WASHINGTON - Tribes have not stayed on the sidelines as U.S. v. Lara has proceeded with its many potential implications for sovereignty (as reviewed in previous sections of this series). An amicus curiae or "friend of the court" brief by the National Congress of American Indians captures the bind many tribes sense themselves in as the U.S. Supreme Court considers whether or not Congress has properly restored their power to prosecute non-member Indian offenders.
Many past acts of Congress, NCAI notes, "diminished tribal territory and power. This Court has never acted to rein in those congressional abrogation of and amendments to tribal sovereignty, but has permitted federal Indian policy to proceed from isolation, to assimilation, to termination, to self-government, without a murmur of any constitutional impediment ? nothing in the Constitution or in this court's precedents suggests that Congress's authority in this area is a one-way ratchet, permitting diminution of tribal sovereignty but never the recognition or affirmation of it."
This opinion, along with others less formally expressed, is a part of the psychological drama that plays out for tribes around "sovereignty issues" that reach the high court - especially when that court is perceived by many to be as conservative as the current one.
But another reading of the case suggests the high court itself is in a bind. Having ruled in 1990 that tribes, through a dependent relationship with the United States, had lost the authority to prosecute the minor crimes of non-member Indians, the court now finds itself asked to decide whether Congress restored such "inherent power" to tribes, making them whole again in this respect; or simply delegated its own authority, in effect reducing them to the status of a federal agency.
There seems to be no doubt that Congress intended to restore inherent power. One of several questions before the court in Lara is whether in doing so, Congress reinterpreted the 1990 Supreme Court ruling. That would render the congressional restoration unconstitutional, hands down. Such a finding in Lara would overthrow tribes' current authority to prosecute the minor crimes of non-member Indians. It might or might not also lead the court to a fuller reconsideration of tribal authority.
But NCAI and others argue that far from altering a Constitutional holding of the high court, Congress simply created federal common law. The large body of federal common law generally maintains uniformity among, and fills in gaps between, so-called positive federal law - treaties, statutes, executive orders, federal regulations. Resort to common law by courts and Congress alike is especially common where the reasons for established law are unclear, or where such laws create barriers to consistent positive federal law.
In the 1990 Duro case ruling that Lara stems from, the Supreme Court expressly stated that Congress could find a remedy if a resulting jurisdictional void opened up in Indian country. When Congress did so, NCAI and others argue, it simply removed a barrier to tribal authority as that authority is established in positive federal law - a quintessential function of federal common law, and by no means unusual in court dealings with Indian country, according to NCAI.
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.
Separately from the 250-plus member tribes of NCAI, another 18 tribes got together on one amicus brief supporting tribal sovereign authority to prosecute non-member Indians. Charlie Hobbs (of the law firm Hobbs Straus Dean & Walker LLP, long active in Indian-specific litigation) serves as co-counsel for six of these amici tribes. He believes the Supreme Court simply muffed a crucial analysis in the 1990 Duro ruling.
"It's a little dramatic to say the Supreme Court got it wrong, but that's exactly what happened."
The suspected oversight concerns a 1934 Department of Interior solicitor's opinion, drafted in the wake of the Indian Reorganization Act. In 89 pages, it spells out the power of tribes over nonmembers living in communities on reservations. The high court took it up in examining the history of how Indian-specific rulings have been handled in the past, but found the detailed opinion non-definitive.
"Justice Kennedy must not have seen the clause ? that says tribes do have authority over nonmembers living on reservations," Hobbs said. A later, smaller opinion in the same vein from Interior uses "non-member" to mean a "non-Indian," which could have reflected confusion back on the 89-pager.
Hobbs added that tribes have exerted prosecutorial authority in court over non-member Indians for more than 100 years, at least since Interior's establishment of CFR Courts of Indian Offense in the 1880s. As their moniker implies, these courts operate under the Code of Federal Regulations. The Secretary of Interior set them up to try those who broke the peace on reservations. They are being phased out but 45 tribes still operate a CFR court, Hobbs said.
"Since the 1880s, the CFR courts have had jurisdiction over non-member Indians."