Federal Indian Law and the Limits of Counterfactuals

Ruins of a city plainly built by peoples with an agricultural surplus.
Photo by Russ McCabe from Unsplash

When I wrote a regular column for Indian Country Media Network, my colleague Steve Newcomb published a column accusing the first great Chief Justice of the United States, John Marshall, of telling stories. Newcomb was correct, but storytelling would not make Marshall stand out in a crowd of appellate judges. It would not so much that he told stories but how he told them. And let me be clear that by “great” I mean a public figure who dared greatly and achieved greatly. I do not mean I’m enamored of his achievements and I know Newcomb is not.

Marshall crafted the three SCOTUS opinions that underlie the entire house of cards we call federal Indian law. Since he was supposed to be interpreting the Constitution at the time, and since that document contains only two mentions of Indians, Marshall’s primary raw material was his fertile imagination.

Power to regulate commerce with the Indian tribes was an enumerated power of Congress, and “Indians not taxed” were excluded from being counted when apportioning the House of Representatives by population according to the Census every ten years.