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Inherent sovereignty under siege in Lara appeal

WASHINGTON - The inherent sovereignty of tribes can be seen as the power of "we the people," the same power that founded America.

But in the case of tribes, it came about much earlier because "we the Indian people," if you will, had been governing themselves in tribes for centuries. And so their inherent sovereignty is said to "predate the Constitution," as recognized in U.S. Courts and international law.

Centuries of antagonism from the British colonies and later American states is held to have extinguished inherent tribal sovereignty over former tribal territories now governed by the United States, or for that matter, states of the United States. This is the general basis for legal arguments that seek to find an extinction of sovereignty. But in negotiating treaties and pressing their legal rights in the U.S. courts, tribes have asserted a pre-existing inherent sovereignty over their own remaining territories, subject to oversight of Congress as the U.S. treaty-making power. This is the general basis for the legal standing of tribes as limited dependent sovereigns.

This is all pretty clear, and readily comprehensible despite the many Indians who speak of tribal sovereignty as if the "limited, dependent" part of the formula doesn't apply, and the many more non-Indians who speak of tribes as if the "sovereign" part of it doesn't apply.

But beyond these clear lines of thought, as egos and resources and competing priorities come into play, the limited and dependent, but stubbornly real sovereignty of tribes is subject to periodic legal sieges that would further reduce its arena of relevance. One such anti-sovereignty approach is to translate inherent powers, which require only the consent of the governed for its expression, into delegated powers, which rely on the will of the delegating authority.

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Time after time, U.S. history demonstrates that political will is a major problem for tribes - which however justly courts may reason, congressional willpower may lag behind. The Marshall decisions of the early 19th century may have established the basis of tribal rights, for instance, but President Andrew Jackson famously suggested the chief justice ought to also enforce his rulings and instead proceeded with Cherokee removal. More recently, a judge opined that the Black Hills takings were as rank and dishonorable a piece of wrong dealing as the government has ever engaged in, but concluded that nothing could be done about it (beyond offering a cash payment) at this later stage of history. And only a month ago, Congress overruled the clear reasoning and just decision of the courts by stalling a court-ordered historical accounting of the trust funds - not because one isn't past due or because Indian trust beneficiaries haven't been harmed, but because the wealthiest nation in the history of the world can't afford to pay for it.

A modern philosopher has noted that the "obstacles to comprehension" have less to do with understanding than with lack of willpower. In each of these cases and many others, it becomes clear the U.S. Congress could do what courts and the Constitution require of it if it had the will. As one commentator said of congressional intervention in the trust funds case, "If they had the will to do an historical accounting, they would find the money."

Against this background, the Supreme Court's decision to hear an appeal in United States v. Lara could indeed prove to be a significant test of tribes' inherent sovereign powers, as the Washington law firm of Hobbs Straus Dean & Walker LLP, long active in Indian-specific litigation and co-drafter of a "friend of the court" brief in the case, has already suggested.

Brief details of the Byzantine legal proceedings in the case were recounted in the first installment of this series; suffice to say here that by letting a lower-court ruling stand in Lara, the court would establish the principle that inherent sovereign powers, once lost, cannot be restored by Congress. If the high court overturns the lower court, on the other hand, the precedent will be set for replacing a tribe's lost inherent sovereign power with delegated federal power - the kind that is subject to the political will of Congress before the reasoning of courts.

(Continued in Part Three)