Starting with Chief Justice John Marshall and continuing through to the present Supreme Court, the story of Indian sovereignty has been consistent—it exists only in the most diminished form. Some reasons for this have been premised on the incapacity of Indians to self-govern; others on theories of federalism; while still others on the ambitions of non-Indians. However, the factual premises behind the concept of diminished sovereignty are baseless—legal fictions about the conquest of Indians and their nature. These fictions originated in Chief Justice Marshall’s Indian Law Trilogy and should have vanished long ago when their original purposes were fulfilled, like other legal fictions that are no longer useful. This article examines the reasons for the persistence of Marshall’s fictions in the face of contradictory evidence and the harm they have done to the cause of tribal sovereignty and Indians in general. The author's conclusion is that their endurance has less to do with serving some intellectual purpose or maintaining stability in the law—traditional justifications for the continuation of a legal fiction—than with hiding a normative judgment that Indians should not exists as a separate people.
In support of that thesis, this article briefly discusses the origin of the modern concept of diminished tribal sovereignty in Marshall’s Indian Law Trilogy. This discussion points out the dissonance between the fictions Marshall propounded in support of that concept and the actual record he should have considered in reaching his decisions. The article then turns to the legal fiction doctrine and briefly identifies the traditional functions it performs as well as the doctrine’s hidden dangers. This part of the article shows how Marshall used legal fictions in his Trilogy and speculates about why he used them. The third part of the article describes the harm that Marshall’s use of the legal fiction doctrine has done to the cause of tribal sovereignty and Indians in general. Based on their pernicious effect, the article concludes that Marshall’s fictions are “bad” legal fictions that should, and can, be expunged from federal Indian jurisprudence; their momentary usefulness, long outlived.
55 Vill. L. Rev. 803-831 (2010)
Scholarly Commons Citation
Babcock, Hope M., "The Stories We Tell, and Have Told, About Tribal Sovereignty: Legal Fictions at Their Most Pernicious" (2010). Georgetown Law Faculty Publications and Other Works. Paper 941.