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Justice Clarence Thomas and U.S. v. Lara

"Federal Indian policy is, to say the least, schizophrenic. And this
confusion continues to infuse federal Indian law and our cases."
-Justice Clarence Thomas, in his concurring opinion in United States v.
Lara.

The case U.S. v. Lara involved a Turtle Mountain Chippewa man, Billy Jo
Lara, who assaulted a Bureau of Indian affairs police officer after being
banned from the reservation of the Spirit Lake Tribe, of which Lara's wife
is a member. After Lara pleaded guilty in tribal court and served 90 days
in jail, the federal government then charged Lara with assaulting a federal
officer. Lara claimed that the federal charges were unwarranted under the
Double Jeopardy Clause of the U.S. Constitution (which says you can't be
charged twice by the same government for the same crime). Lara claimed he
had already been charged in Spirit Lake Tribal Court on the basis of
prosecutorial power that Congress had "delegated" to tribes through a 1991
amendment to the Indian Civil Rights Act.

Thus, the issue before the court was whether the Spirit Lake Tribe's
prosecution of Lara was an exercise of the "inherent sovereignty" of the
Spirit Lake Tribe, or rather an exercise of a federally delegated power of
prosecution. In its April 19 decision, the Supreme Court said that the
Spirit Lake Tribe exercised its "inherent sovereignty" when it prosecuted
Lara.

The recent decision in U.S. v. Lara is already being hailed as a
significant victory. And given the clearly favorable outcome of the ruling,
we ought to be grateful that the decision came down the way it did.

Yet, before we become too celebratory, we would be well advised to temper
our enthusiasm for the recent ruling in U.S. v. Lara with a clear
recognition of the way the majority opinion reaffirms the doctrine of U.S.
plenary power over Indian nations. The majority opinion, delivered by
Justice Breyer, states that, "[T]he Constitution grants Congress broad
general powers to legislate in respect to Indian tribes, powers that we
have consistently described as 'plenary and exclusive.'"

Remarkably, however, a disagreement has developed within the body of the
Supreme Court that will make future twists and turns in the
conceptualization of federal Indian law quite fascinating. In his
concurring opinion, Justice Clarence Thomas has openly called into question
the confusing and contradictory nature of the entire field of federal
Indian law. These are interesting days indeed.

Although we have no way of knowing his motives for doing so, Thomas has
taken exception to the majority's view that the U.S.'s claim of "plenary
power" over Indians is rooted in the Commerce Clause and the Treaty Clause
of the U.S. Constitution. Indeed, Thomas raises a host of fundamental
questions about the very nature of federal Indian law.

Puzzled by Thomas' apparent willingness to directly challenge the idea that
the plenary power doctrine is based on the Constitution, I was intrigued to
find a footnote in the dissenting opinion written by Justice Souter (joined
by Justice Antonin Scalia, with whom Thomas is so often aligned) referring
to Thomas' "readiness to discard prior case law in this field [of federal Indian law]" and to reject "in this Very case the concept of dependent
sovereignty."

Indeed, Souter's dissent notes that Justice Thomas "assumes that tribes
'retain inherent sovereignty to try anyone who violates their criminal
laws,'" not just member and non-member Indians. (my emphasis) As Souter put
the matter, "Justice Thomas implicitly rejects the concept of dependent
sovereignty, upon which our holdings in U.S. v. Wheeler... and Oliphant v.
Suquamish Tribe... rested."

Thomas begins his opinion by saying that "the time has come to reexamine
the premises and logic of our tribal sovereignty cases," and by citing what
he said are "two largely incompatible and doubtful assumptions." The first
doubtful assumption is that "Congress... can regulate virtually every
aspect of the tribes without rendering tribal sovereignty a nullity." And,
secondly, the Indian tribes retain inherent sovereignty to enforce their
criminal laws against their own members." He suggests that these two
principles contradict one another.

Thus, Thomas seems to be saying that if Congress can indeed "regulate
virtually every aspect of the tribes" then this effectively nullifies the
very basis for claiming that Indian nations are sovereign. As Thomas puts
the matter: "In my view, the tribes either are or are not separate
sovereigns, and our federal Indian law cases untenably hold both positions
simultaneously."

