Document Type

Article

Publication Date

Spring 2026

Abstract

As Maggie Blackhawk illuminates in the 2023 foreword of the Harvard Law Review, the United States government has had free rein to legally subordinate Indian tribes throughout its history. As the first ever foreword to be written by a Native American woman, let alone on the topic of Indian borderland constitutionalism, Blackhawk explains the inextricable nature of federal Indian law from the development of American constitutional jurisprudence. This legacy of oppression has been intentionally crafted throughout nineteenth and twentieth-century litigation and forms the basis of federal Indian law. Supreme Court cases such as United States v. Kagama in 1886, Lone Wolf v. Hitchcock in 1903, and the Indian Reorganization Act of 1934, each enshrine aspects of American legal stasis. Blackhawk describes these as colonial roots of American constitutionalism which have subjugated Native Americans for over one hundred and fifty years.

The origin of the colonial-rooted legal dynamic between the federal government and Indian tribes can be more precisely traced back to the constitutional amnesia of the Supreme Court case, Worcester v. Georgia, in 1832. The historic decision by Chief Justice John Marshall set a precedent for tribal sovereignty by affirming the Cherokee Nation’s inherent and treaty guaranteed rights. However, by 1833, the case went immediately unenforced by the federal government and allowed individual states to overpower the Cherokees’ and all other Indian tribes’ sovereignty. The “stillborn” nature of Worcester v. Georgia, which Andrew Jackson facilitated, would continue in federal Indian law for the next one hundred and fifty years, until the Indian Self-Determination Act in 1975. This legacy is an example of an American failure to live up to its own standard as a beacon of equality and the rule of law.

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