (1990); Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs, 69 B.U. L. REV. 329, 367-68 (1989); and Robert N. Clinton & Margaret T. Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 ME. L. REV. 17, 19-37 (1979).
19. American law generally did so as well. See Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 KAN. L. REV. 715, 718-35 (1986). In particular, it is troubling that Chief Justice Marshall's opinion in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), discussed below at pp. 385-90, ratified the use of the rule of law as the means to acquire the Native American land estate.
20. Because Chief Justice Marshall's decisions form a foundation for the analysis of many federal Indian law issues, several important studies in the field have considered them with some care. See, e.g., CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 24, 30-31, 39-40, 55-56 (1987); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-34; Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 201-05 (1984). In this Article, my particular interest is the precise interpretive steps taken by Chief Justice Marshall, which have not been examined in prior studies. For a study tracing Chief Justice Marshall's interpretive canons through later cases, see Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth" - How Long a Time Is That?, 63 CAL. L. REV. 601, 612-14 (1975). Robert Williams has crafted a thoughtful study of the European vision of conquest and colonization that provides the backdrop for the Marshall decisions. See WILLIAMS, supra note 15, at 325-28. As I will explain, to some extent Chief Justice Marshall accepted this tradition uncritically, especially in his first principal decision. See infra pp. 385-90. The goal of this Article, however, is to suggest that the cumulative effect of his three decisions is to mediate colonization and constitutionalism, rather than simply to defer to the former. One cannot deny, though, that these decisions are not what Native Americans would have liked them to be and that they beg many of the central normative questions involved in colonization. For a useful historical overview that does not shirk these normative questions, see G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 703-40 (1988).
21. Because Chief Justice Marshall's decisions form a foundation for the analysis of many federal Indian law issues, several important studies in the field have considered them with some care. See, e.g., CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 24, 30-31, 39-40, 55-56 (1987); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-34; Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 201-05 (1984). In this Article, my particular interest is the precise interpretive steps taken by Chief Justice Marshall, which have not been examined in prior studies. For a study tracing Chief Justice Marshall's interpretive canons through later cases, see Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth" - How Long a Time Is That?, 63 CAL. L. REV. 601, 612-14 (1975). Robert Williams has crafted a thoughtful study of the European vision of conquest and colonization that provides the backdrop for the Marshall decisions. See WILLIAMS, supra note 15, at 325-28. As I will explain, to some extent Chief Justice Marshall accepted this tradition uncritically, especially in his first principal decision. See infra pp. 385-90. The goal of this Article, however, is to suggest that the cumulative effect of his three decisions is to mediate colonization and constitutionalism, rather than simply to defer to the former. One cannot deny, though, that these decisions are not what Native Americans would have liked them to be and that they beg many of the central normative questions involved in colonization. For a useful historical overview that does not shirk these normative questions, see G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 703-40 (1988).
22. Because Chief Justice Marshall's decisions form a foundation for the analysis of many federal Indian law issues, several important studies in the field have considered them with some care. See, e.g., CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 24, 30-31, 39-40, 55-56 (1987); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-34; Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 201-05 (1984). In this Article, my particular interest is the precise interpretive steps taken by Chief Justice Marshall, which have not been examined in prior studies. For a study tracing Chief Justice Marshall's interpretive canons through later cases, see Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth" - How Long a Time Is That?, 63 CAL. L. REV. 601, 612-14 (1975). Robert Williams has crafted a thoughtful study of the European vision of conquest and colonization that provides the backdrop for the Marshall decisions. See WILLIAMS, supra note 15, at 325-28. As I will explain, to some extent Chief Justice Marshall accepted this tradition uncritically, especially in his first principal decision. See infra pp. 385-90. The goal of this Article, however, is to suggest that the cumulative effect of his three decisions is to mediate colonization and constitutionalism, rather than simply to defer to the former. One cannot deny, though, that these decisions are not what Native Americans would have liked them to be and that they beg many of the central normative questions involved in colonization. For a useful historical overview that does not shirk these normative questions, see G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 703-40 (1988).
23. Because Chief Justice Marshall's decisions form a foundation for the analysis of many federal Indian law issues, several important studies in the field have considered them with some care. See, e.g., CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 24, 30-31, 39-40, 55-56 (1987); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-34; Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 201-05 (1984). In this Article, my particular interest is the precise interpretive steps taken by Chief Justice Marshall, which have not been examined in prior studies. For a study tracing Chief Justice Marshall's interpretive canons through later cases, see Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth" - How Long a Time Is That?, 63 CAL. L. REV. 601, 612-14 (1975). Robert Williams has crafted a thoughtful study of the European vision of conquest and colonization that provides the backdrop for the Marshall decisions. See WILLIAMS, supra note 15, at 325-28. As I will explain, to some extent Chief Justice Marshall accepted this tradition uncritically, especially in his first principal decision. See infra pp. 385-90. The goal of this Article, however, is to suggest that the cumulative effect of his three decisions is to mediate colonization and constitutionalism, rather than simply to defer to the former. One cannot deny, though, that these decisions are not what Native Americans would have liked them to be and that they beg many of the central normative questions involved in colonization. For a useful historical overview that does not shirk these normative questions, see G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 703-40 (1988).
24. Because Chief Justice Marshall's decisions form a foundation for the analysis of many federal Indian law issues, several important studies in the field have considered them with some care. See, e.g., CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 24, 30-31, 39-40, 55-56 (1987); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-34; Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 201-05 (1984). In this Article, my particular interest is the precise interpretive steps taken by Chief Justice Marshall, which have not been examined in prior studies. For a study tracing Chief Justice Marshall's interpretive canons through later cases, see Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows Upon the Earth" - How Long a Time Is That?, 63 CAL. L. REV. 601, 612-14 (1975). Robert Williams has crafted a thoughtful study of the European vision of conquest and colonization that provides the backdrop for the Marshall decisions. See WILLIAMS, supra note 15, at 325-28. As I will explain, to some extent Chief Justice Marshall accepted this tradition uncritically, especially in his first principal decision. See infra pp. 385-90. The goal of this Article, however, is to suggest that the cumulative effect of his three decisions is to mediate colonization and constitutionalism, rather than simply to defer to the former. One cannot deny, though, that these decisions are not what Native Americans would have liked them to be and that they beg many of the central normative questions involved in colonization. For a useful historical overview that does not shirk these normative questions, see G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35, at 703-40 (1988).
25. 21 U.S. (8 Wheat.) 543 (1823).
26. Id. at 588.
27. 30 U.S. (5 Pet.) 1 (1831).
28. 31 U.S. (6 Pet.) 515 (1832).
29. For a discussion of earlier Marshall Court cases that involved Indians, see WHITE, cited above in note 17, at 706-08.
30. Johnson, 21 U.S. (8 Wheat.) at 572-73.
31. Id. at 573.
32. Id. at 587.
33. Almost all of the discussion in the opinion makes this point. See, e.g., id. at 591 ("[I]f the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; . . . it becomes the law of the land, and cannot be questioned.").
34. Id. at 588. Chief Justice Marshall returned to this theme later in the opinion: "[i]t is not for the Courts of this country to question the validity of [the conqueror's] title, or to sustain one which is incompatible with it." Id. at 589. However [the restricted nature of Indian title] may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may perhaps be supported by reason, and certainly cannot be rejected by Courts of justice. Id. at 591-92.
35. The traditional reading of Johnson is that it held that, after discovery and conquest, tribes Possessed only "original Indian title," a right of occupancy subject to extinction by the federal government. See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 487 (Rennard Strickland ed., 1982) [hereinafter HANDBOOK]. A more imaginative, narrower, but still plausible caning is simply that only land titles traceable to the post-colonial sovereign are enforceable by the courts of that sovereign; under this reading, the party who traced his title to a transaction between the tribe and a non-Indian should have taken his claim up with the tribe. See Ball, supra note 17, at 23-29; J. Youngblood Henderson, Unraveling the Riddle of Aboriginal Title, 5 AM. INDIAN L. REV. 75, 93-96 (1977).
36. The traditional reading of Johnson is that it held that, after discovery and conquest, tribes Possessed only "original Indian title," a right of occupancy subject to extinction by the federal government. See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 487 (Rennard Strickland ed., 1982) [hereinafter HANDBOOK]. A more imaginative, narrower, but still plausible caning is simply that only land titles traceable to the post-colonial sovereign are enforceable by the courts of that sovereign; under this reading, the party who traced his title to a transaction between the tribe and a non-Indian should have taken his claim up with the tribe. See Ball, supra note 17, at 23-29; J. Youngblood Henderson, Unraveling the Riddle of Aboriginal Title, 5 AM. INDIAN L. REV. 75, 93-96 (1977).
37. Johnson, 21 U.S. (8 Wheat.) at 589.
38. See id. at 580-00
39. Id.
40. Id. at 589.
41. Id. at 590.
42. Id. at 573.
43. At every opportunity, Chief Justice Marshall attempted to deflect the normative questions rather than address them directly. Indeed, the tone of his opinion allows the interpretation that Chief Justice Marshall himself may have had some qualms about colonization. For example, he referred to the colonizers' "ambition" and implied that their actions required some "apology," although the colonizers themselves "found no difficulty in convincing themselves" of the rightness of their conquest. Id. at 572-73. Similarly, he described the colonizers' rationale as an "excuse, if not justification," for their deeds. Id. at 589. A third example is his description of the European theory of conquest as "pompous." Id. at 590. There are other examples in the opinion as well.
44. Id. at 588. In a later case, Justice McLean did briefly address this question. See infra note 76.
45. Johnson, 21 U.S. (8 Wheat.) at 589.
46. Id. at 588.
47. Ironically, even though Chief Justice Marshall ultimately rejected this approach, see infra Part III, the current Supreme Court may well have difficulty distinguishing between tribal Sovereignty and what today would be considered "discrete and insular minority" status. See infra pp. 424-26.
48. See supra note 28.
49. Johnson, 21 U.S. (8 Wheat.) at 574 (emphasis added). The full passage provides some sense of Chief Justice Marshall's vision of the retained rights of the Indians: In the establishment of these relations [among European discovering sovereigns], the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. Id.
50. 30 U.S. (5 Pet.) 1 (1831).
51. 43 Id. at 16-20.
