The Yale Law Journal

January 2024

The Law-of-Nations Origins of the Marshall Trilogy

Federal Indian LawLegal History

abstract. Federal Indian law is sometimes seen as a purely domestic part of American law, but its origins are in the law of nations. The Marshall Trilogy—Johnson v. M’Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, three Supreme Court decisions authored by Chief Justice Marshall that are foundational for American federal Indian law—relied on law-of-nations sources. In particular, The Law of Nations, an eighteenth-century treatise by Emer de Vattel, provided a central influence on Marshall’s opinion in Worcester. In early national American legal thought, Vattel was a leading authority on the law governing the rights and obligations subsisting among nations. Recognizing the important role that the law of nations played in the foundations of federal Indian law under-scores the deep roots of tribal sovereignty in American law and clarifies current doctrinal disputes.

author. Yale Law School, J.D. 2023; Johns Hopkins University, Department of History, Ph.D. expected; University of Cambridge, M.Phil. 2020; University of Pennsylvania, B.A. 2019. I would like to thank Gerald Torres, Samuel Moyn, David Froomkin, Kyle Ranieri, and the editors of the Yale Law Journal for their many helpful comments and suggestions.


Three cases, Johnson v. M’Intosh,1 decided in 1823; Cherokee Nation v. Georgia,2 decided in 1831; and Worcester v. Georgia,3 decided in 1832, all authored by Chief Justice Marshall and collectively known as the Marshall Trilogy, form the basis of American federal Indian law.4 Over two hundred years after Johnson, federal Indian law continues to be the subject of significant contestation at the Supreme Court. In 2020, writing for the majority in McGirt v. Oklahoma, Justice Gorsuch reiterated the continuing vitality of Worcester: “Indian Tribes [are] ‘distinct political communities, having territorial boundaries, within which their authority is exclusive . . . which is not only acknowledged, but guarantied [sic] by the United States,’ a power dependent on and subject to no state authority.”5 The tribal sovereignty envisioned by Worcester is more expansive than current doctrine provides,6 but Worcester’s “broad principles” continue “to be accepted as law.”7 In 2022, however, writing for the majority in Oklahoma v. Castro-Huerta, Justice Kavanaugh wrote that “the ‘general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgiahas yielded to closer analysis’” and that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law.”8 More recently, Justice Barrett’s majority opinion in Haaland v. Brackeen acknowledged the muddy state of current case law: “We have often sustained Indian legislation without specifying the source of Congress’s power, and we have insisted that Congress’s power has limits without saying what they are.”9 Barrett, after raising this uncertainty, declined to resolve it. At a time of significant tumult in federal Indian law doctrine, a return to the origins of federal Indian law can provide a firmer foundation for understanding the current legal status of Native Nations.

Federal Indian law is sometimes seen as a purely domestic part of American law, but the foundations of federal Indian law are built on the law of nations. In the early national period, the field now known as international law was referred to as the law of nations.10 While domestic-law sources, such as the Constitution, statutes, and case law, are relatively scarce in the Marshall Trilogy, law-of-nations sources, such as the custom of nations, treaties,and law-of-nations treatises,11 are abundant. In particular, The Law of Nations, a treatise by Emer de Vattel, proved a central influence on Worcester.Recognizing the important role of the law of nations in the Marshall Trilogy helps us better to understand tribal sovereignty and to recognize its persisting vitality in American law.

Many scholars have emphasized the importance of sovereignty in federal Indian law,12 and Justice Gorsuch has given eloquent expression to these arguments in recent
13 The role of Vattel as an influence on the Marshall Trilogy, however, has inspired comparatively little analysis.14 While previous scholars have listed Vattel (alongside Francisco de Vitoria and Hugo Grotius)15 as an influence on the Marshall Trilogy and noted the importance of international law for federal Indian law,16 the depth of Vattel’s influence has escaped scholarly attention. There has also been a lack of scholarly attention to Marshall’s innovative use of Vattel’s The Law of Nations—which explicitly approved of British-American colonialism17—in the service of tribal sovereignty.18

While scholars have previously recognized that the law of nations has influenced federal Indian law, they have generally overlooked Vattel. Felix S. Cohen, often called the “father of federal Indian law,”19 traced the origins of American federal Indian law to Spain, pointing to Vitoria.20 Subsequent scholars, generally citing Cohen, credit Grotius and Vitoria as influences on the Marshall Trilogy in the same breath as
21 Unlike Vitoria and Grotius, Chief Justice Marshall actually cited Vattel in the Trilogy. While my argument is based largely on citations, Cohen’s argument is based on broad and abstract influences. Cohen contends that the “first principle of our own Indian law, the equality of races,” can be traced to Vitoria.22 Whether or not one accepts Cohen’s argument that “one may find in the writings of Vitoria the first clear formulation of the principle of tribal self-government,”23 the more direct influence of Vattel matters. When Marshall cited Vattel,24 he cited him as an authority on the law of nations in Europe. Applying the law of nations to federal Indian law suggests not only that Native Nations have a right to self-government but that the same law of nations that governs relations among European states also protects tribal sovereignty. According to Vattel, limited national sovereignty persists even in the absence of full sovereignty.25 Likewise, even though Native Nations lack full sovereignty, tribal sovereignty persists.

The law-of-nations reasoning of the Marshall Trilogy demonstrates the centrality of tribal sovereignty to federal Indian law. The “law of domestic nations,”26 fashioned by Chief Justice Marshall to manage American colonialism, did not categorize Native Nations as distinct nations out of caprice or carelessness. Rather, Marshall carefully applied law-of-nations principles from Vattel27 to the American colonial context, categorizing Native Nations as domestic nations and acknowledging the power of the federal government over them, but still affirming their sovereignty.28 The sovereignty of Native Nations animated the Marshall Trilogy and remains foundational to federal Indian law.

The law-of-nations origins of federal Indian law have important ramifications for contemporary doctrine, providing further evidence for currently contested claims. First, “Indian” is a political category that is not subject to constitutional limits on racial classifications.29 Second, Congress’s “plenary” power should be understood to be “exclusive,” because it excludes the states, but it should not be understood to be “absolute,” because the Constitution limits Congress’s power.30 Third, the Indian Commerce Clause, like the Foreign Commerce Clause, confers more expansive federal authority than the Interstate Commerce Clause, but none of the three Commerce Clauses grant Congress the authority to extinguish sovereignty.31

The arguments in this Comment also have important originalist implications. While there are plentiful nonoriginalist reasons to support tribal sovereignty, the evidence demonstrates that the Founders understood federal Indian law to be rooted in law-of-nations conceptions of sovereignty. Scholars and jurists have provided originalist arguments for the persistence of tribal sovereignty,32 the political nature of Indian status,33 and the federal government’s exclusive—but not absolute—power over Indian affairs.34 The important influence of Vattel on the origins of federal Indian law adds further weight to these positions.

This Comment proceeds in three parts. Part I contextualizes the Marshall Trilogy and canvasses scholarship asserting the domestic nature of federal Indian law. Part II demonstrates the centrality of the law of nations to the Marshall Trilogy and the influence of Vattel in particular. Part III explores the implications of these arguments for contemporary federal Indian law doctrine.