I'm certain that some scholars will view this sweeping statement as a cause
for alarm, but it shouldn't be for one simple reason: Before the claim can
be made that Indian nations are not sovereign because the U.S claims
plenary congressional authority to regulate Indian existence, the United
States must first demonstrate from what legitimate source Congress ever
acquired such authority over free and independent Indians to begin with.
The only possible legitimate source for such power is the free consent of
Indian nations as given in treaties, which consent Indian nations have
never given.

Furthermore, Thomas contends that the United States faces a real conundrum
in this respect because in his view, contrary to what the Breyer opinion
contends, no legitimate source for such congressional authority over Indian
nations is found in the U.S. Constitution, which is the only governmental
framework for the United States. If the claim of U.S. plenary power over
Indians isn't based on the U.S. Constitution, and isn't based on the free
consent of Indian nations in treaties, then what is it based on?

Thomas takes issue with what he says is "the Court's inadequate
constitutional analysis." Indeed, states Thomas, "I cannot agree with the
Court ... that the Constitution grants to Congress plenary power to
calibrate the 'metes and bounds of tribal sovereignty ... I cannot locate
such congressional authority in the Treaty Clause .... or the Indian
Commerce Clause."

Of the 1978 U.S. v. Wheeler decision, Thomas said, "I am not convinced it
was correctly decided." Further: "To be sure, its makes sense to
conceptualize the tribes as sovereigns that, due to their unique situation,
cannot exercise the full measure of their sovereign powers ... But I do not
see how this is consistent with the apparently 'undisputed fact that
Congress has plenary authority to legislate for Indian tribes in all
matters, including their form of government.'"

The very definition of sovereignty is the primary reason that Justice
Thomas gives for his doubt about congressional plenary authority to
legislate for Indian tribes in all matters. Quoting Black's Law Dictionary,
he notes that sovereignty is defined as "the entity 'in which independent
and supreme authority is vested.'" Based on this clear acknowledgment that
sovereignty means "independent," Thomas concluded, "It is arguably the
essence of sovereignty not to exist merely at the whim of an external
government."

Citing Judge William Canby's "American Indian Law in a Nutshell," the
majority opinion, refers to "independence," but with an Orwellian twist on
the term. (Perhaps embarrassed by its use of a volume from the "nutshell"
series as an authoritative source, the Court deleted "in a Nutshell" from
its citation of the book's title). The majority opinion states: "[T]he
independence of the tribes is subject to exceptionally great powers of
Congress to regulate and modify the status of tribes."

The term "Orwellian" refers to George Orwell's amazingly prescient book
"1984", in which he portrays a world where people use "double speak," a
language in which words take on the exact opposite of their ordinarily
understood meaning. Thus, in double speak, "freedom is slavery," "war is
peace," "ignorance is strength," and so forth. In the majority opinion of
U.S. v. Lara, the U.S. Supreme Court uses a form of double-speak to portray
the word "independence" as not meaning "free and independent," but rather,
"subject to" the plenary power of Congress "to regulate and modify the
status of tribes."

By suggesting that the word "independence" means the exact opposite of its
ordinarily understood meaning of "free and unrestrained," the Court's use
of the English language in this respect defies both logic and veracity.
This seems symptomatic of the "schizophrenia" and "confusion" in federal
Indian law that Justice Thomas has pointed out in his opinion.

For the first time ever, a sitting member of the Supreme Court has opened
the path toward a more thorough and candid examination of the very
questionable foundation of federal Indian law. We can only hope that the
Thomas opinion leads to a day when U.S.-Indian relations will be predicated
on justice and fairness, historical accuracy and intellectual acuity.

Steven Newcomb is the Indigenous Law Research coordinator at Kumeyaay
Community College (located on the reservation of the Sycuan Band of the
Kumeyaay Nation), co-founder and co-director of the Indigenous Law
Institute, and a columnist for Indian Country Today.