I'm confused. According to my dictionary, the word "inherent" means, "existing in something as a permanent and inseparable element, quality, or attribute." The word also relates to "inhere," namely, "to belong intrinsically." Thus, my confusion arises from the claim by some that Congress has the power to "diminish" or "restore" what is referred to as "inherent tribal sovereignty." If such sovereignty is "inherent," meaning "permanent" and "intrinsic" to the very existence of a given Indian nation or people then, logically and arguably, it cannot be diminished or restored, not even by the Congress of the United States.
Such specific attention to semantic detail, however, has never been characteristic of the way federal Indian law and policy is dealt with in the United States.
Now comes the case U.S. v. Lara, which the Supreme Court is about to hear. At issue is whether Indian "tribes" (I prefer the term nations) have the authority to prosecute the minor crimes of non-member Indians. In its 1990 Duro v. Reina decision, the Court held that tribes, through a dependent relationship with the U.S., had lost the authority to prosecute non-member Indians. Now the Court is asked to decide whether Congress restored such "inherent power" to Indian tribes.
"Restored inherent power"? If such power is truly inherent then Indian nations could not have "lost" it, nor could Congress have rightfully "deprived" Indian nations and peoples of such power. But, instead of looking at the terminology in this manner, we're asked instead to set aside the ordinary meaning of the word "inherent" in favor of the plenary power doctrine. This doctrine, of course, is the idea that Congress, on behalf of the United States, has "plenary" (virtually unlimited) legislative power over Indian nations. (Where Congress supposedly got this power over originally free and independent Indian nations is a question not usually addressed)
As Indian Country Today correspondent Jerry Reynolds recently wrote of an amicus curiae brief filed in the Lara case by the National Congress of American Indians: "NCAI notes as well that the congressional record in restoring tribal 'inherent power' to prosecute non-member Indians plainly indicates that the restoration is not a delegation of federal authority, but a clarification of tribal authority." Here, then is the same confusion about "restoring" power said to be "inherent."
In a dissenting opinion in an appeals court ruling in U.S. v. Lara, four judges for the United States Court of Appeals for the Eighth Circuit, express dissatisfaction that the majority did not base its opinion "on the Constitution, nor did the Constitution require the result that the Court reached there." Instead, said the dissenting judges, the majority had based its opinion "on federal common law, nothing more and nothing less."
In the Indian Civil Rights Act (ICRA), said the dissent, "Congress exercised its plenary legislative power over federal common law in general and Indian affairs in particular to define the scope of inherent Indian sovereignty." And what did the dissent say about this "inherent sovereignty?" That "Congress restored to the tribes a power they had previously exercised but had lost over the years as a result of Supreme Court decisions."
So, let us get this straight. The dissent referred to "inherent Indian sovereignty" as "a power" that Indian nations had "lost," not as a result of congressional action, but as a result of "Supreme Court decisions." Reflecting the same confused logic we examined at the outset of this column, the Eighth Circuit dissent depicts Congress as having "restored" through ICRA the "inherent power" that Indian nations had supposedly "lost" through a number of Supreme Court rulings. (The question of how originally free and independent Indian nations supposedly became subject to the U.S. Supreme Court is also never dealt with.)
Fortunately, there is much in the Eighth Circuit dissent that expresses a powerful critique of the usual perspective on federal Indian law. For example we find the following sentence from the dissent regarding the majority opinion: "The court opines in the present case that 'once the federal sovereign divests a tribe of a particular power, it is no longer an inherent power and may only be restored by delegation of Congress's power.'" (The question that the dissent does not address here is this: If "a particular power" was an "inherent power" to begin with - namely, "an intrinsic and permanent element" of a given Indian nation's existence - then how could that power have been "divested" or "restored" by "the federal sovereign"?)
The dissent goes on to say: "This [the majority's] holding draws on statements in Supreme Court opinions that a tribe's inherent sovereignty consists of those aspects of sovereignty that the tribes 'retained' despite the federal government's overriding sovereignty [citing Duro]? The court's apparent premise is that [an Indian nation's] power cannot be retained once the Supreme Court holds that it can no longer exist."
Notice that that the dissent mentions an "overriding sovereignty" on the part of the federal government without ever identifying the actual basis of the claim that it is "overriding."
Fortunately, however, the dissent did not step away from a discussion of the basis of the claim of an overriding sovereignty on the part of the federal government. First the dissent points out that, in its view, "the origin" of "the Spirit Lake Nation's ability to try Mr. Lara" is not "the ICRA amendments themselves but the full territorial sovereignty that the tribes possessed in the past." After making this point, the dissent then launches into an examination of the "foundation of federal Indian law: Johnson v. McIntosh ?, Cherokee Nation v. Georgia ?, and Worcester v. Georgia."
"An examination of these cases," said the dissent, "shows that in forging the legal relationship between Indian tribes and the government of the United States, 'The Supreme Court in the Marshall trilogy embraced pre-constitutional notions of the colonial process, rooted in the law of nations, involving both inherent tribal sovereignty and a colonial prerogative vested exclusively in the centralized government.'" The dissent goes on to say that "These principles, which the Supreme Court created from extra-constitutional sources, have 'been consistently followed by the courts for a hundred years."
To further explain the "extra-constitutional" [meaning , non-constitutional] basis of federal Indian law principles, the dissent then addressed the Johnson v. McIntosh ruling: "In McIntosh ?Chief Justice Marshall justified federal power over Indian tribes in terms of the right of discovery, a euphemism for the right of conquest."
U.S. v. Lara provides Indian country with the opportunity to fully challenge the most foundational principles of federal Indian law instead of engaging in faint-hearted half-measures.
Why should we accept for even one minute the idea that the United States has any rightful "federal power over Indian tribes" or nations, particularly on the basis of the "right of discovery," (which is more accurately stated as "a right of Christian discovery"). Why, in the 21st century, should we accept the antiquated claim of a U.S. "right of conquest" (albeit, cloaked in "euphemism") over our respective Indian nations? Such a claim stands in violation of our inherent birthright as free and independent nations, and our fundamental human rights. Clearly, it is long past time for Indian country to launch a concerted, well planned, and strategic challenge to such outdated, outmoded, and indefensible notions.
Steven Newcomb, Shawnee and Lenape, is director of the Indigenous Law Institute, and Indigenous Law research coordinator at D-Q University at Sycuan, on the Reservation of the Sycuan Band of the Kumeyaay Nation and is a columnist for Indian Country Today.