PEP1
Analítico de Periódico
FRICKEY, Philip P.
Marshalling past and present : colonialism, constitutionalism, and interpretation in federal Indian law / Philip P. Frickey
Harvard law review, Cambridge, v.107n.2(December1993), p.381-440
Classificação GDDC: 015. - Este documento pertence à "Doação Paula Escarameia".
DIREITO CONSTITUCIONAL / EUA, INDÍGENA / EUA, LEGISLAÇÃO / EUA, COLONIALISMO / EUA
Federal Indian law is often dismissed as esoteric and incoherent. In this Article, Professor Frickey argues that this need not - and should not - be the case. Rather, he claims, federal Indian law represents the intersection of colonialism and constitutionalism in the American historical experience. As such, it is central to our understanding of American public law. Moreover, Professor Frickey contends that a coherent, normatively sensitive approach to contemporary federal Indian law is possible. Professor Frickey identifies, in the three foundational federal Indian law opinions written by Chief Justice John Marshall, on ingenious, evolving effort to mediate the tensions between colonialism and constitutionalism. According to Professor Frickey, Chief Justice Marshall achieved this subtle accommodation by conceiving of Indian treaties and other documents that adjust the exclusive sovereign-to-sovereign relationship between the federal government and tribes as constitutive texts. As such, Chief Justice Marshall's interpretive approach to them mirrored his approach to the federal Constitution. Unfortunately, the Supreme Court and contemporary commentators have lost sight of Chief Justice Marshall's approach. Professor Frickey outlines the implications of a return to a constitutive vision and concludes that such a method is both more coherent and more sensitive to the underlying issues of federal Indian law.