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excerpted from: Rebecca Tsosie, Separate Sovereigns, Civil Rights, and the Sacred Text: the Legacy of Justice Thurgood Marshall's Indian Law Jurisprudence, 26 Arizona State Law Journal 495 (Summer, 1994) (Footnotes) (Full Document)


Rebecca TsosieWhen Justice Thurgood Marshall stepped down from the Supreme Court, many people mourned the loss of his vision of equality, civil rights, and justice. Marshall's vision lives on in his opinions, however, providing a legacy for future courts grappling with difficult issues such as sovereignty, civil rights, federalism, and individual liberty. Against America's often majoritarian vision of equal justice, Justice Thurgood Marshall remains the archetypal proponent of minority civil rights in his many roles as advocate, judge, and America's first African American Supreme Court Justice.

It is perhaps fitting, then, that Justice Marshall authored many opinions dealing with the status of American Indian nations in American society. After a bitter history of warfare, extermination, and assimilationist federal policy, Indian nations continue to exist as distinct governments, struggling to retain their identity as “sovereign”—or at least “quasi-sovereign”—nations within the overarching federal structure. Despite the overt racism and paternalism that fueled federal Indian law in the nineteenth century, Indian nations emerged in the twentieth century and the jurisprudence of Justice Marshall as separate governments within the federal system, possessing a measure of power independent of the states and, in some cases, even of the federal government. Justice Marshall's opinions, built on the earlier jurisprudence of Chief Justice John Marshall in the “Marshall Trilogy,” have largely defined the status of Indian nations in the modern era.

Given the recent changes in the composition of the Supreme Court, Indian nations and their advocates remain perplexed as to the direction that the new Court will take. Will it adhere to Justice Marshall's vision of tribal sovereignty, which regarded Indian nations as separate governments within the federal system? Or will that vision become a relic of the past, buried in the political furor over whether, indeed, Indian nations have the right to exist as separate sovereigns at all? An increasingly popular ideology supposes that the “political unity of a nation is based on its having one common understanding of justice.” That understanding, of course, incorporates the vision held by the prevailing political forces of society. Across the nation, non-Indians have begun to form lobbying organizations arguing that “they are being denied equal rights at the expense of Indian rights.” Ironically, 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.

Justice Marshall recognized the dangers of a majoritarian vision of justice in a pluralistic society. His Indian law jurisprudence presents a complex picture of the disparate strands of sovereignty, civil rights, and the mandates of the Constitution in contemporary legal discourse. This article will discuss Marshall's Indian law jurisprudence, with special attention to his vision of tribal sovereignty, taking the proverbial “step back” to examine a body of legal doctrine that is still recent in our memories, but is currently endangered by the majoritarian trend of a new era. In seeking to explain the importance of Marshall's jurisprudence, this article attempts to correlate the essential themes that emerge from his opinions to the overarching legal doctrines pertaining to sovereignty, self-determination, and rights theory. In doing so, this Article attempts not to recreate the fabric of Marshall's opinions, but to provide a context to understand them.

. . .

Justice Marshall's jurisprudence was built largely upon his experience as a lawyer in the early years of the civil rights movement, and as the architect of the litigation that eventually resulted in the most famous constitutional law decision of the modern era, Brown v. Board of Education. Mark Tushnet describes the civil rights litigation of the 1940s and 1950s as reflecting “the duality that W.E.B. Du Bois said described the lives of all African-Americans: ‘an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body.’ ” He claims that this duality “went to the heart” of Marshall's work as a civil rights lawyer because he and his colleagues in the civil rights movement were “committed to enforcing a Constitution whose promises had been repeatedly betrayed.”

American legal ideology is premised on a “Sacred Text”—the Constitution. As Russel Barsh and James Henderson note, America is a nation composed of “Constitution worshippers”; “[f]or Americans the Constitution is not merely a compact. It is imbued with an aura of uniqueness, and the history of its formation is the closest approximation to a myth of American national origin.” Not surprisingly, such an exalted vision of our national origins, embodied in icons such as the Statue of Liberty and the Liberty Bell, cannot readily encompass the darker side of our national heritage, the history of those who have been “outsiders” in American society, including African Americans and American Indians.

