It Must Be Nice To Have John Marshall On Your Side, Except for Indian Law
As a general matter, the Supreme Court never passes a chance to favorably cite an opinion by Chief Justice Marshall. Bonus points for citing Marbury or McCulloch. Indeed, Trump v. Vance invoked Marshall’s decision opinion in United States v. Burr over and over and over again. It must be nice to have John Marshall on your side–except, apparently, for Indian law.
The Great Chief justice has something of a mixed record with respect to Indians. If there is ever a reason to cancel Chief Justice Marshall, it would be for his decision in Johnson v. McIntosh (1823). In that case, Marshall referred to Native Americans as “fierce savages.” Still, perhaps Marshall redeemed himself in Worcester v. Georgia (1832), in which he ruled for the tribes.
How, then, should the modern Court treat Marshall? In Oklahoma v. Castro-Huerta, Justice Gorsuch’s dissent embraces Worcester-era Marshall, and rejects McIntosh-era Marshall:
In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license. Really, the prosecution was a show of force—an attempt by the State to demonstrate its authority over tribal lands. Speaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign. See Worcester v. Georgia, 6 Pet. 515, 561 (1832). The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it. But in time, Worcester came to be recognized as one of this Court’s finer hours. The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains
Article from Reason.com
