Sunday, September 17, 2006

Fletcher on the Marshall Trilogy

Marshall Matthew L.M. Fletcher of the Michigan State University College of Law has recently posted The Iron Cold of the Marshall Trilogy on ssrn.  "The Cold Iron of the Marshall Triology," which takes its title from a Louise Erdrich poem, will appear this year in the North Dakota Law Review.

Here is Professor Fletcher's abstract:

Students of American Indian law cannot -- and should not -- escape from reading the three famous opinions of Chief Justice John Marshall that expounded for the first time in the halls of the United States Supreme Court the bases for federal constitutional common law - the opinions we now refer to as the "Marshall Trilogy." These three decisions, Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, identified the contours of American Indian law as they remain today in the modern era. These opinions are the house in which American Indian advocates, leaders, and policymakers rise each morning -- and it is house filled with an iron cold of the deepest hour.

This essay is an attempt to reexamine the Trilogy for their continuing relevance to students of modern American Indian Law. The pedagogical value of the Marshall Trilogy goes far beyond the mere holdings of the cases. That is not to say the holdings are not significant - they are. But, as Justice Baldwin wrote in Cherokee Nation, the "reasons" for the holdings are more significant than the holdings themselves. The foundations of the current debates over plenary power, state authority in Indian Country, the special canon of construction for Indian treaties, implicit divestiture, the trust doctrine, the political status of Indians and Indian tribes, and others are all to be found within the Marshall Trilogy. For a new student of Federal Indian Law, these three cases are a microcosm of the entire course to come.

This essay reassesses the Trilogy using several methodologies of legal analysis, including legal history, law and literature (and mythology), and law and economics.

I'm still reading this; he engages with Eric Kades' article on Johnson, which has gotten a lot of attention in recent years.  I hope to set aside some time later in the semester to talk a little bit about Fletcher's important article.

The image of John Marhsall is from our friends at wikipedia.

Alfred L. Brophy
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