It Must Be Nice To Have John Marshall On Your Side, Except for Indian Law

Justice Gorsuch embraces Worcester v. Georgia, while Justice Kavanaugh rejects the great Chief Justice.

As a general matter, the Supreme Court never passes a chance to favorably cite an opinion by Chief Justice Marshall. Bonus points for citing Marbury or McCulloch. Indeed, Trump v. Vance invoked Marshall's decision opinion in United States v. Burr over and over and over again. It must be nice to have John Marshall on your side–except, apparently, for Indian law.

The Great Chief Justice has something of a mixed record with respect to Indians. If there is ever a reason to cancel Chief Justice Marshall, it would be for his decision in Johnson v. McIntosh (1823).  In that case, Marshall referred to Native Americans as "fierce savages." Still, perhaps Marshall redeemed himself in Worcester v. Georgia (1832), in which he ruled for the tribes.

How, then, should the modern Court treat Marshall? In Oklahoma v. Castro-Huerta, Justice Gorsuch's dissent embraces Worcester-era Marshall, and rejects McIntosh-era Marshall:

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license. Really, the prosecution was a show of force—an attempt by the State to demonstrate its authority over tribal lands. Speaking for this Court, Chief Justice Marshall refused to endorse Georgia's ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign. See Worcester v. Georgia, 6 Pet. 515, 561 (1832). The Court's decision was deeply unpopular, and both Georgia and President Jackson flouted it. But in time, Worcester came to be recognized as one of this Court's finer hours. The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the "[c]ourts of the conqueror," the rule of law meant something. Johnson's Lessee v. McIntosh, 8 Wheat. 543, 588 (1823). 

Where this Court once stood firm, today it wilts.

The majority opinion, per Justice Kavanaugh, argues that Marshall was wrong in Worcester:

In the early years of the Republic, the Federal Government sometimes treated Indian country as separate from state territory—in the same way that, for example, New Jersey is separate from New York. Most prominently, in the 1832 decision in Worcester v. Georgia, 6 Pet. 515, 561, this Court held that Georgia state law had no force in the Cherokee Nation because the Cherokee Nation "is a distinct community occupying its own territory."

But the "general notion drawn from Chief Justice Marshall's opinion in Worcester v. Georgia" "has yielded to closer analysis." Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962) [(Frankfurter, J.)]. "By 1880 the Court no longer viewed reservations as distinct nations." Ibid. Since the latter half of the 1800s, the Court has consistently and explicitly held that Indian reservations are "part of the surrounding State"and subject to the State's jurisdiction "except as forbidden by federal law." Ibid 

It must have pained Chief Justice Roberts to reach this conclusion: on the one hand, Marshall said Indian tribes were separate from state territory; on the other hand, more than a century of precedent cuts in the opposite direction.

Justice Kavanaugh responds to the dissent that Worcester has been abrogated.

On the first question, as explained above, this Court has repeatedly ruled that Indian country is part of a State, not separate from a State. By contrast, the dissent lifts up the 1832 decision in Worcester v. Georgia as a proper exposition of Indian law. But this Court long ago made clear that Worcester rested on a mistaken understanding of the relationship between Indian country and the States. The Court has stated that the "general notion drawn from Chief Justice Marshall's opinion in Worcester v. Georgia" "has yielded to closer analysis": "By 1880 the Court no longer viewed reservations as distinct nations. On the contrary, it was said 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." Organized Village of Kake, 369 U. S., at 72. 

I've noticed this is a common technique in Kavanaugh opinions. At the outset of the opinion, he lays out precedent in a neutral fashion, and then repeat those passages, almost verbatim, to respond to the dissent.

Gorsuch closes with Justice Story's praise of Worcester, with ample citations to Justice Breyer's article:

In the 1830s, this Court struggled to keep our Nation's promises to the Cherokee. Justice Story celebrated the decision in Worcester: "'[T]hanks be to God, the Court can wash [its] hands clean of the iniquity of oppressing the Indians and disregarding their rights.'" Breyer 420. "'The Court had done its duty,'" even if Georgia refused to do its own. Ibid. Today, the tables turn. Oklahoma's courts exercised the fortitude to stand athwart their own State's lawless disregard of the Cherokee's sovereignty. Now, at the bidding of Oklahoma's executive branch, this Court unravels those lower-court decisions, defies Congress's statutes requiring tribal consent, offers its own consent in place of the Tribe's, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding.One can only hope the political branches and future courts will do their duty to honor this Nation's promises even as we have failed today to do our own.

In the past, I found the Court's Indian docket fairly boring. But if nothing else, Gorsuch has made it entertaining.