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U.S. v. Lara Revisits Major Contradictions in U.S. Indian Law

It is practically a mantra in the United States, heard over and over: "Our
court system, while not perfect, is the envy of the world." To suggest
anything other than concurrence is to invite the accusation that the
speaker is being unpatriotic and, of course, when you begin with the
premise that yours is second to none, reform is not a priority. Whoever
expressed this sentiment would do well to study some Indian law and a good
place to begin would be with U.S. v. Lara, handed down on April 19.

On its surface, Lara seems to be a case about the extent or limits of the
jurisdiction of tribes over non-tribal members in criminal cases. Billy Jo
Lara, a member of the Turtle Mountain Chippewa, had married a Spirit Lake
Sioux woman and was living on her reservation. At issue was whether a
member of a tribe other than the Spirit Lake Sioux can be prosecuted by
that Indian nation. The Supreme Court decided in the affirmative. In 1990,
the same court had decided that an Indian nation had no criminal
jurisdiction in Duro v. Reina, a ruling corrected by an act of Congress the
following year. The question: given the universally accepted historical
sovereignty of Indian nations, how did Congress and the federal courts get
the power to micromanage the extent of Indian sovereignty even in such
mundane cases as arrests for drunk driving in Indian country?

The answer, in broad strokes, goes to a serious limitation in the way that
democracies behave and the history of this is found at the beginning of the
republic. Following the American Revolution, the U.S. claimed it had
acquired certain territories that were acknowledged as belonging to the
Indian nations through right of conquest. This assertion was attempted in a
number of places but played out most dramatically in the Ohio region
between 1783 and 1794. When the United States claimed lands to which it had
no clear title other than an assertion of conquest, settlers moved onto
some of these lands as squatters. A low intensity Indian war ensued which
resulted in the most devastating defeat of an American military force at
the hands of Indians in U.S. history - St. Clair's defeat. President
Washington called upon General "Mad Anthony" Wayne to form a professional
army and its first battlefield success came at Fallen Timbers against the
Western Confederacy in August, 1794. The result was that member nations of
the Western Confederacy were forced to withdraw from much of the Old
Northwest Territories.

The years between the Revolution and the War of 1812 were colored by
conflict with Great Britain, tensions on the high seas involving British
conscription of American seamen, and a growing agitation by politicians and
land speculators - who were often the same people - for access to more
Indian land in the west. The War of 1812 was fought while Britain was
occupied with Napolean and ended with an agreement that the British would
withdraw from both its presence and its intrigues south of an established
border. The Indians south of that border were left to fend for themselves.

We hear a lot today about the downside of American culture that is blamed
for such things as raunchy television inappropriate for viewing by children
and a youth culture of sexual decadence which inspired mistreatment of
prisoners in Iraq, but there was a downside to the popular culture in the
early 1820s as well. Although the term "Manifest Destiny" had not yet been
coined, the belief in an entitlement to empire and to the lands occupied by
Indians was taking solid root in expressions of American nationalism.
Americans wanted Indian lands and were determined to acquire them by any
means necessary.

Major elements of U.S. Indian law were born at that moment. In 1823 the
Marshall court was faced with a case involving a U.S. government claim to
Piankeshaw land. The U.S. had no proof that it owned the land. We can
speculate today about John Marshall's options as he mulled the facts in
McIntosh. There was energetic enthusiasm for acquisition of Indian land and
the displacement of the Indians, and little thought supporting fair
treatment of the Indians. Even today the Supreme Court pays attention to
the polls. In 1823 a quick review of a map of Europe would reveal that the
existence of small nations was not unusual. Marshall could have found that
the Indian nations were, as had been well-established, independent
sovereign nations. Had he done so, and thus seriously inhibited U.S.
expansion through Indian country, would he and the Supreme Court have
survived, or would they have been swept away and marginalized in a title
wave of reaction against an unpopular ruling? The U.S. Supreme Court has
often faced such dilemmas and has more often than not framed its decisions
on political expediency and not on solid principles of law. This is a major
way the "tyranny of the majority" discussed in the Federalist Papers has
impacted various underrepresented groups including indigenous peoples,
non-European immigrants, women, slaves and others.

In 1823 the politics of law prevailed, and Marshall designated the Indian
nations as domestic dependencies with which the U.S. had plenary or
absolute power to contend. Absolute power corrupts absolutely and the U.S.
went on to abuse that power to transfer vast quantities of Indian land and
assets to non-Indian hands. Whether intentional or not, Marshall's decision
to diminish Indian sovereignty became a license to steal and by any fair
reading of history, plenty of stealing was done. To the question "Why is it
that an Indian driving drunk through Indian country can be arrested and
tried in an Indian jurisdiction and a white man doing the same thing
cannot?" The answer is that the Court declined to subject white people to
Indian jurisdiction but does not object to racialized politics when the
American majority is perceived to support such politics. John Marshall set
precedents in Indian law which were derived more from politics than from
principles of law. That (even) Justice Thomas found himself conflicted is
surprising only because of the source. If the Court were to revisit these
cases with an eye to prioritize principles of law over politics, the
plenary powers doctrine could be relegated to the dustbin of history where
it belongs.