The Indian Law Legacy of Thurgood Marshall

F. Knowles

• Publisher: Palgrave Pivot
• Year: 2014
• Print ISBN:
  9781137434920
• eBook ISBN:
  9781137433398
• Topic: Politique et relations internationales
• Subtopic: Droit public

The book tracks the development of Justice Thurgood Marshall's rationale and reason regarding Indian law. Drawing from Marshall's career preceding his appointment to the Supreme Court, it is anticipated that Marshall's views In Indian law would be consistent with his previous role as a champion of the disenfranchised in America.

1

Introduction: Marshall and Majoritarianism

Abstract: This chapter provides an introduction to Thurgood Marshall’s career and rise to the Court, the notion of Majoritarianism, and the work, itself, as a whole. Tsosie’s view and definition of Majoritarianism is used to provide a contrast that allows Marshall’s philosophy to be drawn in sharp detail.

Knowles, F. E., Jr. The Indian Law Legacy of Thurgood Marshall. New York: Palgrave Macmillan, 2014. DOI: 10.1057/9781137433398.0002.

One will find, very early in one’s study of federal Indian law, that Chief Justice John Marshall was instrumental in defining early federal policy vis-`a- vis the “Indian problem.” Indeed, Chief Justice Marshall presided over the Court that decided the three cases that would collectively become known as the Marshall Trilogy: Johnson v M’Intosh,¹ Cherokee Nation v Georgia,² and Worcester v Georgia.³ The subject of this work, however, is not John Marshall. Chief Justice John Marshall and Associate Justice Thurgood Marshall were the products of two different worlds, separated by race, privilege, and 150 years of American history and jurisprudence. Associate Justice Marshall was certainly informed by many of the notions held by Chief Justice Marshall as the aforementioned Marshall Trilogy define the discourse on the legal status of Indians in America. Although Thurgood Marshall understood precedent as a foundation of American jurisprudence, he was also of independent intellect and committed to the cause of social justice. As Tsosie suggests, “(a)gainst America’s often majoritarian vision of equal justice, Justice Thurgood Marshall remains the archetypical proponent of minority civil rights in his many roles as advocate, judge, and then American’s first African American Supreme Court Justice.”⁴

For much of the 20th century, Thurgood Marshall was a pioneer in advocacy for the disenfranchised, ground under the wheels of American Justice. In view of his activism as a law student at Howard, a protégé of Charles Houston, and then as advocate and chief counsel for the NAACP (National Association for the Advancement of Colored People) Legal Defense Fund (LDF), no one can question his legitimacy as a catalyst for social justice. What then of his career on the Supreme Court? How might that passion for social justice translate in his decisions of our highest court? An examination of his published opinions in cases involving Indian law should show the extent to which that idealism matured as legal principle.

This work endeavors, then, to examine 19 published Indian law decisions, dating from 1970 to 1987. Using the analytical paradigms suggested by Laurence, Hanna, and Tsosie, these decisions will be mined to expose the reasoning and logic that informed them. Some of Marshall’s opinions are written for the majority, at times unanimous, but generally contentious. Other of his opinions come from his published dissents. One finds Marshall frequently at odds with Justice Powell and Justice Rehnquist. What emerges is, with rare exception, a consistency of thought and reason throughout Associate Justice Marshall’s opinions. His rationale was based on a consistent view of sovereignty, an adherence to the canon of construction in Indian law, and his view that legislative intent must be clearly articulated. Undergirding all of his work was the knowledge that American Justice had and was frequently used to promote injustice and social inequity.

Majoritarian, as used above by Tsosie, refers to the “historical practice in the United States to formulate its policies according to the will of the political majority.”⁵ Tsosie suggests that Associate Justice Marshall depended on the foundation provided by Chief Justice Marshall in the Marshall Trilogy to inform his own thought in Indian Law. Further, she states that the state of Indian Nations at the time of her writing (1994) is largely defined by Justice Marshall’s rulings and opinions in Indian Law.⁶

Tsosie cites the work of Jeffrey⁷ in suggesting that “(a)n increasingly popular ideology supposes that the ‘political unity of a nation is based on its having one common understanding of justice’.”⁸ Jeffrey had argued that Associate Justice Marshall’s ruling in Santa Clara Pueblo v Martinez⁹ was inconsistent with the “truth and . . . moral superiority of the principles of the Declaration of Independence.”¹⁰

Referring to the backlash against the assertion of Indian rights, Tsosie states that “(i)ronically, the same populist movement that would destroy Indian sovereignty couches its philosophy in terms of ‘civil rights’ and asserts that the idea of tribal governments is inherently discriminatory.”¹¹ We see this in recent conflicts regarding fishing rights and gaming proposals, in which the individual property rights of members of the dominant society are asserted over the collective rights of the Indian tribe or group.

This “anti-sovereignty” movement is largely supported by non-Indian owners “fee land”, within reservation boundaries, seeking to escape tribal regulation, and by commercial industries seeking control over natural resources, such as fishery and timber resources, presently managed, in whole or in part, by tribal government.¹²

Tsosie suggests that Associate Justice Marshall “recognized the dangers of a majoritarian vision of justice in a pluralistic society” and argues that his legacy, and indeed progress in judicial acknowledgement are threatened by the trend in 1994, toward majoritarian absolutism.¹³ This trend does not seem to have subsided since the time of Tsosie’s writing.

Tsosie makes reference to the Constitution as the “Sacred Text,” citing Barsh and Henderson¹⁴ in suggesting that America is a nation of Constitution worshippers, imbuing the document with sanctity as if it were divinely ordained.¹⁵ It is not surprising then that many take an originalist perspective in forming a very literal and rigid interpretation. Associate Justice Marshall perceived the Constitution as a fluid and living document, and not as a rigid guideline. He would not be inclined toward the originalist interpretation as championed by Justices Scalia and Thomas of today’s Court. His view evolved from his commitment to the use of the law and courts to challenge social inequalities and injustice, and his intimate knowledge of the manner in which the Constitution, when interpreted through an originalist perspective had condoned, if not caused many of those injustices.¹⁶

Tsosie cites Williams¹⁷ in pointing out the correlation between African Americans and Native Americans concerning the disconnect between reality and the “aspirational” language of the Constitution. Clearly, there have been differences, given the political nature of tribal identification as opposed to the strictly racial and ethnic designation. “However, the two groups have shared a common conception in Amer...

Table of contents

• Cover
• Title
• 1  Introduction: Marshall and Majoritarianism
• 2  Historical Background of Indian Law
• 3  Laurences Analytical Paradigm
• 4  The Case Law
• 5  Laurences Conclusions
• 6  Additional Case Law
• 7  Summary and Conclusion
• Appendix: Voting Blocs in Cited Cases
• Bibliography
• Index