Recognizing this paradox, Justice Marshall refused to glorify the Constitution or find that it had any “fixed meaning” at the time of its inception. To the contrary, he said, the Framers devised a government that was “defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today.” Indeed, at the time the Constitution was adopted, the phrase “We the People” did not include many groups in America, including African American slaves and American Indians.

Marshall points to Chief Justice Taney's words in the Dred Scott case as more illustrative of the Framers' “original intent.” Taney refused to find that the Framers had intended slaves to be “constituent members of the sovereignty,” and thus included among “We the People,” because “[t]hey had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race.” According to Taney, this “inferiority” justified “that the negro might justly and lawfully be reduced to slavery for his benefit.” In short, for Taney, there was no evidence to counter “the correctness of the prevailing opinion” that the African slave was merely “an article of property” to be “held, and bought and sold as such.”

The paradox between the aspirational language of the Constitution and the reality of the African Americans' place in American legal ideology strongly correlates to the experience of American Indians. Because of the tribes' separate governmental status, the experience of American Indians has differed from that of African Americans in many respects. However, the two groups have shared a common conception in American legal ideology as “inferior” people, subject to conquest, assimilation, and mistreatment for being “other” than white and “civilized.” As Professor Robert Williams notes, “[t]ribalism's normative deficiency and unassimilability with white civilization in the eastern United States was a consistently articulated and dominant premise of post-Revolutionary Indian policy discourses.” Congress and the Court stressed the “differences between European ‘civilization’ and the New World savage in order to intensify the separation by which the Indian was placed outside white society.”

Not surprisingly, therefore, the racist underpinnings of Dred Scott found analogues in the Supreme Court's nineteenth century Indian law decisions justifying the colonization and assimilation of Indian nations. In Johnson v. M'Intosh, for example, Chief Justice John Marshall held that the Indian nations had been divested of all rights to their ancestral lands save the “right of occupancy” by the mere fact of North America's “discovery” by European nations. As justification, Chief Justice Marshall claimed that “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.” Similarly, the Supreme Court in United States v. Sandoval found that the Pueblo Tribes were “Indians” for purposes of federal liquor laws, despite their sedentary village lifestyle, because they shared common cultural characteristics with the more nomadic tribes as “simple, uninformed and inferior people” who were “chiefly governed according to the crude customs inherited from their ancestors.”

Acknowledging the truth about the origins of American legal ideology, Justice Thurgood Marshall believed that the Constitution was a “living document” and that the law was a tool to effect change. Just as American society evolved to meet new challenges, “new constitutional principles” had to be articulated in response. Some scholars have equated Thurgood Marshall's judicial philosophy with that of the Legal Realists, who were influential during the New Deal years. Marshall, like the Legal Realists, believed that law must take into account the “social circumstances out of which disputes grow” and that “the law must be viewed, not as a set of abstract and socially unrelated commands of the sovereign, but as an effective instrument of social policy.” For Marshall, one of the most crucial challenges was to form legal doctrines that would incorporate those who had traditionally been seen as “outsiders” in white society and America's legal ideology. Because Marshall was firmly committed to precedent and the “rule of law,” this process simultaneously had to take into account “where we came from” and “where we ought to be.”

Traditionally “outsiders” in the American legal system, Indian nations provided a unique challenge to Justice Marshall's larger task of incorporating those who have historically been “voiceless” in the legal process. Justice Marshall saw American Indians as more than mere “racial minorities.” His Indian law opinions largely concern the role of Indian nations as separate sovereigns within the federal system. This article will discuss how Justice Marshall “placed” Indian nations within the federal system in the context of the challenges to tribal sovereignty presented by the cases before him. Justice Marshall considered challenges to tribal sovereignty arising in two separate contexts: first, the extent to which tribal sovereignty bars intrusion of state jurisdiction within Indian territory; and second, the extent to which tribal sovereignty is limited by the “overriding sovereignty” of the federal government.

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Indian nations today pose a unique challenge in America's quest to be a truly egalitarian nation representing an undeniably pluralistic society. The concept of Indians as wards of the federal government raised concern in post-Brown America that the government was maintaining “a sort of federally sanctioned serfdom in the face of a broad based expansion of civil rights.” As American political discourse has become increasingly “individualistic, rights-centered, and insular,” American tolerance for different cultural values, such as community responsibility and tribalism, has diminished. Indian nations increasingly have been faced with rights-based arguments attacking the legitimacy of their actions. As Professor Robert Clinton has noted, “[t]o Americans and many western observers ... notions of group or collective rights do not sit well with Euro-American notions of liberty and individual freedom.” According to Clinton, “[t]he Western view of rights imagines that the individual antedates the state.” Organized government represents “a compact among the people” by which they delegate certain aspects of individual autonomy to the state government in exchange for the “peace, security and well-being established by the organized society.” In Western thinking, therefore, the individual is largely autonomous, existing separate and apart from the state and the rest of society.

