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Native Nations and the Constitution: An Inquiry into “Extra-Constitutionality”

Indian Law Commentary Series

The full text of this Essay may be found by clicking on the PDF link to the left.

Federal Indian law is oftentimes characterized as a niche and discrete area of law, but this depiction really misstates the breadth and relevance of the field. Federal Indian law is a horizontal subject: virtually every area of law in the American canon has an “Indian law” component: taxation, water rights, civil and criminal jurisdiction, labor law, and so on. With 567 federally recognized Indian tribes in the United States,1×1. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 82 Fed. Reg. 4915 (Jan. 17, 2017). which control over 60 million acres in the contiguous forty-eight states alone,2×2. David. H. Getches et al., Cases and Materials on Federal Indian Law 24 (7th ed. 2017) (stating that there are 67.2 million acres of land in the contiguous forty-eight states); see also Joseph William Singer, Sovereignty and Property, 86 Nw. U. L. Rev. 1, 21 (1991) (providing historical numbers for acres under tribal control). Indian tribes are an integral part of the legal fabric of America.

At the same time, American Indians are — metaphorically and literally — outside the standard frame of American law. Since the 1800s, Indian tribes have been characterized as “anomalous” within the U.S. federal system.3×3. The relation of Indian tribes as preexisting sovereigns situated within the borders of the United States “has always been an anomalous one and of a complex character.”  United States v. Kagama, 118 U.S. 375, 381 (1886). See generally Gerald L. Neuman, Anomalous Zones, 48 Stan. L. Rev. 1197, 1202 n.30 (1996) (mentioning two instances in which the Supreme Court referred to tribes as “domestic dependent nations”). This unique status has largely been created by centuries of federal law and policy, although deeply embedded tribal values have also played a role. Through treaties, the Constitution, federal statutes, and Supreme Court jurisprudence, the distinct status of tribes as sovereigns has been repeatedly affirmed in both domestic and international law. This history sets a baseline for understanding Indian tribes’ historical and continued resistance to integration and assimilation, which contrasts with the story of immigrants as well as those brought to this continent involuntarily as slaves.4×4. See generally Charles F. Wilkinson, American Indians, Time, and the Law 14 (1987) (discussing the desire of tribes to maintain a “measured separatism” and avoid assimilation). Engaging with colonial powers — and ultimately, the United States — on a sovereign-to-sovereign basis since first contact, tribes have sought largely to be left alone to govern their own affairs.5×5. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831) (noting that the Cherokee Tribe intended to prove itself, among other things, “capable of managing its own affairs”).

Tribes’ motivations for safeguarding their differentness are multi-faceted, but history shows that commitments to protecting and defending Indian lands, as well as the fight for continued cultural survival, were and remain central motivations. Hundreds of treaties and governmental policies designed — albeit haphazardly and inconsistently — to keep Indian tribes together, protected from encroachment by land-hungry settlers, oftentimes on reservations, further reflect this.6×6. Most of the several hundred treaties between the United States and tribes are collected in Indian Affairs: Laws and Treaties (Charles J. Kappler ed., AMS Press 1972) (1904–1928). For general background on the American Indian treaty tradition, see generally Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (1994). So tribes’ mediated position — as situated both within and without the United States7×7. See Kal Raustiala, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law 46 (2009). as “domestic dependent nations”8×8. Cherokee Nation, 30 U.S. at 17.  — has been characterized as Indian peoples’ desire for “measured separatism.”9×9. Wilkinson, supra note 4, at 14 (coining the phrase “measured separatism” to refer to the desire of tribes to continue to live apart from white society, and to maintain their cultural and political difference).

In the modern era, Indian law cases continue to move through the federal courts at fairly high rates, with a significant number heard at the Supreme Court.10×10. See Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933, 942 (2009). But even among advocates with shared commitments to tribal rights, there remain unanswered questions about how best to advocate for tribal sovereignty within the larger framework of federal law and the Constitution. At times, arguments for tribal sovereignty and Indian rights focus on ensuring the same fair and equal treatment for tribal governments and Indian people that are otherwise provided in U.S. law.11×11. See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 288–91 (1955) (holding that the Fifth Amendment does not protect the aboriginal title interests of Native Alaskans); Joseph William Singer, Reply Double Bind: Indian Nations v. The Supreme Court, 119 Harv. L. Rev. F. 1 (2005) (critiquing that decision as discriminatory and unjust); Joseph William Singer, Well Settled?: The Increasing Weight of History in American Indian Land Claims, 28 Ga. L. Rev. 481, 519–27 (1994) [hereinafter Singer, Well Settled?] (same). At other times, arguments hinge on — in the words of the late scholar Phil Frickey — Native American exceptionalism.12×12. Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431 (2005) (arguing that federal Indian law is exceptional within the framework of American law).

