Lead Opinion
delivered the opinion of the Court.
This case concerns a congressional statute “recognizing] and affirming]” the “inherent” authority of a tribe to bring a criminal misdemeanor prosecution against an Indian who is not a member of that tribe — authority that this Court previously held a tribe did not possess. Compare 25 U. S. C. § 1301(2) with Duro v. Reina,
I
Respondent Billy Jo Lara is an enrolled member of the Turtle Mountain Band of Chippewa Indians in north-central North Dakota. He married a member of a different tribe, the Spirit Lake Tribe, and lived with his wife and children on the Spirit Lake Reservation, also located in North Dakota. See Brief for Spirit Lake Sioux Tribe of North Dakota et al. as Amici Curiae 4-5. After several incidents of serious misconduct, the Spirit Lake Tribe issued an order excluding him from the reservation. Lara ignored the order; federal officers stopped him; and he struck one of the arresting officers.
The Spirit Lake Tribe subsequently prosecuted Lara in the Spirit Lake Tribal Court for “violence to a policeman.” Ibid. Lara pleaded guilty and, in respect to that crime, served 90 days in jail. See ibid.; Tr. of Oral Arg. 28.
The Government noted that this Court has held that an Indian tribe acts as a separate sovereign when it prosecutes its own members. United States v. Wheeler,
In the Government’s view, given this statute, the Tribe, in prosecuting Lara, had exercised its own inherent tribal authority, not delegated federal authority; hence the “dual sovereignty” doctrine applies, Heath, supra, at 88; and since the two prosecutions were brought by two different sovereigns, the second, federal, prosecution does not violate the Double Jeopardy Clause.
The Federal Magistrate Judge accepted the Government’s argument and rejected Lara’s double jeopardy claim.
Because the Eighth Circuit and Ninth Circuit have reached different conclusions about the new statute, we
II
We assume, as do the parties, that Lara’s double jeopardy claim turns on the answer to the “dual sovereignty” question. What is “the source of [the] power to punish” nonmember Indian offenders, “inherent tribal sovereignty” or delegated federal authority? Wheeler, supra, at 322 (emphasis added).
We also believe that Congress intended the former answer. The statute says that it “recognize[s] and affirm[s]” in each tribe the “inherent” tribal power (not delegated federal power) to prosecute nonmember Indians for misdemeanors. See supra, at 198; Appendix, infra (emphasis added). And the statute’s legislative history confirms that such was Congress’ intent. See, e.g., H. R. Conf. Rep. No. 102-261, pp. 3-4 (1991) (“The Committee of the Conference notes that ... this legislation is not a delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations”); accord, H. R. Rep. No. 102-61, p. 7 (1991); see also S. Rep. No. 102-168, p. 4 (1991) (“recognizing] and reaffirming] the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians”); 137 Cong. Ree. 9446 (1991) (remarks of Sen. Inouye) (the “premise [of the legislation] is that the Congress affirms the inherent jurisdiction of tribal governments over nonmember Indians” (emphasis added)); id., at 10712-10714 (remarks of Rep. Miller, House manager of the bill) (the statute “is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away” and the bill “recognizes an inherent tribal right which always existed”); id., at 10713 (remarks of Rep. Richardson, a sponsor of the amendment) (the legislation “reaffirms” tribes’ power).
First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as “plenary and exclusive.” E. g., Washington v. Confederated Bands and Tribes of Yakima Nation,
This Court has traditionally identified the Indian Commerce Clause, U. S. Const., Art. I, §8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power. E. g., Morton v. Mancari,
We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes. 25 U. S. C. § 71 (stating that tribes are not entities “with whom the United States may contract by treaty”). But the statute saved existing treaties from béing “invalidated or impaired,” ibid., and this Court has explicitly stated that the statute “in no way affected Congress’ plenary powers to legislate on problems of Indians,” Antoine v. Washington,
Moreover, “at least during the first century of America’s national existence . . . Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law.” Cohen 208 (footnotes omitted). Insofar as that is so, Congress’ legislative authority would rest in part, not upon “affirmative grants of the Constitution,” but upon the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as “necessary concomitants of nationality.” United States v. Curtiss-Wright Export Corp.,
Second, Congress, with this Court’s approval, has interpreted the Constitution’s “plenary” grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nation’s beginning Congress’ need for such legislative power would have seemed obvious. After all, the Government’s Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. See, e. g., Cohen 48. And Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored “Indian removal,” then “assimilation” and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and “termination” of recognized tribes); and it now seeks greater tribal autonomy within the framework of a “government-to-government relationship” with federal agencies. 59 Fed. Reg. 22951 (1994); see also 19 Weekly Comp, of Pres. Doc. 98 (1983) (President Reagan reaffirming the rejection of termination as a policy and announcing the goal of decreasing tribal dependence on the Federal Government); see 25 U. S. C. § 450a(b) (congressional commitment to “the development of strong and stable tribal governments”). See generally Cohen 78-202 (describing this history); Canby 13-32 (same).
Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a “powe[r] . . . capable of making treaties” to a
One can readily find examples in congressional decisions to recognize, or to terminate, the existence of individual tribes. See United States v. Holliday,
Third, Congress’ statutory goal — to modify the degree of autonomy enjoyed by a dependent sovereign that is not a State — is not an unusual legislative objective. The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous státus of other such dependent entities — sometimes making far more radical adjustments than those at issue here. See, e. g., Hawaii— Hawaii v. Mankichi,
Fourth, Lara points to no explicit language in the Constitution suggesting a limitation on Congress’ institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches. But cf. Part III, infra.
Fifth, the change at issue here is a limited one. It concerns a power similar in some respects to the power to prosecute a tribe’s own members — a power that this Court has called “inherent.” Wheeler,
Sixth, our conclusion that Congress has the power to relax the restrictions imposed by the political branches on the tribes’ inherent prosecutorial authority is consistent with our earlier cases. True, the Court held in those cases that the power to prosecute nonmembers was an aspect of the tribes’ external relations and hence part of the tribal sovereignty that was divested by treaties and by Congress. Wheeler, supra, at 326; Oliphant v. Suquamish Tribe,
To the contrary, Oliphant and Duro make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches’ own determinations. In Oliphant, the Court rested its conclusion about inherent tribal authority to prosecute tribe members in large part upon “the commonly shared presumption of Congress, the Executive Branch, and lower federal courts,” a presumption which, “[w]hile not conclusive!,] carries considerable weight.”
Similarly, in Duro, the Court drew upon a host of different sources in order to reach its conclusion that a tribe does not possess the inherent power to prosecute a nonmember. The Court referred to historic practices, the views of experts, the experience of forerunners of modern tribal courts, and the published opinions of the Solicitor of the Department of the Interior.
Thus, the Court in these cases based its descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions. Congressional legislation constituted one such important source. And that source was subject to change. Indeed Duro itself antici
We concede that Duro, like several other cases, referred only to the need to obtain a congressional statute that “delegated” power to the tribes. See id., at 686 (emphasis added); Bourland, supra, at 695, n. 15; Montana v. United States,
Wheeler, Oliphant, and Duro, then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes. And that fact makes all the difference.
III
Lara makes several additional arguments. First, he points out that the Indian Civil Rights Act of 1968, 82 Stat. 77, lacks certain constitutional protections for criminal defendants, in particular the right of an indigent defendant to counsel. See 25 U. S. C. § 1302. And he argues that the Due Process Clause forbids Congress to permit a tribe to prosecute a nonmember Indian citizen of the United States
Lara’s due process argument, however, suffers from a critical structural defect. To explain the defect, we contrast this argument with Lara’s “lack of constitutional power” argument discussed in Part II, supra. Insofar as that “constitutional power” argument might help Lara win his double jeopardy claim, it must proceed in four steps:
Step One: Congress does not possess the constitutional power to enact a statute that modifies tribal power by “recognizing] and affirming]” the tribes’ “inherent” authority to prosecute nonmember Indians. 25 U. S. C. § 1301(2).
Step Two: Consequently, the word “inherent” in the statute’s phrase “inherent power” is void.
Step Three: The word “inherent” is severable from the rest of the statute (as are related words). The remainder of the statute is valid without those words, but it then delegates federal power to the tribe to conduct the prosecution.
Step Four: Consequently, the Tribe’s prosecution of Lara was federal. The current, second, prosecution is also federal. Hence Lara wins his Double Jeopardy Clause claim, the subject of the present proceeding.
Although the Eighth Circuit accepted this argument,
Lara’s due process argument, however, is significantly different. That argument (if valid) would show that any prosecution of a nonmember Indian under the statute is invalid; so Lara’s tribal prosecution would be invalid, too. Showing Lara’s tribal prosecution was invalid, however, does not show that the source of that tribal prosecution was federal power (showing that a state prosecution violated the Due Process Clause does not make that prosecution federal).