Tribalism, however, generally encompasses a very different concept of rights. The individual does not “exist isolated from others in some mythic, disorganized state of nature,” rather:
human beings are born into a closely linked and integrated network of family, kinship, social and political relations. One's clan, kinship and family identities are part of one's personal identity and one's rights and responsibilities exist only within the framework of such familial, social and tribal networks. Nonwestern thinkers, therefore, naturally think of their rights as part of a group. Certain rights exist within each social group and other rights and responsibilities are attendant to their relations with members of other groups within the web of associations that forms the tribe or the state.... Thus, an individual's right to autonomy is not a right against organized society, as it is in western thought, but a right one has because of one's membership in the family, kinship and associational webs of society.

The Western liberal view of individual rights directly conflicts with the tribal view of social connection and collective rights, and promotes an intolerance for different policies, such as the tribal membership policy at issue in Martinez. The western view of rights, with its assimilationist focus, provides the foundation for Professor Jeffrey's assertion that the political unity of America is based on its having “one common understanding of justice” that emanates from the “natural law” basis of the American Constitution and the civil rights guaranteed to all Americans. Under this view, the separate political status of Indian nations and their right of self-determination defeat civil rights because they “reject the teaching on natural rights which lies at the heart of the American regime.” Jeffrey believes that there is no moral obligation to extend civil rights to any ethnic group, including American Indians, “if the moral foundations of the American Republic are not superior to ancestral claims, or if all values are equal merely by virtue of being self-determined.”

Just as Americans have adopted the Constitution as a “Sacred Text,” they have deified “individual rights” as a moral imperative. However, America is the homeland of many cultures and of three separate sovereigns: state, tribal, and federal, each with a separate history and set of duties and responsibilities to the others. The primary duty, of course, is tolerance for their differences and mutual respect for the political and cultural integrity of each sovereign. However, a “kind of blind spot seems to float across our political vision where the communal and social, as distinct from individual or strictly economic, dimensions of a problem are concerned.” Americans are trained, after all, to view themselves as one “monolithic” society, rather than as several interrelated societies.

Justice Marshall recognized that the Constitution was defective from its inception because its enlightened protections of human rights did not extend to those within the United States who did not qualify for inclusion as “We the People” because of their supposedly inferior status. Despite the popular notion that the Constitution provides a universal voice, “this voice does not speak for everyone, but for a political faction trying to constitute itself as a unit of many disparate voices; its power lasts only as long as the contradictory voices remain silenced.” Professor Harris describes this attempt to “universalize” our disparate experiences as “essentialism” and claims that it is what allows “theorists to discuss liberty, property, and rights in the aspirational mode of liberalism with no connection to what those concepts mean in real people's lives.”

Justice Marshall was committed to a more realistic view of America. He sought to give a voice to those in society who had historically been excluded from the legal process. Justice Marshall saw the duality of American Indian nations much as he saw the duality of African American citizenship, both as a historical legacy and as a contemporary reality. He possessed a vision of tribal sovereignty that took into account this duality and attempted to place Indian nations as separate governments within the federal system, in accordance with the mandates of Congress.

Justice Marshall considered the Constitution to be a living document and the law to be an instrument of social policy. Under this view, change is not only acceptable, it is fundamental to the growth of democracy. The legacy of Justice Marshall's Indian law jurisprudence is its recognition and acceptance of the unique status of the Indian nations as separate governments within the federal system and as vital repositories of distinct cultures that are integral parts of America. The Indian nations are indisputably different than they were before their physical incorporation into the United States; the overriding sovereignty of the federal government now controls, in large part, the exercise of tribal sovereignty. However, as Justice Marshall realized, this overriding federal sovereignty is not an excuse to use America's absolutist vision of rights as a tool to destroy the very pluralism and multiculturalism that America purports to cherish.

Associate Professor of Law, Arizona State University.