The tension between formal equality and respect for difference in the Indian law context is more than just a semantic distinction. A capacious understanding of equality — as is presented in the international indigenous rights literature regarding conceptions of equality for indigenous peoples,13×13. See, e.g., S. James Anaya, Keynote Address: Indigenous Peoples and Their Mark on the International Legal System, 31 Am. Indian L. Rev. 257 (2007); cf. Will Kymlicka, Theorizing Indigenous Rights, 49 U. Toronto L.J. 281 (1999) (reviewing S. James Anaya, Indigenous Peoples in International Law (1996)). for example — can perhaps accommodate and reconcile this potential incoherence. But within the framework of U.S. law as understood by the three branches of government, and by the Supreme Court in particular, American law operates more as a blunt instrument. American jurisprudence may not be fully capable of embracing more nuanced conceptions of equality that acknowledge and reify the idea that fair and equal treatment for Indian nations requires specialized understanding and application.14×14. Cf. Morton v. Mancari, 417 U.S. 535, 551, 553–54 (1974) (holding that a preference for Indians in hiring and promotion at the Bureau of Indian Affairs did not violate the Equal Protection Clause because tribes are political, not racial, entities). And because it appears that the courts — and the Supreme Court in particular — may be reluctant to conceive of Indian rights in this way, it is important to contemplate how federal law does — or ought to — relate to tribal rights.

The puzzle of reconciling federal Indian law with larger American jurisprudence has both internal and external dimensions. That is to say, in some cases, the United States government has used Indian difference to justify abhorrent acts against Indian tribes and Indian people.15×15. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (holding that building a road through a site sacred to Native Americans was not a violation of the First Amendment Free Exercise Clause, even though the Court acknowledged that doing so would virtually destroy their ability to practice their religion); Tee-Hit-Ton, 348 U.S. at 272 (holding that the Fifth Amendment Takings Clause did not constitutionally require the payment of just compensation for the taking of aboriginal title); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (holding not only that Congress could unilaterally abrogate a treaty with an Indian tribe, but also that, despite allegations of fraud and deceit, Congress’s acts were presumed to be in perfect good faith and were not justiciable by the Supreme Court); see also Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners, 52 UCLA L. Rev. 1061 (2005) (critiquing Lyng for failing to protect American Indian religious freedom); Singer, Well Settled?, supra note 11, at 483–85. For example, the Supreme Court has relied on such distinctions to deny First Amendment religious freedoms to American Indians16×16. Lyng, 485 U.S. at 447–53; see also Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of Indian (Cultural) Appropriation, 94 Tex. L. Rev. 859, 877–78 (detailing various colonial and early American laws and policies meant to target and eradicate Indian religions). and to hold that tribes were not entitled to compensation under the Fifth Amendment when the U.S. government seized aboriginal title.17×17. Tee-Hit-Ton, 348 U.S. at 284–85. Understood in this light, theories of racial inferiority around Indianness directly fueled the jurisprudential exceptionalism that deprived Indians and Indian tribes of equal rights under American law.18×18. See Riley & Carpenter, supra note 16.

Ironically, at other times, Indian nations themselves are bound to advance positions that may be harmful to tribes or tribal members as a consequence of adhering to a principle of exceptionalism. For example, because existing jurisdictional structures make American Indians more likely to be criminally prosecuted by the federal rather than state governments,19×19. See, e.g., United States v. Antelope, 430 U.S. 641 (1977). Indians on balance serve longer prison terms than non-Indians for the same crimes.20×20. See, e.g., Indian Law & Order Comm’n, A Roadmap for Making Native America Safer: Report to the President & Congress of the United States 119 (2013), http://www.aisc.ucla.edu/iloc/report/files/A_Roadmap_For_Making_Native_America_Safer-Full.pdf [https://perma.cc/7663-VADY] (emphasizing that federal sentences are, on balance, longer than state sentences; accordingly, due to existing jurisdictional structures, American Indians receive longer sentences than their non-Indian counterparts). Though these disparities arouse ample criticism on the ground in Indian communities, tribes exist in a double bind, where they must continue to defend a system that produces inequities in order to stave off any further encroachment by state governments.

These and many other scenarios raise pressing concerns. Even in the Indian law cases just decided in the Court’s last Term, including United States v. Bryant21×21. 136 S. Ct. 1954 (2016). and Dollar General Corp. v. Mississippi Band of Choctaw Indians (Mississippi Choctaw),22×22. 136 S. Ct. 2159 (2016). the question of tribal authority — as applied in civil as well as criminal contexts, as applicable to the rights of Indians and non-Indians, and as largely unconstrained by the U.S. Constitution’s Bill of Rights — is knocking at the door of federal Indian law and is demanding to be answered.

