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The thesis of this article is that by examining Federal Indian Law one better understands that the American constitutional project includes many instances in which power is claimed by force and justified by necessity. Yet jurists sit in judgment, requiring an accounting even when they condone or license exercises of such power. Moreover, occasionally, judges object in the name of limited government powers, of obligations to recognize separately-constituted polities, and of individual rights to equality and liberty. Although lacking much by way of citation to constitutional text, Federal Indian Law represents an example of this genre of federal lawmaking, with its commitment to constitutionalism by judges schooled in the traditions of Marbury v. Madison.
The need to bring Federal Indian Law to the fore of the elaboration of American legal doctrine has more urgency in the wake of 9/11, as several lawsuits now challenge the prosecutorial powers of the Executive Branch. Federal Indian Law cases, like these "war cases," are about whether unlimited authority can be founded in physical power. Decisionmaking in both sets of cases requires elaboration from a Constitution with little direct text and a great deal of Court-based extrapolation. In both kinds of cases, the government is asserting a right to power and challengers plead, in the name of the Constitution, for constraint.
One such example is United States v. Lara, in which federal prosecutors charged Billy Jo Lara with a criminal offense after the Spirit Lake Nation of North Dakota had done so and obtained a conviction. In Lara, the federal government relied on the "dual sovereignty exception" to double jeopardy, crafted in the 1920s by the Supreme Court to prevent state prosecutions from immunizing individuals from federal enforcement of Prohibition. The Lara prosecutors have argued that doctrine ought similarly to permit sequential tribal and federal prosecutions. One legal question is whether the federal prosecution is barred because the tribe's jurisdictional power is derivative of (rather than separate from) the federal government. Another question is which branch of government—the Court or Congress—decides that issue.
Under current doctrine, a further wrinkle is presented because a tribe's criminal jurisdiction reaches only "Indians" who are its members. That proposition stems from the 1978 Supreme Court decision of Oliphant v. Suquamish Indian Tribe, holding that tribal courts had criminal jurisdiction over "Indians" but not over non-Indians. In 1990, in Duro v. Reina, the Court further defined the jurisdictional line by concluding that tribal courts had jurisdiction only over their own members. Soon thereafter, Congress intervened by stating that it "recognized and affirmed" tribes' "inherent power" to exercise misdemeanor criminal jurisdiction over "all Indians."
How might these questions of tribal criminal jurisdiction and jurisdiction-by-identity be answered? From the perspective of those tribal communities that claim the status of foreign nations subjected to conquest and colonialization, neither the courts or Congress are legally competent to decide. From that vantage point, Federal Indian Law is an illegitimate exercise in power with no source of authority other than physical might. But for those acknowledging the history of conquest yet believing that disentanglement of tribes from the United States is now implausible, the questions are ones to which legal actors in the United States need to respond. Here, I offer ways to reason, in light of constitutional aspirations embodied in Marbury, about the exercise of criminal jurisdiction by the tribes and its relationship to litigants' political affiliations and about federal courts' exercise of jurisdiction based on distrust of other court systems.
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