The Marshall Trilogy: A Dual Legacy of Sovereignty and Subordination in Federal Indian Law

The Marshall Trilogy has long been critiqued for its reliance on paternalistic doctrines such as the Doctrine of Discovery and its role in subordinating tribal sovereignty to federal authority. However, when contrasted with contemporary rulings that undermine tribal authority through implicit divestiture, the Trilogy’s recognition of tribal inherent sovereignty vis-à-vis the states reflects a relatively pro-tribal stance.

While flawed in its foundation, the Trilogy introduced essential protections against state overreach into Indian Country. This framework, upheld in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), categorically excluded state jurisdiction over tribal lands, affirming federal preemption and tribal sovereignty. In contrast, modern cases like Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) have incrementally eroded these protections, substituting them with doctrines that prioritize non-tribal interests over Indigenous self-determination​​.

The Marshall Trilogy introduced a dual sovereignty model, positioning tribes as “domestic dependent nations.” While this construct subordinated tribal sovereignty to federal oversight, it also established the federal government—not the states—as the tribes’ primary legal counterpart. This principle was reiterated in Worcester v. Georgia (1832), which safeguarded tribal autonomy from state intrusion​​. In contrast, Oliphant v. Suquamish Indian Tribe (1978) stripped tribes of criminal jurisdiction over non-Indians, undermining the inherent sovereignty recognized by the Trilogy. Similarly, in City of Sherrill v. Oneida Indian Nation (2005), the Court invoked doctrines of laches and impossibility to deny the Oneidas’ tax immunity claims, prioritizing non-Indian reliance interests over historical injustices​​.

 The Trilogy’s recognition of inherent sovereignty provided tribes with a legal framework for asserting autonomy, as seen in cases like California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) which reaffirmed tribal immunity from state civil regulation. However, this sovereignty is increasingly undermined by modern rulings emphasizing state or private interests. For example, City of Sherrill (2005) rejected the restoration of tribal land rights, citing equitable doctrines that favor maintaining the status quo over rectifying historical injustices​​.

Critics argue that the Trilogy’s paternalism perpetuated tribal dependency and justified federal dominion. However, this critique overlooks the Trilogy’s role in creating a legal foundation for tribal self-governance. Contemporary decisions have done greater harm by explicitly divesting tribes of rights without providing alternative frameworks to support sovereignty, as demonstrated in Oliphant v. Suquamish Indian Tribe(1978) and White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). These rulings, unlike the Trilogy, actively dismantle tribal authority rather than preserving it​​.

If one foundational ruling were to be altered, it would be Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823). The Doctrine of Discovery, which underpins this decision, reduced tribal land ownership to a lesser right of occupancy. Removing this doctrine would affirm tribes’ inherent sovereignty and full ownership of their territories. This change would apply universally, creating a baseline for equitable land and governance frameworks across all tribes​​.

Revisiting Johnson v. M’Intosh (1823) would require a judicial acknowledgment of the Doctrine of Discovery’s discriminatory origins. Legislative action could further codify tribal land rights, as seen in the Indian Reorganization Act, U.S.C. §§ 5101–5144 (1934), which restored tribal authority over lands. By expanding the IRA’s (1934) trust acquisition process and aligning it with international norms like United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), Congress could affirm tribal sovereignty on equitable terms​​.

The Marshall Trilogy’s legacy is one of complexity: foundational yet flawed, protective yet paternalistic. Revising Johnson v. M’Intosh (1823) would address these contradictions, affirming the inherent sovereignty of tribes and enabling them to exercise full authority over their lands and governance. Such a change would strengthen Indian law and policy, ensuring that tribal voices and rights are upheld in the modern legal framework.

Reference:
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).

Indian Reorganization Act, U.S.C. §§ 5101–5144 (1934).
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).
White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).