So what exactly does it mean for a sovereign to be both within and without the federal system? What is the best way to understand tribes, which are mentioned expressly in the Constitution, and yet largely remain beyond the reach of the Bill of Rights?23×23. As discussed herein, key components of the Bill of Rights were codified and extended to Indian tribes through the Indian Civil Rights Act of 1968 §§ 201–203, 25 U.S.C. §§ 1301–1303 (2012). What is the present and future condition of Indian nations, which seek robust rights of self-determination and self-governance within the contours of American federalism? And how, if at all, are these rights modified when tribes have extensive dealings with non-Indians?

This brief Essay sketches out a few thoughts regarding the past, present, and future of federal Indian law, particularly in relation to the question of whether, and to what extent, Indian tribes are “extraconstitutional.”24×24. Ed Kneedler, Deputy Solicitor Gen., U.S. Dep’t of Justice, Panel Comments at the Harvard Law School Symposium: The Indigenous Rights Movement: Tribal, Domestic & International Law Dimensions (Oct. 14, 2016) (stating that tribes are not “extra-constitutional” and that to describe them in these terms is inaccurate). See generally Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015) (providing a detailed historical account of the Indian Commerce Clause and the Framers’ understanding of tribes at the country’s formation). The primary goal of this Essay is to demonstrate how and why the phrase, first used by Justice Kennedy in relation to Indian tribes in 2004,25×25. United States v. Lara, 541 U.S. 193, 213 (2004) (Kennedy, J., concurring in the judgment) (“[I]t should not be doubted that what Congress has attempted to do is subject American citizens to the authority of an extraconstitutional sovereign to which they had not previously been subject.”). is worth further consideration and may offer insights as to how to think about Indian rights and tribal sovereignty going forward.

As an initial matter, I concede the somewhat provocative nature of the inquiry. It’s quite clear that the Constitution contemplates Indian tribes and tribal rights and establishes a structure for federal-tribal relations. At the same time, the Bill of Rights does not apply directly to the tribes via the Constitution (though Congress has addressed this gap through statute). Thus, questions remain as to whether and to what extent tribal governments are constrained by the Bill of Rights or comparable restrictions, and how inherent tribal sovereignty relates to the power of Congress to modify tribal rights.

With such a broad charge, this Essay gives relatively superficial treatment to these questions, but it aspires to spark conversation about Indian law today and contemplate challenges and opportunities for future advocacy in the field. Part I provides a brief and succinct history of federal Indian law, particularly as it pertains to the constitutional status of tribes, carrying this analysis up through the passage of the 1968 Indian Civil Rights Act26×26. Pub. L. No. 90-284, 82 Stat. 73, 77 (1968) (codified as amended in scattered sections of 18 U.S.C., 25 U.S.C. and 42 U.S.C.). (ICRA). In so doing, Part I lays the foundation for understanding the ramifications of tribal exceptionalism in both civil and criminal cases arising in Indian country, with a particular focus on the Supreme Court’s immediate post-ICRA examination of these questions. Part II moves into the contemporary cases, focusing in particular on Justice Kennedy and the concerns he continues to raise about tribes’ unique and anomalous status, drawing connections to his opinions in cases regarding the application of the Bill of Rights at Guantanamo and in other contexts. Recent cases, particularly those decided in the 2016 Term, illustrate some of the present and future challenges in the field. This Essay concludes by highlighting core tenets, pointing out limiting principles, and touching on some likely future complexities for lawyers practicing Indian law.

* Professor of Law, UCLA School of Law; Director, Native Nations Law and Policy Center. This Essay drew heavily on conversations at the symposium, The Indigenous Rights Movement: Tribal, Domestic & International Law Dimensions, which took place at the Harvard Law School from October 13–14, 2016. I am particularly indebted to those who participated with me on a panel on this subject and whose incredible insights and experience have enriched the field and my own thinking in this area: Ed Kneedler, Riyaz Kanji, Noah Feldman, and John Dossett. My thanks to Dean Martha Minow and the Harvard Law School for providing generous funding for the conference, and to UCLA School of Law and Dean Jennifer Mnookin for continued research support. Rosemary McClure provided outstanding research assistance, and Kristen Carpenter and Richard Re gave invaluable assistance by reading and commenting on early drafts. Special appreciation to my students at UCLA, Harvard, and beyond, who continue to inspire me.