"The history points in both directions." -Justice Thomas, concurring in the judgment in U.S. v. Lara.
Just as no one could ever really figure out what Bobbie Gentry's song "Ode to Billy Joe" was about and why Billy Joe jumped off the Tallahatchie Bridge, the Supreme Court's recent decision in United States v. Billy Jo Lara will keep Indian law professors and practitioners up nights trying to figure out where Indian law is headed. With a majority opinion noteworthy for overruling a case without saying so, for relying on a pocket-sized student study guide for substantive doctrine and for a fondness for italics, and a dissent that finds the odd couple of Justices Souter and Scalia in agreement on the proposition that "no one could possibly deny that the tribes are subordinate to the National Government," much of the attention has nonetheless been focused on Justice Thomas's concurrence. Thomas held that "Federal Indian policy, is, to say the least,
schizophrenic," that tribes "either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously," and that this confusion "will continue to haunt our cases."
But more about that later. First, the facts: Billy Jo Lara, a Turtle Mountain Chippewa, was arrested, tried and convicted by the Spirit Lake Tribe, of which he was not a member. Later, for the same offense, he was indicted by a federal court, at which point he claimed double jeopardy. Under the Supreme Court's 1990 case of Duro v. Reina, he was right; under Congress's subsequent "Duro fix" legislation, he was wrong. Mr. Lara argued that in enacting the Duro fix, Congress was giving power to the tribes, and that thus made his tribal prosecution really a federal one, and the second federal prosecution therefore put him in double jeopardy. Congress's words, however, were that it was recognizing and affirming "inherent tribal power," not delegating power to the tribes, and thus that the tribes and the federal government were two separate sovereigns. Double jeopardy wouldn't apply because no one sovereign was trying him twice. The Supreme Court last month held, by a vote of 7 - 2 (though it was more like 5 - 1 - 1 - 2), that the Duro fix meant what it said, tribal power to try non-members was inherent, not delegated by the federal government, and Mr. Lara could be twice put in jeopardy.
In the short term I think Indian nations need to take some immediate steps:
Unless it is seriously inconsistent with cultural values, tribes should provide counsel for all defendants in tribal proceedings who would be entitled to counsel in a state or federal court for the same offense; Wealthier tribes, in their own self-interest, ought to subsidize the above for poorer tribes, as a case against a poorer tribe will affect them as well;
Indian lawyers should continue to coordinate with the Tribal, Supreme Court Project set up by the National Congress of American Indians and NARF and work to make sure only winning cases go up to the high court.
Why these steps? With respect to the first two points, the majority opinion left wide open the door to later challenges to tribal court proceedings based on lack of counsel, finding in this case that such an argument couldn't help Mr. Lara since he was challenging his second federal court case, not his first tribal court one. The Court specifically wrote that, "Other defendants in tribal proceedings remain free to raise that claim should they wish to do so." With respect to the third, the Supreme Court in Indian cases is getting all over the map (Souter and Scalia?) as well as starting to ask some deeper questions about Indian law (Thomas, and Kennedy in his concurrence), the answers to which may not be supportive of Indian sovereignty. As seen in Nevada v. Hicks in 2001, where the failure somewhere along the way to pay Mr. Hicks for the stuffed sheep heads mounted on his wall and damaged in a police search ended up in a terrible decision for tribes, Indian nations need to pay careful attention to what cases go up and try to settle those that aren't going to win or risk too much.
What's the big picture? As Justice Thomas wrote, "the history points in both directions." The history of Indian law has been the history of common law cases decided by judges, from John Marshall on down, making it up as they go along. Alongside this is a history of federal statutes, from allotment to reorganization to termination and back again, all enacted under Congress's broad but not clearly constitutional "plenary power." It was the Court in 1978 in Oliphant that took away with the flourish of a pen the criminal jurisdiction of all 562 Indian nations over non-Indians committing crimes within their borders, and in 1990 in Duro it extended that ban to non-member Indians, like Billy Jo, a Chippewa in a Spirit Lake Court. Congress, however, "overruled" Duro with the "Duro fix," and the Court in Lara said, essentially, "that was then, this is now," and didn't even find it necessary to overrule Duro itself, finding it good law in 1990 but no longer so in 2004.
History, then, is today pointing in the direction of the political branches, and the Court is deferring to them. A similar decision was recently reached by the California courts in finding the Agua Caliente Band subject to the California campaign disclosure laws. Looking deep into the Constitution, as did Justices Thomas and Kennedy, for the source of federal power over Indians, they found, as Gertrude Stein once wrote, "there is no there there." Not finding constitutional authorization for federal power over Indians, however, these courts did not take the step that writers like myself and professors Steve Newcomb and David Wilkins (Vol. 23, Iss. 47) take, arguing that the lack of federal power means the existence of tribal power. Instead, these courts find that lack of federal power means state power or, in Justice Thomas's view, that tribes may not be "sovereigns in any meaningful sense." As to the role of the courts, both the California court and Justice Thomas found that Indian law, not being constitutional, is merely common law, and thus it is subject to overrulings like the Duro fix or overriding public policies like open campaign finance.
What this means, however, is that all the Indian law that upholds sovereignty, from Justice Marshall's Cherokee decisions to cases finding a cause of action for land claims under the Non-intercourse Act or giving force to the trust relationship, are equally up for grabs. As Justice Thomas put it, "tribes either are or are not separate sovereigns," and I don't think many Indian tribes would like the Supreme Court to be the entity that answers that question once and for all. Some Indian advocates might be happy that the era of "judicial plenary power," as they have called it, seems to be waning, and at least in Lara the Court did not follow Oliphant and Duro but acknowledged that the power it exercised in those decisions was not ultimate but instead is subject to the political process that resulted in the "Duro fix." Lawyers and advocates for tribes, however, need to coordinate and closely watch the borders of sovereignty for other encroachments, either from the courts relaxing their vigilance or the political branches extending their grasp.