Friday, March 7, 2008

Indian Sovereignty

As noted in the introduction to this blog, I definitely fall into the Thomas camp of jurisprudence. One of my favorite opinions is his concurrence in United States v. Lara, 541 U.S. 193, 215 (2004) (upholding the constitutionality of the Duro-fix), where he characteristically and succinctly stated the fundamental paradox at the root of American Indian law: “the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.”

The tension lies between their status as separate sovereigns and the doctrine of congressional plenary power over tribes. As an original Constitutional matter, it seems fairly clear to me which of these two views must win out. The Commerce Clause mentions Indians along with states and foreign nations. As Philip Frickey wrote in a fantastic law review article (119 Harv. L. Rev. 431), “[o]ne need not be able to translate noscitur a sociis to recognize that the Constitution places tribes on a sovereign plane.” On the other hand, there is little textual basis at all to find a plenary power over tribes – the only argument that could be made is to rely on Article 4’s provisions for Congress’s power over the territories.

This textual analysis is also supported by considering the historical situation at the time of the founding. Indian tribes were far larger, stronger, and more independent then. The powers which were needed to deal with them were precisely those specifically delegated to the national government – war, peace, treaty-making, and commerce. Thus, Indian law should be a federal preserve (outside Settlement Act and Pub. L. 280 states), but not a plenary federal preserve.

Indeed, for much of America’s history, the Supreme Court has been the most important protector of Indian sovereignty, even as against the political branches. The President disregarded one of first Supreme Court decisions upholding tribal sovereignty – purportedly stating “John Marshall has made his decision, now let him enforce it!” While this story may be apocryphal, it certainly reflects Jackson’s sentiments; the missionaries were not released until pardoned by the Georgia Governor in 1833. Congress has, at times, explicitly attempted to terminate the tribes as political entities -- which acts the Court has narrowly construed.

In recent years, however, these positions have been reversed. Since Nixon’s presidency, both the President and Congress have been active in supporting tribal sovereignty and self-determination. On the other hand, the recognized trend in the Supreme Court has been to cut back on the sovereign rights of the tribes. In large part, this trend is a result of striving for coherence amid the antimony of the two competing tensions discussed above. The solution is to return to the original understanding of the Constitution, reject the plenary power position, and engage in a government-to-government relationship with the tribes.

The flip side of this argument, on the other hand, is to recognize that the plenary power doctrine arose roughly the same time as the Insular Cases doctrine, and to make Indian law cohere with that doctrine. To do so would severely limit Tribal sovereignty and affirm congressional plenary power. A key difference, however, between the land at issue in the Insular Cases and the tribes, is that the former territories are unquestionably under the control of the U.S. and no other sovereign, whereas the tribes are a constitutionally recognized seperate sovereign. Furthermore, this position runs contrary to Congress's stated desire for Indian self-determination.

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