Second, Lara argues that Congress’ use of the words “all Indians,” in the statutory phrase “inherent power ... to exercise criminal jurisdiction over all Indians,” violates the Equal Protection Clause. He says that insofar as the words include nonmember Indians within the statute’s scope (while excluding all non-Indians) the statute is race based and without justification. Like the due process argument, however, this equal protection argument is simply beside the point, therefore we do not address it. At best for Lara, the argument (if valid) would show, not that Lara’s first conviction was federal, but that it was constitutionally defective. And that showing cannot help Lara win his double jeopardy claim.
Third, Lara points out that the Duro Court found the absence of certain constitutional safeguards, for example, the guarantee of an indigent’s right to counsel, as an important reason for concluding that tribes lacked the “inherent power” to try a “group of citizens” (namely, nonmember Indians) who were not “include[d]” in those “political bodies.”
For these reasons, we hold, with the reservations set forth in Part III, supra, that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians. We hold that Congress exercised that authority in writing this statute. That being so, the Spirit Lake Tribe’s prosecution of Lara did not amount to an exercise of federal power, and the Tribe acted in its capacity of a separate sovereign. Consequently, the Double Jeopardy Clause does not prohibit the Federal Government from proceeding with the present prosecution for a discrete federal offense. Heath,
The contrary judgment of the Eighth Circuit is
Reversed.
APPENDIX TO OPINION OF THE COURT
Title 25 U. S. C. § 1301(2), as amended by Act of Oct. 28, 1991, 105 Stat. 646, provides:
“ ‘[Pjowers of self-government’ means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.”
Concurrence Opinion
concurring.
While I join the Court’s opinion without reservation, the additional writing by my colleagues prompts this comment. The inherent sovereignty of the Indian tribes has a historical basis that merits special mention. They governed territory on this continent long before Columbus arrived. In contrast, most of the States were never actually independent sovereigns, and those that were enjoyed that independent
Concurrence Opinion
concurring in the judgment.
The amendment to the Indian Civil Rights Act of 1968 (ICRA) enacted after the Court’s decision in Duro v. Reina,
The Court’s analysis goes beyond this narrower rationale and culminates in a surprising holding: “For these reasons, we hold . . . that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians.” Ante, at 210. The Court’s holding is on a point of major significance to our understanding and interpretation of the Constitution; and, in my respectful view, it is most doubtful.
Were we called upon to decide whether Congress has this power, it would be a difficult question. Our decision in United States v. Wheeler,
Lara, after all, is a citizen of the United States. To hold that Congress can subject him, within our domestic borders, to a sovereignty outside the basic structure of the Constitution is a serious step. The Constitution is based on a theory of original, and continuing, consent of the governed. Their consent depends on the understanding that the Constitution has established the federal structure, which grants the citizen the protection of two governments, the Nation and the State. Each sovereign must respect the proper sphere of the other, for the citizen has rights and duties as to both. See U S. Term Limits, Inc. v. Thornton,
In addition to trying to evade the important structural question by relying on the verbal formula of relaxation, the Court also tries to bolster its position by noting that due process and equal protection claims are still reserved. Ante, at 210. That is true, but it ignores the elementary principle that the constitutional structure was in place before the Fifth and Fourteenth Amendments were adopted. To demean the constitutional structure and the consent upon which it rests by implying they are wholly dependent for their vindication on the Due Process and Equal Protection
The present case, however, does not require us to address these difficult questions of constitutional dimension. Congress made it clear that its intent was to recognize and affirm tribal authority to try Indian nonmembers as inherent in tribal status. The proper occasion to test the legitimacy of the Tribe’s authority, that is, whether Congress had the power to do what it sought to do, was in the first, tribal proceeding. There, however, Lara made no objection to the Tribe’s authority to try him. In the second, federal proceeding, because the express rationale for the Tribe’s authority to try Lara — whether legitimate or not — was inherent sovereignty, not delegated federal power, there can be no double jeopardy violation. Cf. Grafton v. United States,
Concurrence Opinion
concurring in the judgment.
As this case should make clear, the time has come to reexamine the premises and logic of our tribal sovereignty cases. It seems to me that much of the confusion reflected
I write separately principally because the Court fails to confront these tensions, a result that flows from the Court’s inadequate constitutional analysis. I cannot agree with the Court, for instance, that the Constitution grants to Congress plenary power to calibrate the “metes and bounds of tribal sovereignty.” Ante, at 202; see also ante, at 210 (holding that “the Constitution authorizes Congress” to regulate tribal sovereignty). Unlike the Court, ante, at 200-201, I cannot locate such congressional authority in the Treaty Clause, U. S. Const., Art. II, § 2, cl. 2, or the Indian Commerce Clause, Art. I, § 8, cl. 3. Additionally, I would ascribe much more significance to legislation such as the Act of Mar. 3, 1871, Rev. Stat. §2079,16 Stat. 566, codified at 25 U. S. C. § 71, that purports to terminate the practice of dealing with Indian tribes by treaty. The making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States. Yet, if I accept that Congress does have this authority, I believe that the result in Wheeler is questionable. In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.