52. See Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 STAN. L. REV. 500, 513 (1969).
53. Cherokee Nation, 30 U.S. (5 Pet.) at 15 (emphasis added). The analytical structure of Cherokee Nation - discussing the merits first and jurisdiction last and finding the absence of jurisdiction a convenient way to avoid a direct confrontation between the Court and a powerful insututional opponent - is similar to Chief Justice Marshall's method in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). For a brief elaboration of the parallels between the two cases, see DAVID H. GETCHES, CHARLES F. WILKINSON & ROBERT A. WILLIAMS, JR., CASES AND MATERIALS ON FEDERAL INDIAN LAW 139 (30 ed. 1993).
54. Cherokee Nation, 30 U.S. (5 Pet.) at 16.
55. Id. at 17.
56. That characterization would ignore, however, that Chief Justice Marshall based his conclusion of tribal sovereignty not only on the self-governing capacities of the Cherokee, but also upon the fact that the colonies and eventually the United States itself uniformly treated Indian tribes as sovereigns, as evidenced by their treaties with them and the passage of statutes consistent with those treaties. See id. at 16-17.
57. Id. at 18 (quoting U.S. CONST. art. 1, § 8, cl. 3).
58. 51 31 U.S. (6 Pet.) 515 (1832).
59. Chief Justice Marshall concluded that United States law treated Indian tribes that had not given up their sovereignty as "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States." Id. at 557. "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states," he stated, "and provide that all intercourse with them shall be carried on exclusively by the government of the union." Id. Under the Constitution, Chief Justice Marshall continued, the federal government rightfully possessed this authority, based on the war power, the treaty power, and the power to regulate commerce with tribes, as well as the notion that the federal government is the successor to the British crown, in which power to deal with tribes resided rather than in the colonies. See id. at 558-559. Accordingly, the tribe's exclusive relationship with the United States left Georgia with no power to regulate the tribe. In Chief Justice Marshall's words: The Cherokee nation . . . is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. Id. at 561.
60. See id. at 542-48.
61. The earlier part of the opinion considered whether the Court had jurisdiction to hear the case. See id. at 536-41. This would be unremarkable but for the contrary way Chief Justice Marshall structured his opinion in Cherokee Nation, in which conclusions about the merits came first and jurisdiction was addressed later. See supra note 45. Of course, there is a fundamental difference in the two cases: unlike in Cherokee Nation, in Worcester Chief Justice Marshall concluded that the Court had jurisdiction to address the merits of the case. See Worcester, 31 U.S. (6 Pet.) at 541.
62. 55 Chief Justice Marshall wrote: America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing. Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers? Worcester, 31 U.S. (6 Pet.) at 542-43.
63. Id. at 543.
64. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 588 (1823).
65. Later passages in Worcester also support this conclusion. See Worcester, 31 U.S. (6 Pet.) at 557-62.
66. See United States v. Sandoval, 231 U.S. 28, 46-47 (1913); Lone Wolf v. Hitchcock, 187 U.S. 553, 565-67 (1903); United States v. Kagama, 118 U.S. 375, 383-85 (1886). For an excellent discussion and critique of the later cases that explicitly embraced this theory, see Newton, cited above in note 17, passim. I have serious qualms about the plenary power doctrine as a congressional sword against tribes (as opposed to a preemptive shield against state regulation of tribes). See Philip P, Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1139-42, 1204-05 (1990).
67. Worcester, 31 U.S. (6 Pet.) at 543.
68. In my judgment, Chief Justice Marshall's three decisions, when read together, ratified the existence of Euro-American colonial power over Indians, but at the same time began the process of setting structural and procedural limits on the exercise of that power. Under Worcester, it became clear that the federal courts would invalidate efforts by states to implement colonization. See supra note 52 and accompanying text. In addition, although Congress did have this power, it was subject to judicial interpretation to protect against all but clearly intended harshness. See infra pp. 399-411 (discussing Chief Justice Marshall's attribution of benign purposes to federal Indian treaty).
69. See supra pp. 388-89.
70. Worcester, 31 U.S. (6 Pet.) at 544-45.
71. Id. at 545.
72. Id. at 546.
73. Id. at 548; see id. at 547-49.
74. Id. at 547.
75. See id. at 549-50.
76. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
77. See supra p. 395. A unilateral act by a state that purported to terminate tribal sovereignty would violate the ultimate holding in Worcester that the tribal-federal relationship is an exclusive one and that federal treaties and statutes that recognize tribal sovereignty preempt inconsistent state law. See supra note 52.
78. See supra p. 396.
79. See Worcester, 31 U.S. (6 Pet.) at 547-49.
80. See id. at 551-56.
81. See id. at 551, 552-53.
82. See Burke, supra note 44, at 521.
83. Justice McLean wrote an opinion concurring in the judgment in Worcester. See Worcester, 31 U.S. (6 Pet.) at 563-96 (McLean, J., concurring in the judgment). He largely agreed with Chief Justice Marshall, although he did opine that a tribe could lose its sovereignty de facto, through assimilation and the loss of a separate character, as well as de jure - for example, by ceding it away by treaty. See id. at 593-94. Justice Baldwin simply noted his dissent in Worcester and stated that his views had not changed from those expressed in his dissent in Cherokee Nation. See id. at 596 (statement of Baldwin, J., indicating that a dissent was filed but not reported).
84. For a survey of these canons, see Wilkinson & Volkman, cited above in note 17, at 617-20.
85. See HANDBOOK, supra note 28, at 221-25; WILKINSON, supra note 17, at 46-52; Wilkinson & Volkman, supra note 17, at 623-24.
86. On the possibility of reviving Chief Justice Marshall's legacy, see below Part IV. C.
87. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 20-31 (1831) (Johnson, J., concurring in the judgment); id. at 31-50 (Baldwin, J., concurring in the judgment).
88. See WHITE, supra note 17, at 732. See also the cover page of VI Peters Reports, which indicated that Johnson "was prevented attending the court during the whole term by severe and continued indisposition." 31 U.S. (6 Pet.) cover page (1832).
89. Treaty of Hopewell, Nov. 28, 1785, U.S.-Cherokee, 7 Stat. 18.
90. Id., 7 Stat. at 18.
91. See Cherokee Nation, 30 U.S. (5 Pet.) at 23 (Johnson, J., concurring in the judgment) ("This is certainly the language of sovereigns and conquerors, and not the address of equals to equals.").
92. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 551 (1832). Chief Justice Marshall made much the same point concerning the third article of the treaty, which acknowledged that the Cherokee were under the protection of the United States and no other sovereign. See id. at 551-52.
93. Treaty of Hopewell, supra note 82, 7 Stat. at 19.
94. See Cherokee Nation, 30 U.S. (5 Pet.) at 23 (Johnson, J., concurring in the judgment).
95. See CHARLES C. ROYCE, THE CHEROKEE NATION OF INDIANS 24 (1975).
96. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 543 (1823).
97. See Cherokee Nation, 30 U.S. (5 Pet.) at 23 (Johnson, J., concurring in the judgment) ("It is clear that [the treaty] was intended to give them no other rights over the territory than what were needed by a race of hunters . . . .").
98. Worcester, 31 U.S. (6 Pet.) at 552.
99. Id. at 553.
100. On contracts of adhesion generally, see, for example, E. ALLAN FAHNSWORTH, CONTRACTS §§ 4.26, 4.28 at 480, 506-10 (2d ed. 1990).
101. See Worcester, 31 U.S. (6 Pet.) at 554.
102. See id. at 552-53. A similar awareness of the "spirit" of the treaty informed Chief Justice Marshall's interpretation of the ninth article. See infra pp. 403-04.
103. Worcester, 31 U.S. (6 Pet.) at 552-53.
104. See Winters v. United States, 207 U.S. 564, 576-77 (1908); United States v. Winans, 198 U.S. 371, 381-82 (1905).
105. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 23 (1831) (Johnson, J., concurring in the judgment).
106. See Worcester, 31 U.S. (6 Pet.) at 542-48.
107. Treaty of Hopewell, supra note 82, 7 Stat. at 20 (emphasis added).
108. Cherokee Nation, 30 U.S. (5 Pet.) at 24-25 (Johnson, J., concurring in the judgment). Justice Johnson stated: [A]lmost every attribute of sovereignty is renounced by them in that very treaty. They acknowledge themselves to be under the sole and exclusive protection of the United States. They receive the territory allotted to them as a boon, from a master or conqueror; the right of punishing intruders into that territory is conceded, not asserted as a right; and the sole and exclusive right of regulating their trade and managing all their affairs in such manner as the government of the United States shall think proper; amounting in terms to a relinquishment of all power, legislative, executive and judicial, to the United States, is yielded in the ninth article. Id.
109. See Worcester, 31 U.S. (6 Pet.) at 553-54.
110. See id. at 554.
111. Id. The entire passage is worth consideration: To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable that congress should possess it. The commissioners brought forward the claim, with the profession that their motive was "the benefit and comfort of the Indians, and the prevention of injuries or oppressions." This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but cannot be true, as respects the management of all their affairs. The most important of these, are the cession of their lands, and security against intruders on them. Is it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future cessions, and the terms on which they should be made? or to compel their submission to the violence of disorderly and licentious intruders? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the right of self-government on subjects not connected with trade. Such a measure could not be "for their benefit and comfort," or for "the prevention of injuries and oppression." Such a construction would be inconsistent with the spirit of this and of all subsequent treaties; especially of those articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert a treaty of peace covertly into an act, annihilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed. Id. at 553-54.
112. Chief Justice Marshall continued this generous approach to treaty interpretation when he considered a subsequent treaty as well. See id. at 554-56. As Richard Collins has pointed out, Chief Justice Marshall constructed the context of Worcester by measuring Cherokee sovereignty from an early point, at which the tribe had considerable strength, and then construed later diminutions of that sovereignty through subsequent treaties narrowly against that earlier context. See Richard B. Collins, Indian Consent to American Government, 31 ARIZ. L. REV. 365, 375-76 (1989).
113. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
114. It seems impossible to determine the degree to which Chief Justice Marshall's decision in Worcester resulted from his evolving normative perspectives on federal Indian law, rather than from his instinct to centralize in the federal government the authority to resolve questions of national importance. Both concerns led to the same outcome in Worcester. The extraordinary lengths to which Chief Justice Marshall went to recognize and preserve tribal sovereignty in the face of arguably conflicting treaty language do suggest, however, that Cherokee Nation and Worcester cannot be dismissed as merely further examples of the federalist agenda of the Marshall Court. In addition, for whatever it might be worth, contemporaneous evidence supports the proposition that Chief Justice Marshall and Justice Story were quite sympathetic to the plight of the tribes that were being encroached upon by states in the southeastern United States. See 4 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL 542 n.1 (1919) (quoting an 1829 letter from Chief Justice Marshall to Justice Story); WHITE, supra note 17, at 731 (quoting an 1832 letter from Justice Story to his wife prior to the arguments in Worcester); id. at 731-32 (quoting a letter from Justice Story to his wife following the arguments in Worcester); id. at 736 (quoting a letter from Justice Story to his wife following the issuance of the opinion in Worcester).
115. See generally GRANT FOREMAN, INDIAN REMOVAL 251-312 (1932) (discussing the subsequent removal of the Cherokee from Georgia and other southeastern states). It would be a mistake, however, to conclude that Chief Justice Marshall issued the opinion in Worcester without fear of adverse practical consequences. Prior to Cherokee Nation and Worcester, President Andrew Jackson had refused the tribe's request for federal assistance to protect their treaty rights. Following Worcester, an unprecedented constitutional confrontation between the executive branch and the Court occurred. See 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 729 (1926) (calling the controversy "the most serious crisis in the history of the Court"). For it was about Worcester that President Andrew Jackson supposedly said, "John Marshall has made his decision: now let him enforce it!" 1 HORACE GREELEY, THE AMERICAN CONFLICT 106 (Hartford, O.D. Case & Co. 1864). The whole story is well presented in Burke, cited above in note 44, 500-32.
116. See generally GRANT FOREMAN, INDIAN REMOVAL 251-312 (1932) (discussing the subsequent removal of the Cherokee from Georgia and other southeastern states). It would be a mistake, however, to conclude that Chief Justice Marshall issued the opinion in Worcester without fear of adverse practical consequences. Prior to Cherokee Nation and Worcester, President Andrew Jackson had refused the tribe's request for federal assistance to protect their treaty rights. Following Worcester, an unprecedented constitutional confrontation between the executive branch and the Court occurred. See 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 729 (1926) (calling the controversy "the most serious crisis in the history of the Court"). For it was about Worcester that President Andrew Jackson supposedly said, "John Marshall has made his decision: now let him enforce it!" 1 HORACE GREELEY, THE AMERICAN CONFLICT 106 (Hartford, O.D. Case & Co. 1864). The whole story is well presented in Burke, cited above in note 44, 500-32.
117. See generally GRANT FOREMAN, INDIAN REMOVAL 251-312 (1932) (discussing the subsequent removal of the Cherokee from Georgia and other southeastern states). It would be a mistake, however, to conclude that Chief Justice Marshall issued the opinion in Worcester without fear of adverse practical consequences. Prior to Cherokee Nation and Worcester, President Andrew Jackson had refused the tribe's request for federal assistance to protect their treaty rights. Following Worcester, an unprecedented constitutional confrontation between the executive branch and the Court occurred. See 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 729 (1926) (calling the controversy "the most serious crisis in the history of the Court"). For it was about Worcester that President Andrew Jackson supposedly said, "John Marshall has made his decision: now let him enforce it!" 1 HORACE GREELEY, THE AMERICAN CONFLICT 106 (Hartford, O.D. Case & Co. 1864). The whole story is well presented in Burke, cited above in note 44, 500-32.
118. See supra p. 401.
119. See Wilkinson & Volkman, supra note 17, at 617-18.
120. See, e.g., 1 FARNSWORTH, supra note 93, § 4.26, at 480 11.4.
121. 112 In my judgment, there are three basic approaches to statutory interpretation: textualism, which implements plain textual meaning; intentionalism, which implements actual or presumed legislative intent; and purposivism, which implements actual or presumed public-policy purposes attributed to a rational, public-spirited legislature. See generally William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 324-45 (1990).
122. For the most commonly accepted formulation of purposive statutory interpretation, see HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1200 (tent. ed. 1958). Benevolent assumptions may be counterfactual in a given case, but an interpreting court might embrace them anyway in order to promote the overall coherence and normative attractiveness of the law. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 250-56 (1986).
123. For the most commonly accepted formulation of purposive statutory interpretation, see HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS 1200 (tent. ed. 1958). Benevolent assumptions may be counterfactual in a given case, but an interpreting court might embrace them anyway in order to promote the overall coherence and normative attractiveness of the law. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 250-56 (1986).
124. This assumption makes particular sense in the context of Indian treaties. The purpose behind construing adhesion contracts against the drafter is to protect weaker parties against unreasonable terms in contracts, the details of which they cannot influence. That purpose logically collapses into a theory of unconscionability, under which a court abandons fictions about enforcing objective manifestations of the intent of the parties to a bargain and, more honestly, simply refuses to enforce a contractual term because of its manifest unfairness. See, e.g., 1 FARNSWORTH, supra note 93, §§ 4.26-4.28, at 478-517. The theory that a provision in an Indian treaty is voidable if it is manifestly unfair to the tribe would be a powerful weapon or tribal advocates indeed - far too powerful ever to work its way into American law.
125. Of course, if one views Christianizing the heathen and otherwise converting them to European ways as "benign," to interpret an Indian treaty to promote these ends might be consisient with the purposive approach, even if the ultimate consequence involved the destruction of the tribes. This analysis demonstrates that purposive interpretation cannot avoid normative questions about the plausible purposes attributable to a sovereign act.
126. See supra pp. 394-96.
127. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 551-52 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831).
128. In his thoughtful study of federal Indian law, Charles Wilkinson briefly suggests that "the organic governmental side of Indian treaties and treaty substitutes should be construed in the same manner as constitutional provisions." WILKINSON, supra note 17, at 104. As my discussion in the text shows, I agree with this proposal. My argument, however, is not only that this approach is analogically sound and normatively attractive, but also that in fact it is essentially the approach Chief Justice Marshall established in the first place.
129. See John C. Yoo, Comment, Marshall's Plan: The Early Supreme Court and Statutory Interpretation, 101 YALE L.J. 1607, 1615-26 (1992). This Comment's conclusions, which paint Chief Justice Marshall as something of a textualist in statutory interpretation, give me some pause. All American judges are presumptive textualists: they follow relatively clear statutory language absent some strong reason to deviate from it. When contemporary scholars label a judge a textualist, they mean that the judge is willing to stick with relatively clear statutory text, perhaps filtered through canons of interpretation, even in circumstances in which a less rigid interpreter would be pulled strongly in another direction by the intentions of the legislature, by the purposes that can be attributed to the statute based on the assumption that the legislature adopted the statute to promote the public interest, or by constitutional or other public values that surround the controversy. See generally Eskridge & Frickey, supra note 112, at 340 (exploring textualism as a method of statutory interpretation). On my reading, the Comment clearly demonstrates only that Chief Justice Marshall shared the universal preference for relatively clear statutory meaning, and not that Chief Justice Marshall stuck with textualism in hotly contested cases in which other Justices presented strong nontextualist arguments. In any event, my argument does not depend much upon the conclusions of the Comment, because even a more flexible approach to statutory interpretation than that posited by the Comment would almost certainly allocate more weight for text than did the approach Chief Justice Marshall took in Worcester.
130. 5 U.S. (1 Cranch) 137 (1803).
131. 17 U.S. (4 Wheat.) 316 (1819).
132. Marbury, 5 U.S. (1 Cranch) at 176-78.
133. McCulloch, 17 U.S. (4 Wheat.) at 411-25.
134. Id. at 407.
135. In Marbury, Chief Justice Marshall wrote: That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. Marbury, 5 U.S. (1 Cranch) at 176. In McCulloch, Chief Justice Marshall echoed this theme that the Constitution flows from the people rather than from the states. See McCulloch, 17 U.S. (4 Wheat) at 403-05.
136. Chief Justice Marshall noted the written nature of the Constitution in Marbury: Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. Marbury, 5 U.S. (1 Cranch) at 177.
137. Id.
138. McCulloch, 17 U.S. (4 Wheat.) at 407. The full passage from McCulloch reads as follows: A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is a constitution we are expounding. Id.
139. Id. at 415.
140. They include the obvious fact that both opinions produced federalist outcomes: McCulloch provided Congress generous legislative flexibility and protected the federal government from taxation by states, see id. at 425-37, and Worcester centralized in the federal government all questions of Indian affairs, see Worcester, 31 U.S. (6 Pet.) at 557-61.
141. McCulloch, 17 U.S. (4 Wheat.) at 421. McCulloch's test for compliance with the Necessary and Proper Clause of Article 1 is as follows: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id.
142. Id.
143. Worcester, 31 U.S. (6 Pet.) at 552-53.
144. See id. at 553-54.
145. In McCulloch, Chief Justice Marshall relied upon the first Congress's charter of an earlier bank of the United States, following a full debate, as strong evidence that such legislation was constitutional. See McCulloch, 17 U.S. (4 Wheat.) at 401-02. He also noted that opponents of the earlier measure had changed their minds on the constitutional question when it became apparent that a national bank was in the national interest. "It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance." Id. at 402. Similarly, in Worcester, Chief Justice Marshall asserted that, from earliest colonial times, the European sovereigns had dealt with tribes as sovereigns that possessed full authority over their internal matters. See Worcester, 31 U.S. (6 Pet.) at 559. The United States had not only inherited that tradition, it had entered into treaties and enacted statutes to implement it. For Chief Justice Marshall, the question in Worcester boiled down to this: "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union. Is this the rightful exercise of power, or is it usurpation?" Id. at 557-58. Finding that the Constitution lodged the exclusive power over Indian relations in the federal government, as it had been in the British crown, Chief Justice Marshall concluded that the exercise of federal authority was lawful and the Georgia statutes preempted. See id. at 558-63.
146. See infra pp. 414-15.
147. McCulloch, 17 U.S. (4 Wheat.) at 408. Chief Justice Marshall wrote: But it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulph of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction, (unless the words imperiously require it,) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. Id. at 408-09.
