Over the last 20 years, the Supreme Court has led a massive assault on tribal sovereignty. Although it has acted to affirm expansive tribal powers over tribal members, it has substantially curtailed tribal power over non-members, including both non-Indians and Indians who are not tribal members. At the same time the Court has stripped tribes of governmental powers they had previously held in Indian country and it has increased the powers of state governments in Indian country. This transfer of power from tribes to states has occurred without congressional authorization or executive approval; indeed, it contradicts both congressional and executive policy, which, in recent years, has strongly supported the revitalization of tribal governments.
These recent developments might be explained by the Supreme Court's recent forays into the field of state sovereignty. A stable feature of the Rehnquist Court over the last 10 years is the effort to limit congressional power over state governments. This has been achieved both by narrowly construing the powers granted by the Constitution to Congress and by interpreting the Constitution in such a way as to immunize states from certain types of intrusions by federal power. This conflict presents a zero sum game. Increases in state power are achieved by decreases in federal power. Because state power is assumed to be plenary, and federal power limited to those powers expressly granted by the Constitution, any decrease in federal power is immediately filled by reserved state powers.
In recent years, the Supreme Court appears to have assumed that a similar situation exists with respect to the relation between state and tribal power. State power is inherent, and tribal power is limited. When tribal power is curtailed, the state steps in to fill the void. But this view about the relation between state and tribal power is inaccurate and misleading. When state powers are increased at the expense of tribal powers, there is not a mere shift in the relation between these two sovereigns as there is in the case of state-federal relations. Rather, there is an intervening actor: the federal government. When tribal power is decreased, state power does not immediately fill the void. The sovereign that fills the void is the federal government. The Constitution grants the federal government exclusive power over Indian affairs. Thus, when tribal powers are decreased, the federal government steps in as sovereign, not the states. If state power fills the void left by a decrease in tribal power, it can only do so by an exercise of federal power delegating its authority to the states.
The recent cases that have led to an increase in state power vis-?-vis the federal government have been achieved by a concomitant decrease in federal power. The recent increases in state power vis-?-vis tribes have decreased tribal powers, but that decrease can only come from a concomitant increase in federal power. In the non-Indian case, states have plenary power and the federal government has limited and enumerated powers. In the Indian case, it is the federal government that traditionally has had plenary power while the states have had only those powers over tribes expressly delegated to them by Congress. This means that any limitation on tribal power has to be achieved by an act of the federal government that strips them of inherent, pre-existing sovereignty. Any increase of state power in Indian country has to come from a second act of federal power delegating the plenary power of Congress to state governments.
The Supreme Court's recent actions curtailing tribal sovereignty are thus not merely an extension of recent doctrinal developments that have increased state sovereignty at the expense of federal powers. Rather, they represent affirmative exercises of federal power that strip tribes of inherent powers they previously possessed and transfer those powers to the states, who never had those powers.
This exercise of federal power is especially troubling because it comes not from Congress nor from the President, but from the Supreme Court. It is troubling enough that the Court has interpreted the Constitution as granting Congress plenary power over Indian tribes, effectively depriving them of constitutional protections to which they would be entitled if they were non-Indian institutions. It is far more worrisome that the Supreme Court has itself begun to exercise this plenary power in a manner that limits tribal sovereignty. The Constitution grants Congress the power to regulate Indian affairs and the President the power to enter treaties with Indian nations, with the advice and consent of the Senate. There may well be a role for federal common law to adjudicate disputes among the tribes, the states and the federal government. In recent years, however, both Congress and the President have affirmatively acted to preserve and expand tribal sovereignty. The Supreme Court's limitations on tribal sovereignty are contrary to the policy of the other branches. More importantly, the Court's attack on tribal sovereignty is itself a form of conquest - one that is happening today, not long ago.
Why doesn't the Court see things this way? I believe most Americans have the view that the United States conquered the Indian nations long ago and that remaining vestiges of tribal sovereignty are an anomaly. The Supreme Court seems to share this view, at least with regard to purported assertions of tribal power over non-Indians. The Court appears to view tribal governments as racially exclusive and undemocratic, and thus, inherently suspect, particularly because existing laws do not allow federal court review of tribal court judgments. To protect the rights of nonmembers, the Court has slowly chipped away at the retained sovereignty of Indian nations. This trend began in 1978 with a case that stripped tribes of all criminal jurisdiction over non-Indians (Oliphant. v. Suquamish Indian Tribe) and continued in 1981 with a case that substantially limited civil jurisdiction over non-Indians (Montana v. United States).
Nevada v. Hicks (2001) continues this line of cases. However, it is not merely an incremental step in the process. Hicks has the potential to destroy tribal sovereignty as we have known it. The decision not only misunderstands the historical role of tribal governments in the federal system, but it also misunderstands established federal Indian law principles and treaty obligations. The Supreme Court views itself as engaged in the task of reconciling anomalous tribal governments with the United States Constitution, and the balance of power between state and federal governments, while protecting the civil rights of those who might otherwise find themselves under the power of tribal governments to which they cannot belong and which would not accept them as citizens. I view the situation differently. The Supreme Court has effectively deprived tribes of rights and powers that would have been protected had they been non-Indians.
Nevada v. Hicks misstates precedent, ignores current congressional and presidential policy, and violates existing treaties. Rather than a careful application of existing principles of law, Hicks represents a wholesale rewriting of federal Indian law in a manner that is as unexpected and as politically activist as was the Court's decision in Bush v. Gore.
Joseph William Singer is a professor of law at Harvard University. This article is excerpted from a presentation at a symposium on tribal sovereignty last October at the New England School of Law, scheduled for publication in the New England Law Review.