I
In response to the Court’s decision in Duro v. Reina,
But even if the statute were less clear, I would not interpret it as a delegation of federal power. The power to bring federal prosecutions, which is part of the putative delegated power, is manifestly and quintessentially executive power. Morrison v. Olson,
It does not appear that the President has any control over tribal officials, let alone a substantial measure of the appointment and removal power. Cf. Brief for National Congress of American Indians as Amicus Curiae 27-29. Thus, at least until we are prepared to recognize absolutely independent agencies entirely outside of the Executive Branch with the power to bind the Executive Branch (for a tribal prosecution would then bar a subsequent federal prosecution), the tribes cannot be analogized to administrative agencies, as the dissent suggests, post, at 227 (opinion of Souter, J.). That is, reading the “Duro fix” as a delegation of federal power (without also divining some adequate method of Presidential control) would create grave constitutional difficulties. Cf. INS v. St. Cyr,
II
In Wheeler,
Although Wheeler seems to be a sensible example of federal common lawmaking, I am not convinced that it was correctly decided. To be sure, it makes sense to conceptualize
But I do not see how this is consistent with the apparently “undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government.”
Further, federal policy itself could be thought to be inconsistent with this residual-sovereignty theory. In 1871, Congress enacted a statute that purported to prohibit entering into treaties with the “Indian nation[s] or tribe[s].” 16 Stat. 566, codified at 25 U. S» C. § 71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2, and to recognize foreign governments, Art. II, §3; see, e. g., United States v. Pink,
To be sure, this does not quite suffice to demonstrate that the tribes had lost their sovereignty. After all, States retain sovereignty despite the fact that Congress can regulate States qua States in certain limited circumstances. See, e. g., Katzenbach v. Morgan,
The tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it. As Chief Justice Marshall explained:
“[T]he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else....
“[Y]et it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations.” Cherokee Nation v. Georgia,5 Pet. 1 , 16-17 (1831).
Chief Justice Marshall further described the tribes as “independent political communities, retaining their original natural rights,” and specifically noted that the tribes possessed the power to “mak[e] treaties.” Worcester v. Georgia,
Heath also instructs, relying on Wheeler, that the separate-sovereign inquiry “turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” Heath, supra, at 88. But Wheeler makes clear that the tribes and the Federal Government do draw their authority to punish from distinct sources and that they are separate sovereigns. Otherwise, the subsequent federal prosecution in Wheeler would have violated the Double Jeopardy Clause.
In Duro v. Reina,
Indeed, the Court in Duro relied primarily on Oliphant v. Suquamish Tribe,
I acknowledge that our cases have distinguished between “tribal power [that] is necessary to protect tribal self-government or to control internal relations” and tribal power as it relates to the external world. Montana v. United States,
As noted, in response to Duro, Congress amended ICRA. Specifically, Congress “recognized and affirmed” the existence of “inherent power ... to exercise criminal jurisdiction over all Indians.” 25 U. S. C. § 1301(2). President Bush signed this legislation into law. See 27 Weekly Comp, of Pres. Doc. 1573-1574 (1991). Further, as this litigation demonstrates, it is the position of the Executive Branch that the tribes possess inherent authority to prosecute nonmember Indians.
In my view, these authoritative pronouncements of the political branches make clear that the exercise of this aspect of sovereignty is not inconsistent with federal policy and therefore with the position of the tribes. Thus, while Duro may have been a correct federal-common-law decision at the time, the political branches have subsequently made clear that the
Ill
I believe that we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty.
The dissent admits that “[treaties and statutes delineating the tribal-federal relationship are properly viewed as an independent elaboration by the political branches of the fine details of the tribes’ dependent position, which strips the tribes of any power to exercise criminal jurisdiction over those outside their own memberships.” Post, at 228. To the extent that this is a description of the federal-common-law process, I agree. But I do not understand how the dissent can then conclude that “the jurisdictional implications [arising from this analysis are] constitutional in nature.” Ibid. By this I understand the dissent to mean that Congress cannot alter the result, though the dissent never quite says so.
