UNITED STATES v. LARA
No. 03-107
SUPREME COURT OF THE UNITED STATES
Argued January 21, 2004—Decided April 19, 2004
541 U.S. 193
Alexander F. Reichert, by appointment of the Court, 540 U. S. 980, argued the cause for respondent. With him on the brief were Ronald A. Reichert and James E. Smith.*
JUSTICE BREYER delivered the opinion of the Court.
This case concerns a congressional statute “recogniz[ing] and affirm[ing]” 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
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. 324 F. 3d 635, 636 (CA8 2003) (en banc). 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, 435 U. S. 313, 318, 322-323 (1978) (a tribe‘s “sovereign power to punish tribal offenders,” while subject to congressional “defeasance,” remains among those “inherent powers of a limited sovereignty which has never been extinguished” (emphasis added and deleted)). The Government recognized, of course, that Lara is not one of the Spirit Lake Tribe‘s own members; it also recognized that, in Duro v. Reina, supra, this Court had held that a tribe no longer possessed inherent or sovereign authority to prosecute a “nonmember Indian.” Id., at 682. But it pointed out that, soon after this Court decided Duro, Congress enacted new legislation specifically
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. 324 F. 3d, at 636-637. An Eighth Circuit panel agreed with the Magistrate Judge. 294 F. 3d 1004 (2002). But the en banc Court of Appeals, by a vote of 7 to 4, reached a different conclusion. 324 F. 3d 635 (2003). It held the Tribal Court, in prosecuting Lara, was exercising a federal prosecutorial power; hence the “dual sovereignty” doctrine does not apply; and the Double Jeopardy Clause bars the second prosecution. Id., at 640. The four dissenting judges, agreeing with the Federal Government, concluded that the Tribal Court had exercised inherent tribal power in prosecuting Lara; hence the “dual sovereignty” doctrine applies and allows the second, federal, prosecution. Id., at 641 (opinion of M. Arnold, J.).
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) (“recogniz[ing] and reaffirm[ing] the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians“); 137 Cong. Rec. 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, 439 U. S. 463, 470-471 (1979); Negonsott v. Samuels, 507 U. S. 99, 103 (1993); see Wheeler, 435 U. S., at 323; see also W. Canby, American Indian Law 2 (3d ed. 1998) (hereinafter Canby) (“[T]he independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes“).
This Court has traditionally identified the Indian Commerce Clause,
We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes.
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., 299 U. S. 304, 315-322 (1936); Henkin, supra, at 14-22, 63-72; cf. 2 J. Continental Cong. 174-175 (1775) (W. Ford ed. 1905) (creating departments of Indian affairs, appointing Indian commissioners, and noting the great importance of “se-
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
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, 3 Wall. 407, 419 (1866) (“If by [the political branches] those Indians are recognized as a tribe, this court must do the same“); Menominee Tribe v. United States, 391 U. S. 404 (1968) (examining the rights of Menominee Indians following the termination of their Tribe). Indeed, Congress has restored previously extinguished tribal status—by re-recognizing a Tribe whose tribal existence it previously had terminated.
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 status of other such dependent entities—sometimes making far more radical adjustments than those at issue here. See, e. g., Hawaii—Hawaii v. Mankichi, 190 U. S. 197, 209-211 (1903) (describing annexation of Hawaii by joint resolution of Congress and the maintenance of a “Republic of Hawaii” until formal incorpo-
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, 435 U. S., at 322-323. In large part it concerns a tribe‘s authority to control events that occur upon the tribe‘s own land. See United States v. Mazurie, 419 U. S. 544, 557 (1975) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory” (emphasis added)); see also, e. g., S. Rep. No. 102-168, at 21 (remarks of P. Hugen). And the tribes’ possession of this additional criminal jurisdiction is consistent with our traditional understanding of the tribes’ status as “domestic dependent nations.” Chero-
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, 435 U. S. 191, 209-210 (1978); Duro, 495 U. S., at 686. But these holdings reflect the Court‘s view of the tribes’ retained sovereign status as of the time the Court made them. They did not set forth constitutional limits that prohibit Congress from changing the relevant legal circumstances, i. e., from taking actions that modify or adjust the tribes’ status.
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.” 435 U. S., at 206. The Court pointed out that
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. 495 U. S., at 689-692. See also, e. g., Nevada v. Hicks, 533 U. S. 353, 361, n. 4 (2001) (“Our holding in Worcester must be considered in light of ... the 1828 treaty” (alterations and internal quotation marks omitted)); South Dakota v. Bourland, 508 U. S. 679, 695 (1993) (“Having concluded that Congress clearly abrogated the Tribe‘s pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribes to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty” (emphasis added)); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 855-856 (1985) (“[T]he existence and extent of a tribal court‘s jurisdiction will require [inter alia] a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions“); United States v. Kagama, 118 U. S. 375, 382-383 (1886) (characterizing Ex parte Crow Dog, 109 U. S. 556, 570 (1883), as resting on extant treaties and statutes and recognizing congressional overruling of Crow Dog).
