MARSHALLING PAST AND PRESENT - COLONIALISM, CONSTITUTIONALISM, AND INTERPRETATION IN FEDERAL INDIAN LAW

Federal Indian law is often dismissed as esoteric and incoherent. In t his Article, Professor Frickey argues that this need not - and should not - be the case. Rather, he claims, federal Indian law represents th e intersection of colonialism and constitutionalism in the American hi storical experience. As such, it is central to our understanding of Am erican public law. Moreover, Professor Frickey contends that a coheren t, normatively sensitive approach to contemporary federal Indian law i s possible. Professor Frickey identifies, in the three foundational fe deral Indian law opinions written by Chief Justice John Marshall, an i ngenious, evolving effort to mediate the tensions between colonialism and constitutionalism. According to Professor Frickey, Chief Justice M arshall achieved this subtle accommodation by conceiving of Indian tre aties and other documents that adjust the exclusive sovereign-to-sover eign relationship between the federal government and tribes as constit utive texts. As such, Chief Justice Marshall's interpretive approach t o them mirrored his approach to the federal Constitution. Unfortunatel y, the Supreme Court and contemporary commentators have lost sight of Chief Justice Marshall's approach. Professor Frickey outlines the impl ications of a return to a constitutive vision and concludes that such a method is both more coherent and more sensitive to the underlying is sues of federal Indian law.