The analysis obviously has constitutional implications. It is, for example, dispositive of respondent’s double jeopardy claim. But it does not follow that this Court’s federal-common-law decisions limiting tribes’ authority to exercise their inherent sovereignty somehow become enshrined as constitutional holdings that the political branches cannot
Similarly unavailing is the dissent’s observation that when we perform the separate-sovereign analysis “we are undertaking a constitutional analysis based on legal categories of constitutional dimension.” Post, at 229. The dissent concludes from this that our double jeopardy analysis in this context “must itself have had constitutional status.” Ibid. This ipse dixit does not transform our common-law decisions into constitutional holdings. Cf. Dickerson v. United States,
I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty. The Court cites the Indian Commerce Clause and the treaty power. Ante, at 200. I cannot agree that the Indian Commerce Clause “ *provide[s] Congress with plenary power to legislate in the field of Indian affairs.’ ” Ibid. (quoting Cotton Petroleum Corp. v. New Mexico,
In the end, the Court resorts to citing past examples of congressional assertions of this or similar power. Ante, at 202-203. At times, such history might suffice. Cf. Dames & Moore v. Regan,
Second, much of the practice that the Court cites does not actually help its argument. The “Insular Cases,” which include the Hawaii and Puerto Rico examples, ante, at 203-204, involved Territories of the United States, over which Congress has plenary power to govern and regulate. See Reid v. Covert,
The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to ask the logically antecedent question whether Congress (as opposed to the President) has this power. A cogent answer would serve as the foundation for the analysis of the sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense. But until we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases.
Notes
I am sympathetic to Justice Kennedy’s position that we need not resolve the question presented. Ante, at 211 (opinion concurring in judgment). If Congress has power to restore tribal authority to prosecute nonmember Indians, respondent’s tribal prosecution was the legitimate exercise of a separate sovereign. As such, under the dual sovereignty doctrine, it does not bar his subsequent federal prosecution. On the other hand, if the amendment to ICRA had no effect (the only other possibility), jeopardy did not attach in the tribal prosecution. See, e. g., Serfass v. United States,
Additionally, the very enactment of ICRA through normal legislation conflicts with the notion that tribes possess inherent sovereignty. Title 25 U. S. C. § 1302, for example, requires tribes “in exercising powers of self-government” to accord individuals most of the protections in the Bill of Rights. I doubt whether Congress could, through ordinary legislation, require States (let alone foreign nations) to use grand juries.
1 acknowledge that Wheeler focused specifically on the tribes’ authority to try their own members. See
Justice Souter believes that I have overlooked Oliphant’s reliance on sources other than “treaties, statutes, and the views of the Executive Branch.” Post, at 230, n. 2. Justice Souter quotes the following passage from Oliphant: “[E]ven ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress. . . . Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers inconsistent with their status.’’
Dissenting Opinion
dissenting.
It is as true today as it was in 1886 that the relationship of Indian tribes to the National Government is “an anomalous one and of a complex character.” United States v. Kagama,
Of particular relevance today, we held in Duro that because tribes have lost their inherent criminal jurisdiction over nonmember Indians, any subsequent exercise of such jurisdiction “could only have come to the Tribe” (if at all) “by delegation from Congress.” Id., at 686. Three years later, in South Dakota v. Bourland,
What should also be clear, and what I would hold today, is that our previous understanding of the jurisdictional implications of dependent sovereignty was constitutional in nature, certainly so far as its significance under the Double Jeopardy
That means that there are only two ways that a tribe’s inherent sovereignty could be restored so as to alter application of the dual sovereignty rule: either Congress could grant the same independence to the tribes that it did to the Philippines, see ante, at 204, or this Court could repudiate its existing doctrine of dependent sovereignty. The first alternative has obviously not been attempted, and I see no reason for us to venture down a path toward the second. To begin with, the theory we followed before today has the virtue of fitting the facts: no one could possibly deny that the tribes are sub
Bourland was a civil case about the regulation of hunting and fishing by non-Indians. Its applicability in the criminal context is presumably a fortiori.
Justice Thomas’s disagreement with me turns ultimately on his readiness to discard prior case law in this field and, indeed, on his rejection in this very case of the concept of dependent sovereignty. He notes, for example, ante, at 220 (opinion concurring in judgment), that the Court in Heath v. Alabama,
Justice Thomas suggests that this delegation may violate the separation of powers. Ante, at 215-217. But we are not resolving the question whether Lara could be “prosecuted pursuant to ... delegated power,”