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Federal Indian law and the Supreme Court: Lara revisited

In a front-page story in the Nov. 3 Indian Country Today (Vol. 24, Iss.
21), "Taxes and land loom large in Supreme Court", Jim Adams asserted: "The
Supreme Court is the one of the three branches of the federal government
with highest potential for wiping out Indian country gains with a
keystroke."

In point of fact, this has not been the case historically. Typically, the
court defers to Congress in Indian affairs. What governs here, as it has
historically, and as every student of Federal Indian Law knows, is the
doctrine of congressional "plenary power," articulated by the court in Lone
Wolf v. Hitchcock (1903). This case merely formulated what had been
virtually absolute congressional authority in Indian affairs since the
beginning of the Republic and the passage of the first of the Trade and
Intercourse acts in 1790.

In their textbook "Federal Indian Law", Getches, Wilkinson and Williams
make this point abundantly clear: "The power of Congress is so vast in the
field of Indian affairs that it may even be used to eradicate the country's
pledges to the tribes without their consent. Congress can abrogate treaty
promises as old as the country, alter tribal powers of self-government, and
extinguish not only title to land, but even the special relationship of a
tribe to the federal government" (4 - 5; Fourth Edition). In fact the
recent decision in U.S. v. Lara (124 S. Ct. 1628 [2004]), which Adams cites
as proof of the court's power, merely upheld the congressional "Duro Fix,"
in which the Congress overruled the Court's decision in Duro v. Reina (495
U.S. 676 [1990]) by amending the Indian Civil Rights Act of 1968 (ICRA) to
allow tribes to try on-reservation misdemeanor crimes committed by
non-member Indians. Adams stated "the Lara case went narrowly in favor of
tribal sovereignty," when in fact the decision was 7 - 2 in favor of
upholding the Duro Fix.

Crucially, the congressional amendment to ICRA stressed "the inherent power
of Indian tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians" (25 U.S.C. 1301[2]). Indeed, in Duro, the
court acknowledged Congress's power to fix any "jurisdictional void"
brought about by the decision: "If the present jurisdictional scheme proves
insufficient to meet the practical needs of reservation law enforcement,
then the proper body to address the problem is Congress, which has the
ultimate authority over Indian affairs" (495 U.S. at 698).

So, the Court's decision in Lara merely affirms what it called for Congress
to do inDuro and what Congress did do in amending ICRA. What all this
points to is that judicial review in Indian country is at best a diminished
thing because of the Supreme Court's historic refusal to take on Congress's
colonial power and authority over Indian country. What is most troubling
about the Adams' story is that by failing to recognize the actual historic
relationship between Congress and the court it erases the fact that "Indian
country" is a colony of the United States governed by a colonial body of
law that is largely exempt from the crucial processes of checks and
balances that underpin U.S. constitutional law.

The phrase "Indian country" is itself a legal term (18 U.S. C. 1151)
expressing this colonial relationship: The relationship of "domestic
dependent nations" to the federal government as expressed in the will of
Congress. Chief Justice John Marshall coined this still operative phrase in
1831 in his majority opinion in Cherokee Nation v. Georgia (30 U.S. at 17),
which denied the Cherokees the status of a foreign nation and thus the
right to ask the court to enjoin Georgia from "enforcing the laws of
Georgia... within the Cherokee territory, as designated by treaty between
the United States and the Cherokee nation." At the end of his opinion,
Marshall explicitly pointed to the limited jurisdiction of the court and
thereby implicitly gestured toward the political branches of government in
the matter of Indian affairs: "If it be true that the Cherokee Nation have
rights, this is not the tribunal in which those rights are to be asserted.
If it be true that wrongs have been inflicted, and that still greater are
to be apprehended, this is not the tribunal which can redress the past or
prevent the future" (30 U.S. at 19)

The proper tribunal for redressing wrongs against Indian tribes that
Marshall is pointing to here is Congress; and the history of the court's
deference to Congress in the matter of Indian affairs bears out Marshall's
assertion. In light of this deference, it is surprising to read David
Wilkins, a scholar of federal Indian law, stating in the pages of Indian
Country Today in the immediate wake of the Lara decision that the 7-2
decision upholding the Duro Fix "very easily could have been 7 - 2 against
the tribes, or even 9-0" (Vol. 23, Iss. 46). The history of the plenary
power doctrine tells us otherwise. And Justice Breyer makes this history
clear in his majority opinion in Lara, noting that "the Constitution grants
Congress broad general powers to legislate in respect to Indian tribes,
powers that we have consistently described as 'plenary and exclusive'" (124
S. Ct. at 1633; my emphasis).

We have here the irony of the court invoking the Constitution to support
congressional plenary power in Indian country, a power that itself
effectively abrogates the system of checks and balances that is at the
heart of the U.S. constitutional system.

Eric Cheyfitz is Goldwin Smith Professor of English at Cornell University
where he is also a faculty member of the American Indian program and
teaches federal Indian law.