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, 450 U. S. 544, 564 (1981); Mazurie, 419 U. S., at 556-557. But in so stating, Duro (like the other cases) simply did not consider whether a statute, like the present one, could constitutionally achieve the same end by removing restrictions on the tribes’ inherent authority. Consequently we do not read any of these cases as holding that the Constitution forbids Congress to change “judicially made” federal Indian law through this kind of legislation. Oliphant, supra, at 206; cf. County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 233-237 (1985) (recognizing the “federal common law” component of Indian rights, which “common law” federal courts develop as “a ‘necessary expedient’ when Congress has not ‘spoken to a particular issue’ ” (quoting Milwaukee v. Illinois, 451 U. S. 304, 313-315 (1981))); id., at 313 (“[F]ederal common law is ‘subject to the paramount authority of Congress’ ” (quoting New Jersey v. New York, 283 U. S. 336, 348 (1931))).
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
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 “recogniz[ing] and affirm[ing]” the tribes’ “inherent” authority to prosecute nonmember Indians.
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, 324 F. 3d, at 640, we reject Step One of the argument, Part II, supra. That rejection, without more, invalidates the 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.” 495 U. S., at 693-694. In fact, Duro says the following: “We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them.” Id., at 693. But this argument simply repeats the due process and equal protection arguments rejected above in a somewhat different form. Since precisely the same problem would exist were we to treat the congressional statute as delegating federal power, this argument helps Lara no more than the others.
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, 474 U. S., at 88.
The contrary judgment of the Eighth Circuit is
Reversed.
APPENDIX TO OPINION OF THE COURT
Title
” ‘[P]owers 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.”
JUSTICE STEVENS, 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
JUSTICE KENNEDY, 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, 495 U. S. 676 (1990), demonstrates Congress’ clear intention to restore to the tribes an inherent sovereign power to prosecute nonmember Indians. Congress was careful to rely on the theory of inherent sovereignty, and not on a delegation. JUSTICE SOUTER‘s position that it was a delegation nonetheless, post, at 231 (dissenting opinion), is by no means without support, but I would take Congress at its word. Under that view, the first prosecution of Lara was not a delegated federal prosecution, and his double jeopardy argument must fail. That is all we need say to resolve this case.
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, 435 U. S. 313 (1978), which the Court cites today but discusses very little, is replete with references to the inherent authority of the tribe over its own members. As I read that case, it is the historic possession of inherent power over “the relations among members of a
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, 514 U. S. 779, 838-839 (1995) (KENNEDY, J., concurring). Here, contrary to this design, the National Government seeks to subject a citizen to the criminal jurisdiction of a third entity to be tried for conduct occurring wholly within the territorial borders of the Nation and one of the States. This is unprecedented. There is a historical exception for Indian tribes, but only to the limited extent that a member of a tribe consents to be subjected to the jurisdiction of his own tribe. See Duro, supra, at 693. The majority today reaches beyond that limited exception.
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
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, 206 U. S. 333, 345 (1907) (“[B]efore a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged“). For that reason, I concur in the judgment.
JUSTICE THOMAS, 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
I
In response to the Court‘s decision in Duro v. Reina, 495 U. S. 676 (1990) (holding that the tribes lack inherent author
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, 487 U. S. 654, 691 (1988); id., at 705 (SCALIA, J., dissenting). Congress cannot transfer federal executive power to individuals who are beyond “meaningful Presidential control.” Printz v. United States, 521 U. S. 898, 922-923 (1997). And this means that, at a minimum, the President must have some measure of “the power to appoint and remove” those exercising that power. Id., at 922; see also Morrison, supra, at 706-715 (SCALIA, J., dissenting).
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, 533 U. S. 289, 299-300 (2001); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 173 (2001). Accordingly, the Court has only two options: Either the “Duro fix” changed the result in Duro or it did nothing at all.1
II
In Wheeler, 435 U. S., at 322-323, the Court explained that, prior to colonization, “the tribes were self-governing sovereign political communities.” The Court acknowledged, however, that, after “[t]heir incorporation within the territory of the United States,” the tribes could exercise their inherent sovereignty only as consistent with federal policy embodied in treaties, statutes, and Executive Orders. Id., at 323; see also id., at 327-328. Examining these sources for potential conflict, the Court concluded that the tribes retained the ability to exercise their inherent sovereignty to punish their own members. Id., at 323-330.
