Marshall authored a series of three Supreme Court decisions in the
1830s that laid the groundwork for federal primacy over tribal nations
Court of the Conqueror
Beginning at the highest level , the U . S . Supreme Court shaped modern American federal Indian policy during the 1830s with the Marshall Trilogy , a series of three U . S . Supreme Court opinions principally authored by Chief Justice John Marshall .
The three opinions laid the legal basis for federal primacy in Indian affairs , which excluded the states from exercising their laws over tribes , and most importantly , established tribal governance authority , establishing the unique dual sovereignty structure that ’ s still in place today .
In the decades following the Marshall Trilogy , tribes and states tested the boundaries of federal and executive power over all tribal affairs , including land and lives .
A second trilogy of Supreme Court decisions , referred to as the plenary power trilogy , marked another era of thought and federal Indian policy . By most accounts , the decisions of the plenary power trilogy indicated a shift away from diplomatic responsibilities , and toward a custom of ignoring established treaties .
“ A lot of people disregard our treaties , and say they ’ re a thing of the past — that they ’ ve been broken , so let ’ s forget about them . They would like to wipe away the treaty history of the United States ,” says Echo- Hawk . “ But that ’ s simply not how it works .”
A Path to Gaming
The policies that flowed from the plenary power trilogy were met in the late 1920s by the Meriam Report , a study conducted by the Institute of
Government Research to assess the impacts of federal Indian policy . Among its many stark findings : “ Several past policies adopted by the government in dealing with the Indians have been of a type which , if long continued , would tend to pauperize any race .”
Principally , the Meriam Report served as a wake-up call to lawmakers , and raised awareness around the structural impediments to the betterment of Indian nations .
“ American federal Indian policy has always reflected an oscillation between two forces ,” says Jonodev Chaudhuri , former chairman of the NIGC , and now a partner with the Quarles & Brady law firm . “ On one hand , you have assimilationist forces , who I think , right or wrong , firmly believe that the best path forward for Indian country is to assimilate into broader American cultural norms . That mindset has created policies such as the assimilation policies of the late 1800s . It has led to policies such as the termination and relocation policies of the 1950s and ’ 60s . On the other side , there are the self-determination policies that flowed from the Meriam Report .”
Stemming from the Meriam Report are “ the self-determination policies that are reflected in the Indian reorganization acts , such as the Indian Child Welfare Act and the Violence Against Women Act ,” says Chaudhuri . “ These self-determination principles all reflect the idea that , not only should tribes have jurisdictional authority over activities within their lands , but tribes themselves are best suited to understanding the needs and solutions for matters within their lands .”
“ The future is not yet written . The future could be dictated by advocates for more state control , whether it ’ s in the sports-betting arena or whatever the next policy discussion is down the pike .”
— Jonodev Chaudhuri , former chairman , National Indian Gaming Commission www . tribalgovernmentgaming . com 27