148. Worcester, 31 U.S. (6 Pet.) at 554.
149. Id.
150. Technically speaking, because in Worcester and McCulloch Chief Justice Marshall sought to protect the spirit of constitutive documents from defeat at the hands of their text, he was engaged in the internal application of a very stringent "purpose approach" to the documents and not the external application of a clear-statement rule rooted in concerns extrinsic to the documents. What is most relevant, though, for the present analysis is the degree of vigor with which Chief Justice Marshall allowed seemingly clear text to be trumped, not whether the interpretation was based on an internal or an external canon. In any event, the distinction between internal and external sources of interpretive vigor is a thin one in Worcester. Recall Chief Justice Marshall's view that the underlying international law and historical practices demonstrated that Cherokee sovereignty survived discovery and all other events prior to the signing of the Treaty of Hopewell, and that neither the United States nor the Cherokee were likely to have deemed such a treaty a cession of tribal sovereignty. See supra pp. 396-97. Surely these factors contributed to Chief Justice Marshall's vigorous protection of Cherokee sovereignty against apparently contradictory treaty language. If these factors are viewed as external to the treaty, Chief Justice Marshall's interpretive method could be deemed an external clear-statement rule designed to protect sovereignty under international law. On the other hand, if such factors are viewed as merged into the treaty because they are the "legislative history" and purposes for it, his method looks more like an internal "purpose approach" applied with unusual vigor. In my judgment, this inquiry amounts to little more than a labeling process that does not advance the analysis.
151. For a famous, amusing, but ultimately too flippant presentation of the canons as rules of thumb that always carry with them a "counter-canon," see Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 VAND. L. REV. 395, 401-06 (1950).
152. See WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 639-46 (1988).
153. On these three basic interpretive approaches, see Eskridge & Frickey, cited above in note 112, at 324-45. These kinds of canons have little precedential force to them, as revealed in the confusion within the current Court over which of these basic techniques should be followed in statutory interpretation cases. Compare Chisom v. Roemer, 111 S. Ct. 2354, 2368 (1991) (majority opinion of Stevens, J.) (using legislative intent and statutory purpose to trump the textual meaning of a statute) with West Virginia Univ. Hosp., Inc. v. Casey, 111 S. Ct. 1138, 1147 (1991) (majority opinion of Scalia, J.) (employing a textualist approach and repudiating inquiries about legislative intent and statutory purpose).
154. See William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1009 (1989) (enumerating "the Constitution, evolving statutes, policy, and common law" as sources for public values in statutory interpretation); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 466 (1989) (proposing constitutional norms, institutional concerns, and the counteraction of statutory failure as principles for statutory interpretation in the regulatory state). The distinction between internal and external application of canons, although of theoretical significance, does not bear on Chief Justice Marshall's analysis. See supra note 140.
155. For example, arguably the rule of lenity in federal criminal cases is designed to promote fair notice to the citizenry of what constitutes criminal conduct, to limit prosecutorial discretion, and to protect the police power of the states against federal encroachment. Thus, we might expect the rule to be invoked if a United States Attorney appointed by a Republican President sought
156. If either clear statutory text or very clear legislative history will trump the canon, the canon functions as a traditional clear-statement rule; if only unmistakable statutory text will do, the canon functions as a "super-strong clear-statement rule," to borrow a term Bill Eskridge and I have coined. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 595 n.4 (1992).
157. See id. at 615-29.
158. By "quasi-constitutional law" I mean, essentially, a kinder and gentler form of judicial review. Since Marbury, of course, the Court has deemed itself empowered to invalidate laws made by a policymaking branch as inconsistent with the national constitutive document, the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). Quasi-constitutional interpretive techniques do not result in the invalidation of such laws, but rather strive to construe them to accord with judicially defined values purported to be rooted in that constitutive document.
159. See Gregory v. Ashcroft, in S. Ct. 2395, 2402-03 (1991) (holding that a clear-statement requirement must be satisfied before a federal statute will be held to regulate core state functions); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (requiring a clear statement before a federal statute will be held to have abrogated the states' Eleventh Amendment immunity from suit in federal court); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16-17 (1981) (subjecting the federal conditions that accompany federal funding of joint federal-state programs to a stringent clear-statement rule).
160. See EEOC v. Arabian Am. Oil Co., 111 S. Ct. 1227, 1230, 1236 (1991) (protecting the executive's foreign relations power against congressional encroachment by requiring that, to apply extraterritorially, a federal statute must contain a clear statement to that effect); Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 233 (1986) (reading a congressional directive narrowly to preserve the executive's foreign relations power).
161. Atascadero, 473 U.S. at 242; see also Gregory, 111 S. Ct. at 2401 (applying Atascadero's standard to congressional regulation of core state functions).
162. Thus, in the area of separation of powers, the Court has not enforced the nondelegation doctrine, see Mistretta v. United States, 488 U.S. 361, 371-79 (1989) (refusing to find a violation of the nondelegation doctrine in Congress's creation of an independent sentencing commission), and it has upheld unconventional federal governmental arrangements in tension with other separation of powers values, see id.; Morrison v. Olson, 487 U.S. 654, 677 (1988) (upholding Congress's investment of a specially created court with the power to appoint independent counsel). Similarly, after flirting for nearly a decade with an approach that interposed the Tenth Amendment as a barrier to congressional regulation of core state functions pursuant to its commerce power, the Court abandoned this approach in 1985 in large part because of the impossible line-drawing problems. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-47, 556-57 (1985) (overruling National League of Cities v. Usery, 426 U.S. 833 (1976)). This debate is not settled, however. In New York v. United States, 112 S. Ct. 2408 (1992), the Court invalidated on federalism grounds one aspect of the federal regulation of states pursuant to a statute adopted under Congress's commerce and spending powers. See id. at 2428.
163. See Eskridge & Frickey, supra note 147, at 630-32. Whether the application of stringent clear-statement rules to promote these particular values is appropriate is, of course, another question. For a critique, see id. at 632-46.
164. See, e.g., KAY LEHMAN SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 314-15, 395-96, 398 (1986).
165. See Wilkinson & Volkman, supra note 17, at 623-34. In United States v. Dion, 476 U.S. 734 (1986), the Court concluded that the canon concerning Indian treaty abrogation is not a clear-statement rule of the "super-strong" variety discussed above in note 147. The Court held in Dion that there was no "per se rule" that required that the abrogation be embodied in an explicit statement in statutory text; clear legislative history can lead to an abrogation as well. Dion, 476 U.S. at 739.
166. See Lone Wolf v. Hitchcock, 187 U.S. 553, 565-68 (1903). If the abrogation of the treaty results in a taking of tribal land that the federal government had recognized in the treaty, the Fifth Amendment requires just compensation. See United States v. Sioux Nation of Indians, 448 U.S. 371, 423-24 (1980).
167. This is not the place for an extended discussion of interpretation throughout all of federal Indian law since 1832. For present purposes, three points should suffice. First, almost any generalization about the subject is treacherous. Over the years, the Court has had significant problems with the intricacies of Indian law and the precedential effect of prior decisions. Commentators have bewailed the incoherence of rather recent cases, see, e.g., Russel L. Barsh, The Omen: Three Affiliated Tribes v. Moe and the Future of Tribal Self-Government, 5 AM. INDIAN L. REV. 1, 1 (1977) ("The Court lacks direction."); Robert Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D. L. REV. 434 (1981); Robert S. Pelcyger, Justices and Indians: Back to Basics, 62 OR. L. REV. 29, 30 (1983) ("The Court's lack of consistency and predictability has been noted, even by the Justices themselves."), but in fact the same complaint can probably be made about the entire corpus of federal Indian law. Nonetheless, as the discussion in the text that follows indicates, I believe that the Court in recent years has demonstrably altered its approach to interpretation in Indian law. Second, until recently, at least, the primary theory of interpretation posited by the Court has been intentionalism. This approach makes some sense, in a field in which congressional power over Indian affairs is said to be plenary. Yet congressional intent does not explain, much less justify, the outcomes in many major federal Indian law cases. See Frickey, supra note 59, at 1137-42. Third, rather than adhere rigorously to congressional intent, until recently, at least, the Court has tended to justify its opinions in federal Indian law by reference to canons of interpretation that are traceable to Chief Justice Marshall's opinion in Worcester. For the primary study on the canons, see Wilkinson & Volkman, cited above in note 17, at 623-34. Although they are phrased in a variety of ways, the canons are designed to promote narrow interpretation of federal treaties, statutes, and regulations that intrude upon Indian self-determination and to promote broad interpretation of provisions that benefit Indians. See id. at 623-34. Many of the most important Indian victories in the Supreme Court were justified by reference to these canons. See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976) (resolving statutory ambiguities in favor of the Indians, as discussed below at pp. 429-32); Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (stating that "the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress" (quoting Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934))). In my judgment, these victories came about not through a positivistic judicial allegiance to the canons as rules of law, but through a judicial sensitivity to the Indian context that was fostered by the canons. Properly understood, the canons call upon the judge to become sensitized to the Indian interests in the case, to conceptualize a tribe as a distinct and sovereign political community under American domestic law, to reexamine the fit between routine Euro-American legal doctrines and the tribal context, to recognize a tradition of protection of Indian rights against all but crystal-clear encroachments, and to abandon obsolete congressional intent if later developments have repudiated it. See Frickey, supra note 59, at 1174-1203, 1216-40.
