The Law-of-Nations Origins of the Marshall Trilogy
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.
Introduction
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. Georgia’‘has 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
cases.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
Vattel.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.
See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980) (“Long ago the Court departed from Mr. Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries, Worcester v Georgia, 6 Pet. 515, 561 (1832).” (footnote omitted)); Dylan R. Hedden-Nicely, The Reports of My Death Are Greatly Exaggerated: The Continued Vitality of Worcester v. Georgia, 52 Sw. L. Rev. 255, 258 (2023) (“[T]he Court has abandoned Worcester’s categorical prohibition on state jurisdiction in Indian country . . . .”).
Hedden-Nicely, supra note 6, at 258 (“[U]ntil the Court ‘openly avow[s]’ its intent to overrule Worcester, we must remain faithful to its narrow authorization of state power in Indian country, as well as its broad recognition of tribal sovereignty and federal primacy over the relationship with tribal nations.” (quoting Worcester, 31 U.S. (6 Pet.) at 554)); see also Williams v. Lee, 358 U.S. 217, 219 (1959) (“Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained.”).
Emer de Vattel provides a definition of the law of nations (le droit des gens). 1 E. de Vattel, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury 67 (Béla Kapossy & Richard Whatmore eds., Thomas Nugent trans., Liberty Fund 2008) (1797) [hereinafter Vattel, The Law of Nations] (“The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.”); 1 E. de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains 2 (London 1758) (1757) (“Le Droit des Gens est la science du droit qui a lieu entre les nations, ou Etats, & des obligations qui répondent à ce droit.”). All subsequent references to Vattel will be to the 1797 edition. In this Comment, I will use “law of nations” when discussing the Marshall Trilogy and “international law” when discussing current doctrine, reflecting contemporary usages. Jeremy Bentham coined “international law” in the late eighteenth century. Hidemi Suganami, A Note on the Origin of the Word “International,” 4 Brit. J. Int’l Stud. 226, 226 (1978); Mark Weston Janis, America and the Law of Nations 1776-1939, at 10-15 (2010). The transition from “law of nations” to “international law” was gradual. See Morton A. Kaplan & Nicholas deB. Katzenbach, The Political Foundations of International Law 62 (1961) (“In the century from 1815 to 1914 the law of nations became international law.”); Jennifer Pitts, Boundaries of the International: Law and Empire 25 (2018) (“Vattel’s Droit des gens was arguably the most globally significant work of European political thought through the 1830s, and in the changing reception of Vattel we can track the ragged transition from the intellectual world of the eighteenth-century law of nations to that of the professional international lawyers of the later nineteenth century.”).
See, e.g., Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1796 (2019); Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1059 (2015); Seth Davis, Eric Biber & Elena Kempf, Persisting Sovereignties, 170 U. Pa. L. Rev. 549, 557 (2022).
See Oklahoma v. Castro-Huerta, 597 U.S. 629, 667-68 (2022) (Gorsuch, J., dissenting) (“Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.”); Haaland v. Brackeen, 599 U.S. 255, 332 (2023) (Gorsuch, J., concurring).
But see Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 265-66 (2009) (briefly discussing Vattel’s influence on the Marshall Trilogy); S. James Anaya, Indigenous Peoples in International Law 16-19 (1996) (same); Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings, 70 Stan. L. Rev. 1025, 1043-44 (2018) (discussing Vattel’s influence on Justice Thompson’s dissent in Cherokee Nation); Ian Hunter, Vattel in Revolutionary America: From the Rules of War to the Rule of Law, in Between Indigenous and Settler Governance 12, 20-22 (Lisa Ford & Tim Rowse eds., 2013) (arguing that the “Vattelian” view “that the justice of the legal order is itself not founded in justice” influenced Chief Justice Marshall’s opinion in Johnson); Matthew L.M. Fletcher, Tribal Consent, 8 Stan. J. C.R. & C.L. 45, 82-83 (2012) (arguing that “Marshall expressly adopted the international law definition of ‘protection,’ especially the writings of Emer De Vattel,” in Worcester); Matthew L.M. Fletcher, The Dark Matter of Federal Indian Law: The Duty of Protection, 75 Me. L. Rev. 305, 325-36 (2023) (noting “Justice Gorsuch[’s] invo[cations of] Emer de Vattel’s treatise” in his dissent in Castro-Huerta).
While many held that Vattel’s work should only apply in Europe, others, such as Edmund Burke, argued that it should constrain European colonialism. See Pitts, supra note 10, at 90-91 (“Vattel’s extraordinarily influential book proved a powerful resource for both those arguing for an international community restricted to Europe and those who sought to appeal to a universal law of nations to chastise and rein in European agents they believed were abusing their growing military advantage in the course of their commercial and imperial expansion in both hemispheres.”); Iain Hampsher-Monk, Edmund Burke’s Changing Justification for Intervention, 48 Hist. J. 65, 73 n.47 (2005) (“Burke . . . use[d] Vattel in defending the autonomy of the Raja of Benares . . . .”).
See, e.g., Marston, supra note 15, at 376 n.7 (citing Cohen, supra note 20, at 11-12) (arguing for the influence of Vitoria, Vattel, and Grotius on Johnson and Worcester); Robertson, supra note 15, at 378 n.30 (quoting Cohen, supra note 20, at 17) (“While Vitoria himself is not directly cited in any of the early opinions of the United States Supreme Court on Indian cases, these opinions frequently refer to statements by Grotius and Vattel that are either copied or adapted from the words of Vitoria.”); see also John Howard Clinebell & Jim Thomson, Sovereignty and Self-Determination: The Rights of Native Americans Under International Law, 27 Buff. L. Rev. 669, 681 & n.84 (1978) (citing Cohen, supra note 20) (“Spanish colonial law . . . formed the basis of current United States domestic law on Indian affairs, and was itself heavily influenced by the European scholars Vattel, Vitoria and Grotius . . . .”).
Justice Gorsuch persuasively argues that “extensive tradition supports treating certain sovereigns—Tribes among them—as sui generis entities falling outside the foreign/domestic dichotomy.” Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 414 (2023) (Gorsuch, J., dissenting). This unique status is reflected in the term “domestic dependent nations”: “domestic” distinguishes Native Nations from foreign nations, but Native Nations are not domestic for all purposes, as Chief Justice Marshall “deliberately chose the term nations, stressing also that ‘[i]n the general, nations not owing a common allegiance are foreign to each other.’” Id. at 1707 (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831)). I use the term “domestic nations” in this Comment because Marshall’s emphasis on dependence was misplaced, and the term “domestic nations” by itself sufficiently captures the unique status of Native Nations in American law without any reference to dependence.