Associate Professor Richard Monette.
In the recently decided case, US v. Lara, 541 U.S. ___ (2004), the U.S. Supreme Court held that Congress can remove previously imposed restrictions on the exercise of Tribes' inherent sovereignty. Indian Media immediately proclaimed the victory. Native American Times headlined: "Ruling Upholds Tribal Sovereignty". Indian Country today proclaimed: "Supreme Court ruling benefits tribes". I'm not so sure.
In Indian law decisions in particular, different Supreme Court justices have reached similar conclusions, and thus "orders", using widely divergent reasoning. As a result, tribes may win or lose, but can never really be sure why. Therefore, while one would conventionally begin with the majority opinion, the concurring opinion by Justice Clarence Thomas provides an illuminating snapshot of what the majority order means.
Justice Thomas begins his concurring opinion with a harbinger declaration, inaccurate only in its understatement: "As this case should make clear, the time has come to reexamine the premises and logic of our tribal sovereignty cases." Of course, reexamining "premises" seems antithetical to the anti-revisionist school of thought to which Thomas ostensibly adheres. And, while the word "logic" is loosely used, even First Nation advocates agree that the time has come to "reexamine" the logic of American law dealing with First Nations. But at the behest of Justice Clarence Thomas? This, perhaps, is not what they had in mind.
After that ominous opening statement, Justice Thomas then adds, "It seems that much of the confusion arises from two largely incompatible and doubtful assumptions." Significantly, Thomas says "much" of the confusion, implying that there exists additional confusion, requiring presumably more reexamining at a future date. Of course, most of the confusion derives from the utter lack of the above-referenced logic. First Nations advocates will surely make note of the added irony that this call to "reexamine" comes from one of the primary purveyors of that confusion. Nonetheless, Thomas' statement offers a rare acknowledgement that the Court's jurisprudence has deteriorated into downright confusion.
So what are these two "largely incompatible presumptions"? Thomas puts it like this: "First, Congress (rather than some other part of the Federal government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity. Second, the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members." This kind of incompatible assumption is not unknown to Indian Country, to wit: coupling self-determination for First Nations with a pervasive "trust responsibility" in the Department of the Interior.
The first of Thomas' assumptions serves up the concept that First Nation sovereignty is, ultimately, subject to complete defeasance. (If anything, the tenor we hear in Thomas' voice reflects his chagrin and envy that the Lara majority takes away the Supreme Court's power, and thus his own influence, to dismantle First Nations, acknowledging it in Congress instead.) We must be clear that what Thomas finds "doubtful" is not whether Congress can "regulate virtually every aspect of the tribes"; instead, what he finds doubtful, when Congress does finally regulate every aspect of the First Nations, is that their sovereignty has not been rendered a nullity, completely defeased.
The second assumption – regarding criminal jurisdiction over members – suggests that some measure of First Nation sovereignty is in fact "inherent" and, thus, at least according to America's own founding principles, indefeasible. Indeed, the phrase "against their own members" references the point where First Nation sovereignty is strongest. Therefore, Thomas' assumptions are, so to speak, the proverbial irresistible force (Congress) and immovable object (inherent sovereignty). To Thomas, either the object or the force must give.
Thusly, Justice Thomas resigns himself: "These assumptions, which I must accept as the case comes to us, dictate the outcome in this case, and I therefore concur in the judgment." So, for now, Thomas accepts the confusion and the continuation of both assumptions. But he concludes his opening argument reiterating the antithetical: "In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously." So, in the future, forced to choose, which will the Court, or Congress, choose?
At this point Justice Thomas delves into the thicket, and here's where First Nations should be most wary. Why? Because this is where Thomas' concurring opinion crystallizes the majority's premise that First Nations have no constitutional status and their relationship with the Union and the States has no constitutional framework. In no uncertain terms Thomas writes: "But the States (unlike the Tribes) are part of a constitutional framework that allocates sovereignty between the State and Federal Governments and specifically grants Congress authority to legislate with respect to them." (Leave aside, momentarily, Thomas' thin acknowledgement that the constitution does NOT specifically grant Congress authority to legislate with respect to Tribes.) Thomas then sharpens the dagger: "The tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it."
First Nations' sovereignty is not guaranteed by the US Constitution! In other words, if Congress may "remove restrictions" on inherent sovereignty with constitutional review, Congress may impose restrictions without constitutional review. This is, really, what the majority in Lara holds. That is why Thomas, despite the blather, joins the majority decision. Only a political, legal, logical, and normative constitutional status for First Nations can avoid such a conclusion.
But that's not all; it gets worse. Justice Thomas then proceeds to explicate his confusion about inherent First Nation sovereignty. First, Thomas agrees that Congress did not delegate federal power in the Duro fix, but recognized "inherent power." Indeed, Thomas declares, "It follows from our case law that Indian tribes possess inherent sovereignty to punish anyone who violates their laws." (Italics his) Does Thomas really believe that? Not if he really believes his own definition of inherent.