168. This is not the place for an extended discussion of interpretation throughout all of federal Indian law since 1832. For present purposes, three points should suffice. First, almost any generalization about the subject is treacherous. Over the years, the Court has had significant problems with the intricacies of Indian law and the precedential effect of prior decisions. Commentators have bewailed the incoherence of rather recent cases, see, e.g., Russel L. Barsh, The Omen: Three Affiliated Tribes v. Moe and the Future of Tribal Self-Government, 5 AM. INDIAN L. REV. 1, 1 (1977) ("The Court lacks direction."); Robert Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D. L. REV. 434 (1981); Robert S. Pelcyger, Justices and Indians: Back to Basics, 62 OR. L. REV. 29, 30 (1983) ("The Court's lack of consistency and predictability has been noted, even by the Justices themselves."), but in fact the same complaint can probably be made about the entire corpus of federal Indian law. Nonetheless, as the discussion in the text that follows indicates, I believe that the Court in recent years has demonstrably altered its approach to interpretation in Indian law. Second, until recently, at least, the primary theory of interpretation posited by the Court has been intentionalism. This approach makes some sense, in a field in which congressional power over Indian affairs is said to be plenary. Yet congressional intent does not explain, much less justify, the outcomes in many major federal Indian law cases. See Frickey, supra note 59, at 1137-42. Third, rather than adhere rigorously to congressional intent, until recently, at least, the Court has tended to justify its opinions in federal Indian law by reference to canons of interpretation that are traceable to Chief Justice Marshall's opinion in Worcester. For the primary study on the canons, see Wilkinson & Volkman, cited above in note 17, at 623-34. Although they are phrased in a variety of ways, the canons are designed to promote narrow interpretation of federal treaties, statutes, and regulations that intrude upon Indian self-determination and to promote broad interpretation of provisions that benefit Indians. See id. at 623-34. Many of the most important Indian victories in the Supreme Court were justified by reference to these canons. See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976) (resolving statutory ambiguities in favor of the Indians, as discussed below at pp. 429-32); Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (stating that "the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress" (quoting Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934))). In my judgment, these victories came about not through a positivistic judicial allegiance to the canons as rules of law, but through a judicial sensitivity to the Indian context that was fostered by the canons. Properly understood, the canons call upon the judge to become sensitized to the Indian interests in the case, to conceptualize a tribe as a distinct and sovereign political community under American domestic law, to reexamine the fit between routine Euro-American legal doctrines and the tribal context, to recognize a tradition of protection of Indian rights against all but crystal-clear encroachments, and to abandon obsolete congressional intent if later developments have repudiated it. See Frickey, supra note 59, at 1174-1203, 1216-40.
169. This is not the place for an extended discussion of interpretation throughout all of federal Indian law since 1832. For present purposes, three points should suffice. First, almost any generalization about the subject is treacherous. Over the years, the Court has had significant problems with the intricacies of Indian law and the precedential effect of prior decisions. Commentators have bewailed the incoherence of rather recent cases, see, e.g., Russel L. Barsh, The Omen: Three Affiliated Tribes v. Moe and the Future of Tribal Self-Government, 5 AM. INDIAN L. REV. 1, 1 (1977) ("The Court lacks direction."); Robert Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D. L. REV. 434 (1981); Robert S. Pelcyger, Justices and Indians: Back to Basics, 62 OR. L. REV. 29, 30 (1983) ("The Court's lack of consistency and predictability has been noted, even by the Justices themselves."), but in fact the same complaint can probably be made about the entire corpus of federal Indian law. Nonetheless, as the discussion in the text that follows indicates, I believe that the Court in recent years has demonstrably altered its approach to interpretation in Indian law. Second, until recently, at least, the primary theory of interpretation posited by the Court has been intentionalism. This approach makes some sense, in a field in which congressional power over Indian affairs is said to be plenary. Yet congressional intent does not explain, much less justify, the outcomes in many major federal Indian law cases. See Frickey, supra note 59, at 1137-42. Third, rather than adhere rigorously to congressional intent, until recently, at least, the Court has tended to justify its opinions in federal Indian law by reference to canons of interpretation that are traceable to Chief Justice Marshall's opinion in Worcester. For the primary study on the canons, see Wilkinson & Volkman, cited above in note 17, at 623-34. Although they are phrased in a variety of ways, the canons are designed to promote narrow interpretation of federal treaties, statutes, and regulations that intrude upon Indian self-determination and to promote broad interpretation of provisions that benefit Indians. See id. at 623-34. Many of the most important Indian victories in the Supreme Court were justified by reference to these canons. See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976) (resolving statutory ambiguities in favor of the Indians, as discussed below at pp. 429-32); Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (stating that "the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress" (quoting Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934))). In my judgment, these victories came about not through a positivistic judicial allegiance to the canons as rules of law, but through a judicial sensitivity to the Indian context that was fostered by the canons. Properly understood, the canons call upon the judge to become sensitized to the Indian interests in the case, to conceptualize a tribe as a distinct and sovereign political community under American domestic law, to reexamine the fit between routine Euro-American legal doctrines and the tribal context, to recognize a tradition of protection of Indian rights against all but crystal-clear encroachments, and to abandon obsolete congressional intent if later developments have repudiated it. See Frickey, supra note 59, at 1174-1203, 1216-40.
170. The principal cases are those cited above in note 59.
171. See supra p. 395.
172. The process is explained in Solem v. Bartlett, 465 U.S. 463 (1984). Solem is the Court's principal recent decision on whether the allotment process terminated the reservation, diminished its size, or left the reservation boundaries intact. See id. at 466-67. Several other important recent cases have involved allotment issues. See County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 112 S. Ct. 683, 694 (1992) (allowing a county to impose an ad valorem tax but not an excise tax on land owned by a tribe or members on an allotted reservation); Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 432 (1989) (plurality opinion); id. at 446-47 (Stevens, J., announcing the judgment of the court in one of the consolidated actions and concurring in the judgment in two others) (limiting tribal authority to zone fee simple lands owned by non-members to those lands located in the "closed" portion of an allotted reservation); Montana v. United States, 450 U.S. 544, 557 (1981) (denying the tribe any general authority to regulate non-member hunting and fishing on fee simple lands owned by non-members on an allotted reservation); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978) (denying the authority of a tribal court to exercise criminal jurisdiction over a non-Indian person living on the reservation).
173. This problem is worth much more extended discussion than I can provide here. My understanding of the Marshall legacy cannot render these cases simple, for among other things sometimes their facts simply negate the strength of Indian sovereignty arguments. The most obvious example is Oliphant, in which only about fifty of the nearly 3,000 residents of the reservation were tribal members. See Oliphant, 435 U.S. at 193 n.1. There is considerable force to Vine Deloria's observation that the facts of Oliphant "make the Indian argument not only moot but demonstrate that it was based on an idea of sovereignty having little relation to actual reality." Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31 ARIZ. L. REV. 203, 215 (1989). A clear-statement approach based on Chief Justice Marshall's legacy would, however, retain a baseline of Indian sovereignty and render outcomes like Oliphant deviations from that baseline because of their unique facts. See Robert Clinton, Reservation Specificity and Indian Adjudication: An Essay on the Importance of Limited Contextualism in Indian Law, 8 HAMLINE L. REV. 543, 581-87 (1985). Because of its facts, Oliphant was a horrible test case from the tribal perspective. Resolving the case on its facts would have allowed other tribes the opportunity to make persuasive arguments in support of their territorial exercises of criminal jurisdiction over non-members. Thus, Oliphant could have been resolved as a de facto extinguishment of a particular tribe's "external sovereignty" (its ability to regulate nonmembers), instead of a rule of universal application to all tribes. This would have placed the burden of seeking legal change upon nonmembers, who have greater access to Congress, the institution that should be forced to confront such problems.
174. The decisions cited above in note 161 surely reflect some deviation from undiluted notions of tribal sovereignty because of the allotment process. Yet in its most recent decision, the Court declined an opportunity to distinguish formal reservations that retain a distinctively Indian quality from reservations devastated by allotment. Oklahoma Tax Commission v. Sac & Fox Nation, 113 S. Ct. 1985 (1993), involved a typical allotment setting. An 1867 treaty established the Sac and Fox reservation. Pursuant to an 1891 agreement, the tribe ceded almost all of the reservation to the federal government. Its members had a right to choose an allotment of one quarter section within the ceded area, and the rest of the land became available for non-Indian homesteading. Oklahoma sought to tax the income of tribal members who lived within the boundaries of the original reservation, even if their income was earned on Indian trust land. The Oklahoma Tax Commission attempted to distinguish McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973), which held that Arizona could not tax the income earned on the Navajo reservation by a tribal member who lived there, by arguing that the 1891 agreement had disestablished the Sac and Fox reservation. In a unanimous opinion, Justice O'Connor rejected this argument and concluded that, even if the reservation no longer existed, McClanahan applied to tribal members who lived on and earned their income on federal trust lands. See Sac & Fox, 113 S. Ct. at 1990-91. This holding is directly contrary to the argument made by the United States, as amicus curiae, that tribal immunity from state taxation should depend upon the presence of either a formal reservation or a coherent "reservation community." Brief for the United States as Amicus Curiae at 16-20, Sac & Fox, (No. 92-259). The United States noted that the Navajo involved in McClanahan lived and earned income on "undiminished formal reservation land," id. at 17, and then seized upon language in McClanahan stating that "[i]t followed from th[e] concept of Indian reservations as separate, although dependent nations, that state law could have no role to play within the reservation boundaries." Id. (quoting McClanahan, 411 U.S. at 168). Presumably the United States intended to contrast the large, isolated, distinctively Indian, self-governing, formal reservation of the Navajo - the epitome of Indian sovereignty today - with the common context that resulted from allotment, in which reservation boundaries are not clear, if they have survived at all, the tribe as an entity may exercise little authority, and Indian trust land and non-Indian land held in fee simple are scattered about like contrasting squares on a checkerboard. See, e.g., DeCoteau v. District County Ct., 420 U.S. 425, 429 n.3 (1975). Declining this opportunity to establish contextual limits to tribal sovereignty, the Court in Sac & Fox took as its baseline for tribal-taxation immunity the federal statutory definition of Indian country, which includes Indian allotments as well as de jure reservations and "dependent Indian communities." Sac & Fox, 113 S. Ct. at 1991 (citing 18 U.S.C. § 1151 (1948)). Although this scheme is articulated in a criminal statute, the Court has long borrowed the statutory definition for civil purposes as well. See, e.g., DeCoteau, 420 U.S. at 427 n.2 (citing McClanahan, 411 U.S. at 177 n.17); Kennedy v. District Ct., 400 U.S. 423, 424 n.1 (1971); Williams v. Lee, 358 U.S. 217, 220-22 nn.5, 6 & 10 (1959). In this way, the Court has expanded a congressional jurisdictional arrangement to protect tribes and their members against state jurisdiction and has left to Congress the responsibility to revise that scheme if it works hardship on states. That approach is consistent with the Marshall legacy.