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.” 435 U. S., at 319. The sovereign is, by definition, the entity “in which independent and supreme authority is vested.” Black‘s Law Dictionary 1395 (6th ed. 1990). It is quite arguably the essence of sovereignty not to exist merely at the whim of an external 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
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, 384 U. S. 641 (1966); cf. New York v. United States, 505 U. S. 144, 160-161 (1992); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). But the States (unlike the tribes) are part of a constitutional framework that allocates sovereignty between the State and Federal Governments and specifically grants Congress authority to legislate with respect to them, see
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, 6 Pet. 515, 559 (1832). Although the tribes never fit comfortably within the category of foreign nations, the 1871 Act tends to show that the political branches no longer considered the tribes to be anything like foreign nations. And it is at least arguable that the United States no longer considered the tribes to be sovereigns.2 Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases.
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
In Duro v. Reina, 495 U. S. 676 (1990), the Court held that the Indian tribes could no longer enforce their criminal laws against nonmember Indians. Despite the obvious tension, Duro and Wheeler are not necessarily inconsistent. Although Wheeler and Heath, taken together, necessarily imply that the tribes retain inherent sovereignty to try anyone who violates their criminal laws, Wheeler and Duro make
Indeed, the Court in Duro relied primarily on Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), which held that tribes could not enforce their criminal laws against non-Indians. In reaching that conclusion, the Court in Oliphant carefully examined the views of Congress and the Executive Branch. Id., at 197-206 (discussing treaties, statutes, and views of the Executive Branch); id., at 199 (discussing Attorney General opinions, including 2 Op. Atty. Gen. 693 (1834) (concluding that tribal exercise of criminal jurisdiction over non-Indians was inconsistent with various treaties)). Duro at least rehearsed the same analysis. 495 U. S., at 688-692. Thus, although Duro is sprinkled with references to various constitutional concerns, see, e. g., id., at 693-694, Duro, Oliphant, and Wheeler are classic federal-common-law decisions. See also County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 233-236 (1985).
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, 450 U. S. 544, 564 (1981); see also Nevada v. Hicks, 533 U. S. 353, 358-359 (2001); South Dakota v. Bourland, 508 U. S. 679, 695, n. 15 (1993); Duro, supra, at 685-686; Wheeler, 435 U. S., at 322-325. This distinction makes perfect sense as a matter of federal common law: Purely “internal” matters are by definition unlikely to implicate any federal policy. But, critically, our cases have never drawn this line as a constitutional matter. That is why we have analyzed extant federal law (embodied in treaties, statutes, and Executive Orders) before concluding that particular tribal assertions of power were incompatible with the position of the tribes.
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.”
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
III
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 “[t]reaties 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, 530 U. S. 428, 459-461 (2000) (SCALIA, J., dissenting).
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, 490 U. S. 163, 192 (1989)). At one time, the implausibility of this assertion at least troubled the Court, see, e. g., United States v. Kagama, 118 U. S. 375, 378-379 (1886) (considering such a construction of the Indian Commerce Clause to be “very strained“), and I would be willing to revisit the question. Cf., e. g., United States v. Morrison, 529 U. S. 598 (2000); United States v. Lopez, 514 U. S. 549 (1995); id., at 584-593 (THOMAS, J., concurring).
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, 453 U. S. 654, 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610-611 (1952) (Frankfurter, J., concurring). But it does not suffice here for at least two reasons. First, federal Indian law is at odds with itself. I find it difficult to reconcile the result in Wheeler with Congress’ 1871 prospective prohibition on the making of treaties with the Indian tribes. The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling “sovereignty.” See Part II, supra. In short, the history points in both directions.
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, 354 U. S. 1, 13 (1957);
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.
JUSTICE SOUTER, with whom JUSTICE SCALIA joins, 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, 118 U. S. 375, 381. Questions of tribal jurisdiction, whether legislative or judicial, do not get much help from the general proposition that tribes are “domestic dependent nations,” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), or “wards of the [American] nation,” Kagama, supra, at 383. Our cases deciding specific questions, however, demonstrate that the tribes do retain jurisdiction necessary to protect tribal self-government or control internal tribal relations,
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, 508 U. S. 679 (1993), we reiterated this understanding that any such “delegation” would not be a restoration of prior inherent sovereignty; we specifically explained that “tribal sovereignty over nonmembers cannot survive without express congressional delegation, and is therefore not inherent.” Id., at 695, n. 15 (emphasis in original; citation and internal quotation marks omitted).1 Our precedent, then, is that any tribal exercise of criminal jurisdiction over nonmembers necessarily rests on a “delegation” of federal power and is not akin to a State‘s congressionally permitted exercise of some authority that would otherwise be barred by the dormant Commerce Clause, see New York v. United States, 505 U. S. 144, 171 (1992). It is more like the delegation of lawmaking power to an administrative agency, whose jurisdiction would not even exist absent congressional authorization.
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