Instead, Justice Thomas proceeds to eliminate not only a constitutional status for First Nations, but also any protections they enjoy under the "federal common law" (and in the process he would seem to de-constitutionalize federal common law entirely). He states clearly: "Duro, Oliphant, and Wheeler are classic federal common law decisions." Thus, "[d]espite the obvious tension, Duro and Wheeler are not necessarily inconsistent." For one thing, those cases "make clear that conflict with federal policy can operate to prohibit the exercise of this sovereignty."
So, things change: "Thus, while Duro may have been a correct federal common law holding at the time, the political branches have subsequently made clear that the tribes' exercise of criminal jurisdiction against nonmember Indians is consistent with federal policy." (emphasis mine) Never mind who sets this federal policy, (why, the "political branches" of course), let alone who interprets it (why, the Court of course). If heretofore First Nations found solace in a federal common law, especially if that federal common law had its moorings in constitutional normalcy, not anymore.
Justice Thomas's opinion can be reduced to four harbinger pronouncements:
- tribes have no constitutional status;
- their sovereignty is not guaranteed by the constitution;
- federal common law holdings are not based in the constitution; and
- federal policy trumps federal common law.
I have spent my scholarly career trying to evolve the topic of Indian law discussions into the constitutional status of First Nations, usually to much detraction. First Nations leaders, their attorneys, and scholars chant: "the US constitution recognizes three separate sovereigns." Number one, to the extent that the constitution somehow implies U.S. political of a continuing international status, I find that to be a stretch. Number two, they would chant the "three-sovereign" mantra all the while decrying any continuing constitutional framework for the domestic relationship between First Nations, States, and the Union. I find that to be irresponsible. Third, it was increasingly clear that America didn't buy either one. I find that to be at least meaningful.
Certainly, First Nations could either be international or domestic, or, I suppose, non-existent. If international, First Nations could be like Germany or Japan, or Monaco or Hong Kong, or Puerto Rico or Northern Cyprus, or even like the Sami Parliament of Lapland. If domestic, they could either be like one of the fifty States, or a political subdivision of one of those States, like a county or municipality, or they could be merely aggregations of racial or ethnic peoples. But a domestic sovereign with constitutional status, international powers, and on par with the Union? To get a barometer reading on a cross section of the Court, one need not look farther than Lara itself, where Justice Souter in dissent writes: "[N]o one could possibly deny that the tribes are subordinate to the National Government."
As one alternative, I have advocated a "new federalism for First Nations" idea. I conceded that the US Constitution did indeed recognize First Nations as sovereigns. I even conceded that it recognized them originally as "separate sovereigns", on the international plane. However, I opined that treaties between the Union and the First Nations could be read to have brought First Nations within the domestic sphere. Of course, being domestic does not guarantee any measure of residual sovereignty.
I argued that not only did treaties bring First Nations within the domestic sphere, but did so with some semblance of logic and norm. I argued that while the constitution did indeed contemplate three sovereigns, it contemplated only two planes of sovereignty, and that First Nations would share a plane of sovereignty with either the Union or the several States. I further opined that First Nations, rather than equating to the United States in the world order, are similarly situated to the several States. I read "our federalism" jurisprudence with an analogical eye to First Nations, emphasizing "our other federalism," a federalist relationship of sorts between the Union and First Nations. In that way the sovereignty of the First Nations could be just as indefeasible as the sovereignty of the several States. I believed that if that proposition would carry the day, a constitutional status for First Nations would obtain.
Now Lara begins to clarify the Rehnquist Court Doctrine that First Nations have no constitutional status, so that Congress can impose and remove restrictions on inherent First Nation sovereignty without constitutional moment.
Here Justice Thomas slips into two arguments that may have ramifications far beyond his intent, first resurrecting a fundamental tenet of the delegation doctrine that heretofore has escaped usefulness by First Nations in other contexts and, second, whether Congress's declaration of the end of treaty-making is constitutional or enforceable. In agreeing that the "Duro fix" is not a delegation, Thomas writes: "Congress cannot transfer federal executive power to individuals who are beyond 'meaningful Presidential control'." However, this is precisely what Congress has done in "PL-280", transferring wholesale to States the Federal government's criminal jurisdiction over First Nation citizens in Indian Country. Pub. L. 83-280. Congress also delegated federal power to the States in the Indian Gaming Regulatory Act by allowing State governors to essentially veto trust status for land acquired by First Nations for the express purpose of gaming. Tribes will welcome the re-opening of the issue whether Congress could have delegated such power to State governors whom surely the President does not have the power "to appoint and remove." Id. at p. 3.