175. Treaty-making with Indians ended in 1871. See Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 566, 566 (codified as amended at 25 U.S.C. § 71 (1988)). Legislation replaced treaties because the House of Representatives demanded a role in federal Indian policy. See HANDBOOK, supra note 28, at 127-28. Since that time, federal Indian law has been incorporated into statutes, regulations, and executive orders.
176. See ROBERT N. CLINTON, NELL JESSUP NEWTON & MONROE E. PRICE, AMERICAN INDIAN LAW: CASES AND MATERIALS 718-19 (3d ed. Michie Co. 1991).
177. See WILKINSON, supra note 17, at 103-05. Even federal regulations, the most mundane of these non-treaty sources of positive law, are promulgated against the backdrop of the executive branch's fiduciary responsibility toward Indians. See, e.g., HANDBOOK, supra note 28, at 225-28. Thus, even if, in some circumstances, they lack much constitutive quality, ambiguities in regulations should also be resolved in favor of Indian interests. See Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1332 (1oth Cir. 1982).
178. See Antoine v. Washington, 420 U.S. 194, 199-200 (1975); HANDBOOK, supra note 28, at 224. Of course, in a situation in which the executive order or statute was truly a unilateral federal act, the "contract of adhesion" methodology is inapt. See id. at 224 n.6o.
179. 490 U.S. 163 (1989).
180. See id. at 173-93.
181. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832).
182. Cotton Petroleum, 490 U.S. at 192.
183. See id. at 189. One wonders what Chief Justice Marshall would say if he could read the following passage from Cotton Petroleum: [A] multiple taxation issue may arise when more than one State attempts to tax the same activity. If a unitary business derives income from several States, each State may only tax the portion of that income that is attributable to activity within its borders. Thus, in such a case, an apportionment formula is necessary in order to identify the scope of the taxpayer's business that is within the taxing jurisdiction of each State. In this case, however, all of Cotton's leases are located entirely within the borders of the State of New Mexico and also within the borders of the Jicarilla Apache Reservation. Indeed, they are also within the borders of the United States. There are, therefore, three different governmental entities, each of which has taxing jurisdiction over all of the non-Indian wells. The federal sovereign has the undoubted power to prohibit taxation of the Tribe's lessees by the Tribe, by the State, or by both, but since it has not exercised that power, concurrent taxing jurisdiction over all of Cotton's on-reservation leases exists. Unless and until Congress provides otherwise, each of the other two sovereigns has taxing jurisdiction over all of Cotton's leases. Id. at 188-89 (citations omitted). How could the Court make such a statement? The question is impossible to answer completely. To some extent, the inconsistency between this language and Chief Justice Marshall's approach may be explained by the opacity and lack of salience of federal Indian law today, which in my judgment allows the Justice responsible for the majority opinion unusually broad latitude in the choice of rationale and wording. Justice Stevens, the author of Cotton Petroleum, is a leading advocate on the Court of overturning much of Chief Justice Marshall's legacy. See infra p. 439. In addition, as explained below, Cotton Petroleum was an odd case in which tribal interests were never adequately incorporated into the legal or factual context. See infra pp. 434-35. It was thus a case in which the context, although technically arising in Indian country, seemed especially non-Indian in character. This contextual warping of the case may have contributed to the extent to which a majority of the Court viewed it as implicating essentially no Indian interests. Whatever may be the explanation for this language in Cotton Petroleum, it does not necessarily signal the end of the Marshall legacy. See infra pp. 435-39.
184. Cotton Petroleum, 490 U.S. at 177.
185. See supra p. 415.
186. As discussed earlier, Gregory v. Ashcroft, 111 S. Ct. 2395 (1991), the principal case creating a somewhat general federalism-protecting clear-statement rule, questioned whether Congress, pursuant to its commerce power, had clearly subjected core state functions to federal regulation. See id. at 2402-03. The other major areas in which a federalism-protecting clear-statement rule has been applied are even more specialized than the setting in Gregory. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (discussing congressional waivers of states' Eleventh Amendment immunity to suits in federal court); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16-17 (1981) (treating federal grants to states). It is hard to see how any of these areas is at all analogous to the Indian law setting.
187. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 542 (1832). Many years after Worcester, the Supreme Court allowed state jurisdiction to creep into Indian country when only non-Indians were involved and the Court found no Indian interest contrary to the exercise of state jurisdiction. The foundational case to this effect is United States v. McBratney, 104 U.S. 621 (1882), which held that a state court has exclusive jurisdiction to prosecute a crime by one non-Indian against another non-Indian that occurred in Indian country, see id. at 624.
188. See Frickey, supra note 59, at 1221.
189. Eskridge, supra note 144, at 1032-34.
190. Sunstein, supra note 144, at 483.
191. The confusion between basing the Indian law canon on structural and constitutive concerns and tying it simply to a public value of protection of disadvantaged groups is itself rooted in Chief Justice Marshall's foundational cases. As noted earlier at p. 392, in Cherokee Nation Chief Justice Marshall stated that tribes were "in a state of pupilage" with a relationship to the United States that "resembles that of a ward to his guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). The Court later embraced this notion of a federal guardianship over subordinate peoples to justify congressional plenary power over tribes. See United States v. Kagama, 118 U.S. 375, 383-84 (1886) ("These Indian Tribes are the wards of the Nation. . . . From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power."). The Court also began to refer to this conception of tribes when restating the Indian law canon. See, e.g., Carpenter v. Shaw, 280 U.S. 363, 367 (1930) ("Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith."). Even Worcester may provide minimal support for this conception, for the "contract of adhesion" theory embodied in a portion of it was based on the premise that the tribe was weaker than, and dependent upon the good faith of, the United States. See supra p. 401. Both of these interpretive developments - rooting the canon upon the helplessness of the Indians and upon a contract of adhesion analogy - influenced the drafting of important Burger Court federal Indian law opinions. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675-76 (1979) (relying on the contract of adhesion analogy); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174 (1973) (describing the canon as primarily designed to protect weak and defenseless people). It is unsurprising, then, that Eskridge and Sunstein, writing near the outset of the Rehnquist Court, conceptualized the Indian law canon as one designed to benefit disadvantaged peoples. Nonetheless, the structural and constitutive flavor of the canon had been reaffirmed in other prominent Burger Court opinions. See Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 846 (1982) ("We have consistently admonished that federal statutes and regulations relating to tribes and tribal activities must be 'construed generously in order to comport with . . . traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence.'" (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144 (1980))). In my judgment, federal Indian law at the dawn of the Rehnquist Court contained a good deal of confusion caused, at least in part, by analogies to other, more familiar areas of law, like constitutional equal protection jurisprudence, and by a failure to distinguish the dictum of Cherokee Nation from the holding of Worcester. The Rehnquist Court has further deflated the Indian law canon. The primary reason is that this Court is hardly interested in generous construction of federal statutes and other provisions to promote the lot of disadvantaged peoples. Cf. Civil Rights Act of 1991, Pub. L. No. 102-166, § 3(4), 105 Stat. 1071 (1991) (overriding several Rehnquist Court opinions that narrowly construed federal statutes prohibiting employment discrimination). Because the structural and constitutive bases for the canon have become obscured, Native Americans have suffered the same interpretive fate as racial minorities. This problem is aggravated by the fact that the tribes' usual opponents in Rehnquist Court cases have been the states, and that, for the current Court, federalism is a public-law value of extreme importance. See supra p. 415.
192. This error is perhaps understandable when one considers that, amidst the pervasive murkiness of federal Indian law, analogies to more familiar public law doctrines become almost irresistible.
193. See Eskridge & Frickey, supra note 147, at 629-44.
194. In my judgment, absent a clear expression of congressional intent, resolution of the federalism-Indian sovereignty conflict should be largely a case-by-case inquiry, as long as the inquiry is governed at the outset by a strong presumption that preserves tribal immunity from state regulation. For a paradigmatic case that embraces this approach, see Bryan v. Itasca County, 426 U.S. 373 (1976), discussed below at pp. 429-32. There may be isolated instances in which, even absent a clear congressional directive, congressional programs have encouraged non-Indians to live in Indian country to the extent that the non-Indians have developed a strong, reasonable reliance interest in freedom from tribal regulation. See cases cited supra note 161. To address this complex scenario would require extensive discussion beyond the scope of this Article. In any event, any inroads into tribal sovereignty should be clearly attributable to Congress, not to unilateral colonial conclusions by the Court.
195. 111 S. Ct. 2578 (1991).
196. See id. at 2581-83.
197. See id. at 2584-86.
198. It was left to the dissent to construct an argument based on the canon. See id. at 2589-90 (Blackmun, J., dissenting).
199. Not every recent case deflated the Indian law canon as starkly as did Cotton Petroleum and Blatchford. See, e.g., County of Yakima v. Yakima Indian Nation, 112 S. Ct. 683, 688 (1992) (purporting to follow a super-strong clear-statement rule adopted in Montana v. Blackfeet Tribe, 471 U.S. 759 (1985), to protect a tribe and its members from state taxation of activities in Indian country). Nonetheless, even a case that articulates a strong canon in form may not give it much weight in fact. The Yakima case is a good example. It involved the incredibly complicated question whether fee simple land on a reservation that is owned by a tribe or its members and that was originally patented pursuant to the General Allotment Act of 1887, see Ch. 119, 24 Stat. 388 (codified as amended in scattered sections of 25 U.S.C.), is subject to taxation by the county in which the reservation resides. To assess the question required consideration of, among other things: (1) the original 1887 Act, which says nothing directly about state taxation of Indian land; (2) a 1906 proviso to it, see 25 U.S.C. § 349 (1988), which suggested that at least some kinds of land in Indian hands may be taxed by the state; (3) a 1934 statute that directly repudiated the allotment policy for the future, but failed to repeal the General Allotment Act formally, see Indian Reorganization Act of 1934, ch. 576, §1, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. §§ 461-479 (1988)); (4) a 1948 federal criminal statute that defined "Indian country," see 18 U.S.C. § 1151 (1988); (5) decisions that concluded that the 1948 statute, although in form only governing federal criminal jurisdiction, created a presumptive barrier against state civil regulation in Indian country notwithstanding earlier statutory regimes, see, e.g., DeCoteau v. District County Ct., 420 U.S. 425, 427 n.2 (1975); (6) a decision that seemed to hold that this territorial protection against state regulation prevailed over the General Allotment Act's provision that authorized state jurisdiction over fee lands that were once in the allotment format, see Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 477-79 (1976); (7) a rather recent decision that invoked a clear-statement rule that provided that congressional authorization of state taxation of tribes and their members in Indian country shall not be found unless Congress has "made its intention to do so unmistakably clear," Montana v. Blackfeet Tribe, 471 U.S. 759, 765 (1985). Eight members of the Court concluded in Yakima that Congress had unequivocally authorized the imposition of the county property tax. In my judgment this conclusion is not necessarily wrong, but vigorous application of the Blackfeet Tribe clear-statement rule noted above, which is formulated similarly to the federalism-protecting rules currently in vogue with the Court, see supra p. 415, could easily have led to a contrary conclusion. See Yakima, 112 S. Ct. at 695-96 (Blackmun, J., concurring in part and dissenting in part). In any event, would it not be surprising if the Court, in an Eleventh Amendment case with a maze of federal statutory and decisional confusion, found a congressional abrogation of the state's immunity? The lesson is that judicial outcomes are governed less by the phraseology of the canon than by the extent to which the canon relates to a context of heightened salience to a majority of the Court.
