Separate Sovereigns, Civil Rights, and the Sacred Text: The Legacy of Justice Thurgood Marshall's Indian Law Jurisprudence

Abstract

Traditionally "outsiders" in the American legal system, Indian nations provided a unique challenge to Justice Marshall's larger task of incorporating those who have historically been "voiceless" in the legal process. Justice Marshall saw American Indians as more than mere "racial minorities." His Indian law opinions largely concern the role of Indian nations as separate sovereigns within the federal system. This article will discuss how Justice Marshall "placed" Indian nations within the federal system in the context of the challenges to tribal sovereignty presented by the cases before him. Justice Marshall considered challenges to tribal sovereignty arising in two separate contexts: first, the extent to which tribal sovereignty bars intrusion of state jurisdiction within Indian territory; and second, the extent to which tribal sovereignty is limited by the "overriding sovereignty" of the federal government.

Keywords: Sovereignty, civil rights, American Indians