WASHINGTON - In questioning the oral arguments of opposing attorneys in U.S. v. Lara, several U.S. Supreme Court Justices implied that considerations of due process will guide their decisions.
Their out-loud deliberations provided at least some public glimpse of a center to questioning that otherwise fit the description provided by Tex Hall, president of the National Congress of American Indians and chairman of Three Affiliated Tribes - "nine justices talking nine different ways."
Justice Susan Day O'Connor began the Jan. 21 questioning with a due process issue. "Is it the case that the Bill of Rights has not been found to apply?" in tribal courts, she asked Department of Justice solicitor William S. Kneedler, arguing the government's case. He responded that the Indian Civil Rights Act "extends many" due process protections to tribal members.
"But not all of them?"
"Not all of them."
Responding to Alexander F. Reichert, appointed by the court as defendant Billy Jo Lara's attorney, Justice Stephen Breyer went so far as to say a due process defense "would have won your case" - that is, the court would have been more sympathetic to the position that a non-member Indian cannot receive due process of law in a tribal court because a nonmember cannot disenroll from the tribe. Justice Antonin Scalia asserted that any tribal member could do so, in effect withdrawing from the tribe, if he or she does not wish to accept tribal court jurisdiction. (Just for the record: additional conversation with Kneedler clarified that accountability for crimes already committed would not be affected by a decision to disenroll.)
Enrolling in a tribe subjects one to "what might be called Indian law," Scalia said. The inability of a non-member Indian to disengage from this "Indian law" of a particular tribe would apparently be construed a due process problem, by this line of thinking.
Instead, Reichert had argued for the defendant Lara that Congress could not restore tribal authority to prosecute a non-member Indian for minor crimes. The plea led several justices to remark on the sovereignty of Congress.
"Congress can define the meaning of dependent," as in the phrase dependent sovereignty, Justice David Souter said.
"Why not allow the Congress to define sovereignty?" Breyer asked. "Naturally Congress has the power," he added, noting that there is no explicit constitutional limit on that power over tribes - so any limit must be found in the Constitution.
Justice John Paul Stevens flatly stated "We haven't said that" - that Congress cannot change a Supreme Court ruling on tribal sovereignty.
A significant point, especially if it reflects the thinking of a majority on the court. For in that case, the high court would be conceding that quite aside from particular case details, Congress can properly act to restore authority to tribes that has been curtailed by the high court.
But another justice, Anthony M. Kennedy, told Kneedler, "You're giving us no ability to draw a line ? If we rule in favor of your position, it must necessarily extend to non-Indians" - that is, to tribal court jurisdiction over non-Indians who commit minor crimes on reservations.
"That's a step I'm not prepared to contemplate," Scalia said.
But if congressional authority seemed to have the court in two minds on this case, the same cannot be said for tribal authority over non-member Indians. Here, only Justice Ruth Bader Ginsburg seemed to speak for tribes, asking why they should not be able to prosecute wrongdoers who are hurting their citizens.
Otherwise, the justices confined their questions on this subject to the theme of consistency within the framework of federal law. Justice Souter repeatedly questioned the logical consistency of permitting a dependent power to exercise inherent sovereign authority over non-member citizens, including non-member Indian citizens. "The very concept of this insubordinate power is inconsistent with the exercise of the tribe's own sovereign jurisdiction ? If we stick with the concepts we're using, they pretty much force the conclusion ? that the tribe is exercising federal authority."
Scalia, widely considered the conservative nerve center of a court known for states'-rights rulings, also spoke against tribal "inherent power," at least on the narrow point of authority Congress sought to restore. "What's at issue here is that it was taken away and given back. It's pretty hard to consider that inherent."
Elsewhere he said, "The power that tribes have, they have at the pleasure of the United States."
In the weeks leading up to the oral argumentation, commentary began to percolate throughout Indian country, much of it to the effect that a just and moral framework for tribal sovereignty predates federal law, based on the Constitution and its mention of sovereign tribes, the prior existence of tribes, and the treaties they made with the occupying U.S. government.
J.D. Colbert, head of the North American Native Bankers Association and a consultant to Chickasaw Nation-owned Bank2 in Oklahoma, said that by going back to first principles such as inherent sovereignty, Lara offered a chance to revisit foundational decisions in federal Indian law. For instance, he said, the influential trilogy of Indian cases in the early court, presided over by Chief Justice John Marshall, relied on precedents that were non-constitutional.
"To me there's an opportunity in Lara to re-examine all these first principles. I do not by any means see the Supreme Court swinging for the fences. But they could lay down a bunt and get to first base."
The high court's decision is expected by the end of June.