200. See Strickland, supra note 16, at 718-35.
201. For a short but strongly argued essay along these lines, see Robert A. Williams, Jr., Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, ARIZ. J. INT'L & COMP. L., Fall 1991, at 51, 70-74. For more future-oriented commentary by other prominent scholars, see Robert N. Clinton, Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law, 46 ARK. L. REV. 77, 109-58 (1993); and Nell Jessup Newton, Let a Thousand Policy-Flowers Bloom: Making Indian Policy in the Twenty-First Century, 46 ARK. L. REV. 25, 73-75 (1993).
202. For a short but strongly argued essay along these lines, see Robert A. Williams, Jr., Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, ARIZ. J. INT'L & COMP. L., Fall 1991, at 51, 70-74. For more future-oriented commentary by other prominent scholars, see Robert N. Clinton, Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law, 46 ARK. L. REV. 77, 109-58 (1993); and Nell Jessup Newton, Let a Thousand Policy-Flowers Bloom: Making Indian Policy in the Twenty-First Century, 46 ARK. L. REV. 25, 73-75 (1993).
203. For a short but strongly argued essay along these lines, see Robert A. Williams, Jr., Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, ARIZ. J. INT'L & COMP. L., Fall 1991, at 51, 70-74. For more future-oriented commentary by other prominent scholars, see Robert N. Clinton, Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law, 46 ARK. L. REV. 77, 109-58 (1993); and Nell Jessup Newton, Let a Thousand Policy-Flowers Bloom: Making Indian Policy in the Twenty-First Century, 46 ARK. L. REV. 25, 73-75 (1993).
204. See Frickey, supra note 59, at 1231-40 (discussing relatively recent cases in which the Supreme Court reached pragmatic decisions that promote tribal interests).
205. For example, the Court has refused to apply a super-strong clear-statement rule in the context of congressional abrogation of Indian treaties. See supra note 156.
206. See supra note 161.
207. See Frickey, supra note 59, at 1218-19.
208. One could perform a similar exercise for any number of recent decisions, such as those collected above in note 2. Because most recent cases have involved highly complicated statutory schemes, however, I hope that the reader will forgive me for forgoing them.
209. Act of Aug. 15, 1953, Pub. L. No. 280, 67 Stat. 588 (codified as amended at 18 U.S.C. §§ 1161-1162 (1988); 25 U.S.C. §§ 1321-1322 (1988); 28 U.S.C. § 1360 (1988)).
210. See 18 U.S.C. §n62(a).
211. See 28 U.S.C. § 1360. Other states may opt into this criminal and civil jurisdictional scheme. See 25 U.S.C. §§ 1321-1322 (reflecting a 1968 amendment that conditions state assumption of jurisdiction upon tribal approval).
212. 28 U.S.C. § 1360(a).
213. Id. § 1360(b). In fuller context, subsection (b) states: Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein. Id.
214. 426 U.S. 373 (1976).
215. Id. at 379.
216. For an elaboration on the legislative history of Public Law 280, see Frickey, cited above in note 59, at 1167 n.176.
217. The Court stated that, "in construing this 'admittedly ambiguous' statute, we must be guided by that 'eminently sound and vital canon,' that 'statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.'" Bryan, 426 U.S. at 392 (citations omitted) (quoting federal Indian law cases). The problem with this formulation is that Public Law 280 is hardly a statute passed for the benefit of tribes; the very point of the law is to impose supervening state jurisdiction over Indians in Indian country, contrary to Worcester. Perhaps Public Law 280 was designed to benefit tribal members, at the expense of tribal sovereignty, by bringing more "law and order" to the reservation, but such a reading strips the canon of its constitutive quality.
218. Public Law 280 was adopted by the Congress with perhaps the strongest assimilationist views about federal Indian policy in modern times. In addition to Public Law 280, this Congress passed a concurrent resolution that announced a federal policy of terminating the unique federal status of Indian tribes. See H.R. Con. Res. 108, 83rd Cong., 2d Sess. (1953). Thus, an "imaginative reconstruction" of likely legislative intent - a standard interpretive technique employed in the absence of direct evidence of legislative intent, see, for example, Eskridge & Frickey, cited above in note 112, at 329-30, 357-58 -would suggest that, had Congress thought about the issue, it would have desired the states to tax Indians in Indian country. Moreover, a "purpose" approach to statutory interpretation, see supra pp. 406-07, would also allow the state to tax. The purpose of Public Law 280 was, at a minimum, to curb lawlessness on Indian reservations by bringing them within state law enforcement and by providing state judicial jurisdiction over civil matters arising in Indian country. See Bryan, 426 U.S. at 379-86. The statute provided no federal funding for these new state responsibilities, however. To provide the states with a means to recoup some of their expenses would, therefore, be entirely consistent with the statute's animating purposes; indeed, it might help ensure that the states would take their jurisdictional responsibilities seriously.
219. This conclusion follows from the reserved-rights doctrine. See supra p. 402. The analysis should not differ for tribes that are authorized to hold lands by a federal statute, executive order, or other "treaty substitute." See supra pp. 421-22.
220. Bryan, 426 U.S. at 388 (citations omitted) (quoting United States v. Mazurie, 419 U.S. 544, 557 (1975)).
221. See id. at 388-89 n.14.
222. Id. at 389 n.14 (quoting Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 663 (9th Cir. 1975)).
223. See id. at 389.
224. Id. at 390.
225. See id. at 383-84. As the Court observed, this interpretation is consistent with the title of the provision and some of the sparse legislative history. See id. at 384-86 & n.11. It is also consistent with the subsequent legislative history of Public Law 280, represented by the 1968 amendments to the statute. See id. at 386-87. This construction does leave in doubt the meaning of subsection (b) of the civil jurisdiction provision, quoted above in note 200. As the Court explained, no matter how Public Law 280 is construed, a literal reading of subsection (b) makes little sense. See id. at 390-93. Moreover, whatever its negative implications might suggest, the subsection certainly does not "expressly authorize" state taxation of reservation Indians. Id. at 391.
226. States are among the most successful lobbyists for congressional overrides of Supreme. Court decisions. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 348 (1991).
227. Compare the cases cited above in note 161, in which the Court refused to authorize tribal criminal or civil authority over non-members who live in Indian country.
228. See Ch. 210, 43 Stat. 244 (1924) (codified at 25 U.S.C. § 398 (1988)).
229. Ch. 198, 52 Stat. 347 (1938) (codified as amended at 25 U.S.C. §§ 396(a)-(f) (1988)).
230. Id.
231. 471 U.S. 759 (1985).
232. See id. at 764-68.
233. See id. at 766-68.
234. Id. at 766.
235. Id. (citing Bryan v. Itasca County, 426 U.S. 373, 393 (1976)).
236. Id.
237. Id. at 767.
238. See supra p. 416.
239. 490 U.S. 163 (1989).
240. See supra pp. 422-23.
241. See supra note 172 and accompanying text.
242. Unlike the Blackfeet Reservation in Blackfeet Tribe, which had been created by treaty, the Jicarilla Apache Reservation involved in Cotton Petroleum was created by executive order. Thus, the Indian Oil Act of 1927, ch. 299, 44 Stat. 1347 (codified at 25 U.S.C. § 398 (1988)), rather than the 1924 Act involved in Blackfeet Tribe, governed reservation mineral leases prior to the adoption of the 1938 Act. See id. § 3983. This distinction, however, made no difference in Cotton Petroleum because the 1927 Act, like the 1924 Act, contained an express provision that authorized state taxation. See id. § 398c.
243. See Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 837-39, 846 (1982); Central Mach. Co. v. Arizona State Tax Comm'n, 448 U.S. 160, 164-66 (1980); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 149-51 (1980).
244. See Cotton Petroleum, 490 U.S. at 184-87 (distinguishing prior cases). In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), the Court upheld the authority of the tribe to impose a severance tax upon a non-Indian mineral producer, even though the tribe held the royalty interest in the mineral production as well. See id. at 150-51.
245. See Cotton Petroleum, 490 U.S. at 185-86.
246. The lower courts explicitly addressed the tension between the positions of the contractor and of the tribe. The Court of Appeals of New Mexico noted that "[t]his appeal is unique in that the primary parties differ sharply as to the proper legal approach to apply." Cotton Petroleum v. State, 745 P.2d 1170, 1172 (N.M. Ct. App. 1987). Cotton Petroleum argued that the multiple (tribal and state) taxation impermissibly burdened interstate commerce. See id. Contrary to the position taken by the tribe in an amicus brief, which urged the state court to invalidate the tax on federal Indian law preemption grounds, Cotton Petroleum "contend[ed] that this case is not a preemption case because the economic impact on the Tribe is minimal and is not a primary consideration." Id. In light of this conflict, the tribe urged the Supreme Court to decline to take jurisdiction over the appeal because the case was not an appropriate vehicle to consider the Indian law preemption question. See Brief of the Jicarilla Apache Tribe as Amicus Curiae in Opposition to the Appellants at 3, Cotton Petroleum (No. 87-1327).
