Previously, this column raised a number of questions about U.S. v. Lara, a
court case involving the issue of whether Indian governments have the power
to charge and try non-member Indians for minor crimes. The U.S. Supreme
Court is about to decide the case and it will be most interesting to see
where the Court goes with it, particularly given that Lara touches on such
core issues as "inherent sovereignty."
A previous ruling in U.S. v. Lara by the 8th Circuit Court of Appeals held
that "Congress's broad authority over Indian affairs derives from and is
limited by the Constitution. Some decisions root this power in the Indian
Commerce Clause." As the 8th Circuit Court of Appeals stated, "Prior to
1903, the federal government negotiated agreements with tribes pursuant to
its treaty power ... but the combination of the 1871 statute [that ended treaty making with Indian nations] and the development of the plenary power
doctrine ended this process."
A major question that the 8th Circuit Court of Appeals said it must address
is, "whether the sovereignty retained by tribes in their dependent status
within our scheme of government includes the power of criminal jurisdiction
over non-members." The majority did not explain how "sovereign" Indian
"tribes" supposedly became "dependent" within the U.S. "scheme of
For quite some time now, I've been deeply focused on the realization that
Indian nations were free and independent prior to the existence of the
United States. Now, however, we as Indian people are expected to swallow
the idea that our respective nations are now longer entitled to be free
because our nations are said by U.S. courts to be "dependent," which
apparently means "un-free." (And this despite Marshall having said in
Worcester that "dependent" merely meant Indians were to be protected from
white intruders and to have their economic wants supplied by the U.S.) What
troubles me is that I have yet to find a clear explanation as to how our
respective nations went from being free to supposedly being un-free.
Some would say - and it sounds as if the 8th Circuit Court of Appeals has
said this in U.S. v. Lara - that Indian nations went from being free to
un-free ("dependent") as a result of U.S. Supreme Court rulings. For
example, the majority in the 8th Circuit Court ruling said that the dissent
"shuts both eyes to the reality" that after the Supreme Court ruling
Montana v. U.S., "tribal sovereignty over non-members 'cannot survive
without express congressional delegation.'"
But here's my dilemma. In order to posit that Indian nations became un-free
as a result of one or several U.S. Supreme Court rulings, it is first
necessary to explain on what basis free nations became un-free in order to
become subject to any such court ruling. In other words, free Indian
nations would have to become un-free before they would be subject to any
judicial pronouncement of the U.S. Supreme Court. Thus, it does not make
sense to say that a Supreme Court ruling made Indian nations un-free at a
time when those nations were still free and independent of any such ruling.
To argue that Indian nations ceased to be free and independent because of a
decision by the U.S. Supreme Court is to argue that some U.S. Supreme Court
ruling (such as Johnson v. Mclntosh, Cherokee Nation v. Georgia, etc.) was
the causative factor that somehow deprived Indian nations of a free and
independent existence. But since those Indian nations were free and
independent at the time such a U.S. court ruling was handed down, those
nations were also free and independent of and therefore not subject to the
very judicial decision we are expected to believe deprived Indian nations
of a free and independent existence.
When Indian nations were still free and independent, how could they be both
not subject to the U.S. Supreme Court and subject to the U.S. Supreme Court
at the same time? In other words, how and when did free and independent
Indian nations first become subject to U.S. Supreme Court decisions in
order for one of several of those decisions to have deprived those nations
of a free and independent existence?
Such questions also need to be raised in order to challenge the idea that
Indian nations are subject to the Commerce Clause of the U.S. Constitution.
At the time the U.S. Constitution was ratified, in 1789, Indian nations
were free and independent of the United States. This is why diplomacy and
treaty making was the proper course of action for relations between the
U.S. and independent Indian nations.
So, then, how and at what point did free and independent Indian nations,
with their own respective systems of self-government and
self-determination, supposedly become subject to the authority of the
United States and the U.S. Constitution? No one can tell us, unless we loop
right back to the untenable argument that Indian nations became subject to
the United States because the U.S. Supreme Court so decided.
In my view, it is truly sad that such questions are virtually never raised
in Indian country. Instead, we find advocates for Indian nations and
peoples actually agreeing with the central and bogus premise of federal
Indian law that the United States has "plenary power" over Indian nations
without ever explaining how the U.S. supposedly got such power without
Indian consent. As mentioned previously, the 8th Circuit Court of Appeals
said in U.S. v. Lara that "Congress's broad authority over Indian affairs
derives from and is limited by the Constitution. Some decisions root this
power in the Indian Commerce Clause."
Now isn't the phrase "Congress's broad authority over Indian affairs" just
another way of saying that the U.S. has "broad authority over Indians" that
"derives from the Constitution?" The thing is, this argument can only make
sense if it is assumed that our nations were never politically free and
independent of the U.S. Constitution to begin with. And this, of course, is
a colossal lie.