Steve Russell: Crafting federal Indian law out of next to nothing

"All Americans should know the story of Marbury v. Madison, but few do.

All American Indians should know the story for a whole other set of reasons.

John Marshall, the architect of Marbury who used it to arrogate the power of judicial review from next to nothing is also the man who, in three seminal cases, crafted the foundations of federal Indian law from next to nothing. Those foundations would, long after Marshall had gone to his reward, support the arrogation of “plenary power” to Congress over Indian nations.

Before he set about the task of constructing what most academics call federal Indian law but many Indian academics call federal Indian control law, Marshall made clear that the same power to overrule unconstitutional laws applied to the states. In Fletcher v. Peck (1810), Marshall’s Supreme Court declared unconstitutional Georgia’s attempt to rescind the sale of lands ancestral to the Cherokee and Creek peoples (among others) in spite of the fact that virtually the entire Georgia legislature had been bribed to accomplish the sale in the first place.

Indians were bystanders in Fletcher v. Peck, but they did get sideswiped when Marshall wrote “the majority of the court is of the opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to… (state ownership).”"

Get the Story:
Steve Russell: Meet The Father of American Indian Control Law: John Marshall (Indian Country Today 7/6)

Also Today:
Steve Russell: Calling for an Indian Theseus (Indian Country Today 7/6)

Related Stories:
Steve Russell: Supreme Court opens the doors to bigger scandals (7/2)

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