247. See Cotton Petroleum v. State, 745 P.2d at 1175. Cotton Petroleum, then, may be much ado about dictum. When the dictum inconsistent with Worcester is swept away, the case turns out to be based on such an implausible setting that it is unlikely to control many future controversies. In a recent opinion, the Ninth Circuit recognized as much. See Gila River Indian Community v. Waddell, 967 F.2d 1404, 1410-12 (9th Cir. 1992) (accepting the tribe's argument and distinguishing Cotton Petroleum on several grounds). In Waddell, the court essentially ignored the wide-ranging dictum in Cotton Petroleum and applied the presumption against state taxation of non-Indian contractors found in the cases that preceded Cotton Petroleum. See id. at 1407-09. It relied upon the facts in the case - which, unsurprisingly, demonstrated that the imposition of the tax would redound to the economic detriment of the tribe and that the state provided no services specifically tied to the activity sought to be taxed - to distinguish Cotton Petroleum and to hold that the state could not tax the contractor. See id. at 1410-12. The facts developed in Waddell are much more likely to be replicated in later cases than the artificial "facts" of Cotton Petroleum.
248. All too often, as Vine Deloria once said, "what is missing in federal Indian law are the Indians." Deloria, supra note 162, at 205.
249. of course, standing alone, Chief Justice Marshall's opinion in Johnson v. McIntosh is subject to the same qualification.
250. Compare Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 155 (1980) (holding that vendors in Indian country must collect state tax on cigarettes sold to non-members, because to hold otherwise would encourage Indian tribes "to market an exemption from state taxation") with California v. Cabazon Band of Mission Indians, 480 U.S. 202, 219-20 (1987) (holding that state laws that regulate bingo do not apply in Indian country, because operations do not offer to non-members an exemption from some state law concerning a product imported to the reservation, but rather represent an investment of value in modern facilities for extended recreational activities by non-members) and New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 341 (1983) (finding a tribal hunting and fishing resort immune from state regulation of non-member patrons and emphasizing that the resort produced permanent benefits for the tribe "far removed" from such situations as "on-reservation sales").
251. See Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 845 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 150 (1980).
252. See Cotton Petroleum, 490 U.S. at 185. Relevant federal expenditures were $1.2 million and tribal oil- and gas-related expenditures were $736,000 for this same period. See id. at 207 n.11 (Blackmun, J., dissenting).
253. "The national trend during the last decade in state-Indian disputes has been toward negotiations between state and tribal governments. The parties, better than any judge, can establish detailed, workable regulatory systems to resolve problems through cooperation and coordination." Charles F. Wilkinson, To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa, 1991 Wis. L. REV. 375, 404.
254. See supra note 52 and accompanying text.
255. For an excellent analysis that reaches a similar conclusion based on a survey of Burger Court opinions, see Clinton, cited above in note 158, passim.
256. Blatchford v. Native Village of Noatak, in S. Ct. 2578 (1991), discussed above at p. 426, involved the Eleventh Amendment immunity of the states, one of the murkiest topics in constitutional law. As explained above in note 188, County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 112 S. Ct. 683 (1992), involved a setting so complicated that to generalize from it will be difficult. South Dakota v. Bourland, 113 S. Ct. 2309 (1993), is potentially more significant. In that case, the Court concluded that a congressional act that eliminated a tribe's preexisting authority to exclude non-members from reservation lands also implicitly abrogated the tribe's authority to regulate non-member usage of those lands. See id. at 2316-18. Ordinarily, there would be nothing exceptional about such a holding, which merely reflected the principle that the loss of a greater power implies the loss of a lesser included power. In my judgment, however, the Marshall legacy counsels against such a result. Following Chief Justice Marshall's approach, tribes should retain all authority that Congress has not explicitly abrogated. Notwithstanding its tension with the Marshall legacy, Bourland may have little effect upon later cases. Most fundamentally, as with any federal Indian law case, Bourland can to some extent be confined to the unique facts and statutory and regulatory texts upon which it was based. The opinion itself suggested further limitations. First, Bourland purported to follow the canonical approach faithfully. See id. at 2316 (stating that "we usually insist that Congress clearly express its intent" to abrogate tribal interests and quoting County of Yakima, 113 S. Ct. at 693, for the proposition that "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit"). Thus, at most, Bourland represents a misapplication, rather than a repudiation, of the legacy. Accordingly, it is far less radical than Cotton Petroleum, which seemed to abandon presumptions that favor the retention of tribal authority over, and the exclusion of state power from, Indian country. Moreover, Bourland contained some caveats about the reach of its holding. See id. at 2316 & n.g (failing to reach the issue whether the tribe would have lost its regulatory authority had the area in question been a "closed" or "pristine" one); id. at 2320 (leaving open the question whether tribal authority could be premised on the consent of non-members or on the importance of that authority to tribal interests). In addition, during the same Term in which it decided Bourland, the Court also decided the Sac & Fox case, in which it jealously guarded tribal immunity from state regulation. See Oklahoma Tax Comm'n v. Sac & Fox Nation, 113 S. Ct. 1985, 1990-91 (1993). Read together, Sac & Fox and Bourland reveal not a Court marching lock-step toward a repudiation of the Marshall legacy, but at most a Court groping haltingly with individual cases in a highly complex area of law.
257. The same explanation applies to the relationship between Cotton Petroleum and Ramah Navajo, the last case before Cotton Petroleum to immunize non-Indian contractors from state taxation. The majority in Ramah Navajo consisted of the Cotton Petroleum dissenters (Justices Brennan, Marshall and Blackmun), two Justices gone from the Court by the time of Cotton Petroleum (Chief Justice Burger and Justice Powell), and Justice O'Connor. An attempt to justify Justice O'Connor's voting pattern in Cotton Petroleum, Blackfeet Tribe, and Ramah Navajo would, in my judgment, depend at least in part on accepting the oddities of the record in Cotton Petroleum to distinguish it from prior cases, without undermining the precedential value of those decisions.
258. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 227 (1987) (Stevens, J., dissenting); Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S. 832, 854-55 (1982) (Rehnquist, J., joined by Stevens, J., dissenting); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 159 (1980) (Stevens, J., dissenting).
259. American Nat'l Red Cross v. S.G., 112 S. Ct. 2465, 2471 n.7 (1992) (responding to the dissent of Justice Scalia, which asserted that the majority was relying upon Chief Justice Marshall's misunderstanding in a later opinion of one of his own earlier opinions).
260. See supra note 108.
261. Perhaps a central reason that some Americans, likely including some jurists, are insensitive to tribal claims is that they cannot conceive of any public policy justification for allowing the sovereignty of tribes to continue. From this vantage point, the fact that this continent was occupied at the point of Columbian contact is merely an accident of history, and nothing in our current value system suggests that the descendants of these non-Western peoples should have any claim to group rights or sovereignty. It has, after all, been five hundred years. Moreover, our current culture prizes equality highly. The unique powers of tribes, as well as the bundle of legal immunities, privileges, and burdens associated with being Native American, cut against the grain of a vision of uniform American citizenship. For a fine explanation of how "[t]he great achievement and noble aspiration of equality is, at the same time and without abandoning its goodness and nobility, destructive of tribes," see Milner S. Ball, Stones of Origin and Constitutional Possibilities, 87 MICH. L. REV. 2280, 2306 (1989). A complete rejoinder to such perceptions would require another article. Ball, above, skillfully takes up the defense of tribal separateness. In addition, Frank Pommersheim has written an outstanding essay that explains how sovereignty over its land is vital to the survival of the tribe. See Frank Pommersheim, The Reservation as Place, 34 S.D. L. REV. 246, 250-51 (1989). For present purposes, note that for the Supreme Court the issue is not whether tribes survive, for under the Court's decisions that issue rests within Congress's plenary power, but how clearly Congress must speak before the status quo in Indian affairs will be deemed to have been changed for the worse for tribes. Chief Justice Marshall sought to force Congress to do the work of further colonization; there is no reason to disrupt this institutional balance between Court and Congress today in any way that disadvantages tribes.
262. Perhaps a central reason that some Americans, likely including some jurists, are insensitive to tribal claims is that they cannot conceive of any public policy justification for allowing the sovereignty of tribes to continue. From this vantage point, the fact that this continent was occupied at the point of Columbian contact is merely an accident of history, and nothing in our current value system suggests that the descendants of these non-Western peoples should have any claim to group rights or sovereignty. It has, after all, been five hundred years. Moreover, our current culture prizes equality highly. The unique powers of tribes, as well as the bundle of legal immunities, privileges, and burdens associated with being Native American, cut against the grain of a vision of uniform American citizenship. For a fine explanation of how "[t]he great achievement and noble aspiration of equality is, at the same time and without abandoning its goodness and nobility, destructive of tribes," see Milner S. Ball, Stones of Origin and Constitutional Possibilities, 87 MICH. L. REV. 2280, 2306 (1989). A complete rejoinder to such perceptions would require another article. Ball, above, skillfully takes up the defense of tribal separateness. In addition, Frank Pommersheim has written an outstanding essay that explains how sovereignty over its land is vital to the survival of the tribe. See Frank Pommersheim, The Reservation as Place, 34 S.D. L. REV. 246, 250-51 (1989). For present purposes, note that for the Supreme Court the issue is not whether tribes survive, for under the Court's decisions that issue rests within Congress's plenary power, but how clearly Congress must speak before the status quo in Indian affairs will be deemed to have been changed for the worse for tribes. Chief Justice Marshall sought to force Congress to do the work of further colonization; there is no reason to disrupt this institutional balance between Court and Congress today in any way that disadvantages tribes.
263. See, e.g., Blatchford v. Native Village of Noatak, 111 S. Ct. 2578, 2589-90 (1991) (Blackmun, J., dissenting) (noting that the Indian law canon dates back to the mid-nineteenth century and is so "rooted in the unique trust relationship between the tribes and the Federal Government that it is inherent in the constitutional plan").
264. PERRY, supra note 8, at 262 (quoting an unidentified Supreme Court Justice).
265. WOODWARD & ARMSTRONG, supra note 9, at 58 (purporting to quote Justice Harlan).