Lead Opinion
delivered the opinion of the Court.
| ^This сase 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 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 аnd, in respect to that crime, served 90 days in jail. See ibid.; Tr. of Oral Arg. 28.
|137After Lara’s tribal conviction, the Federal Government charged Lara in the Federal District Court for the District of North Dakota with the federal crime of assaulting a federal officer.
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,
The Fedеral 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 | ^granted cer-tiorari. Cf. United States v. Enas,
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,
We also believe that Congress intended the former answer. The statute says that it “recognize[s] and affirmfs]” in each tribe the “inherent” tribal power (not delegated federal power) to prosecute nonmember Indians for misdеmeanors. See supra, at
lanpThus the statute seeks to adjust the tribes’ status. It relaxes the restrictions, recognized in Duro, that the political branches had imposed on the tribes’ exercise of inherent prosecutorial power. The question before us is whether the Constitution authorizes Congress to do so. Several considerations lead us to the conclusion that Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember Indians as the statute seeks to do.
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, Ait. II, § 2, cl. 2, as sources of that power. E.g., Morton v. Mancari,
laoiThe treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, “to make Treaties.” U.S. Const., Art. II, § 2, cl. 2. But,
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 being “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 consequencеs). 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
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 | 2ft3“power with whom the United States may [not] contract by treaty.” Compare Worcester, supra, at 559, with 25 U.S.C. § 71.
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 status of other such dependent entities— sometimes making far more radical adjustments thаn 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
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 relаx 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,
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 Oli-phant, 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, “[wjhile 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 lеgislation constituted one such important source. And that source was subject to change. Indeed Duro itself an-ticjmted2w change by inviting interested parties to “address the problem [to] Congress.”
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,
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.
Ill
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
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 sev-erable 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. Henсe 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). |awBut without that “federal power” showing, Lara cannot win his double jeopardy claim here. Hence, we need not, and we shall not, consider the merits of Lara’s due process claim. Other defendants in tribal proceedings remain free to raise that claim should they wish to do so. See 25 U.S.C. § 1303 (vesting district courts with jurisdiction over habeas writs from tribal courts).
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 “includefd]” in those “political bodies.”
I210IV
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:
“ jP’jowers 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 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 1639. 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,
Lip,The Court resolves, or perhaps avoids, the basic question of the power of the Government to yield authority inside the domestic borders over citizens to a third sovereign by using the euphemistic formulation that in amending the ICRA Congress merely relaxed restrictions on the tribes. See ante, at 1631, 1633, 1634, 1636, and 1637. There is no language in the statute, Or the legislative history, that justifies this unusual phrase, cf. 25 U.S.C.
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 1639. 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 them vindication on the Due Process and Equal Protection |214Clauses is a further, unreasoned holding of serious import. The political freedom guaranteed to citizens by the federal structure is a liberty both distinct from and every bit as important as those freedoms guaranteed by the Bill of Rights. Cf. Clinton v. City of New York,
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 reexaminе the premises and logic of our tribal sovereignty cases. It seems to me that much of the confusion
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 1635; see also ante, at 1639 (holding that “the Constitution authorizes Congress” to regulate tribal sovereignty). Unlike the Court, ante, at 1633,1 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, Rеv. 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 eases 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 оf 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
II
In Wheeler, 435 U.S, at 322-323,
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 |.¿18the tribes as sovereigns that, due to their unique situation, cannot exercise the full measure of their sovereign powers. Wheeler, at times, seems to analyze the problem in just this way. See, e.g., id,., at 323-326,
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 Justicе 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 , 16-17,8 L.Ed. 25 (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,
|.^Nevertheless, if I accept Wheeler, I also must accept that the tribes do retain inherent sovereignty (at least to enforce their criminal laws against their own members) and the logical consequences of this fact. In Heath v. Alabama,
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,
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-govern
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, thе political branches have subsequently made clear that the Diatribes’ exercise of criminal jurisdiction against nonmember Indians is consistent with federal policy. The potential conflicts on which Duro must have been premised, according to the political branches, do not exist. See also ante, at 1636. I therefore agree that, as the case comes to us, the tribe acted as a separate sovereign when it prosecuted respondent. Accordingly, the Double Jeopardy Clause does not bar the subsequent federal prosecution.
Ill
I believe that we must examine more critically our tribal sovereignty case law.
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 1650. 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 | palter. When the political branches demonstrate that a particular exercise of the tribes’ sovereign power is in fact consistent with federal policy, the underpinnings of a federal-common-law decision disabling the exercise of that tribal power disappear. Although I do not necessarily agree that the tribes have any residual inherent sovereignty or that Congress is the constitutionally appropriate branch to make adjustments to sovereignty, see Part II, supra, it is important to recognize the logical implications of these assumptions.
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 1650. 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 1633. 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,
_J_226Next, the Court acknowledges that “[t]he treaty power does not literally au
In the end, the Court resorts to citing past examples of congressional assertions of this or similar power. Ante, at 1634-1635. 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 1635, involved Territories of the United States, over which Cоngress 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 1640 (оpinion 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.
. I 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 1651, 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
with whom Justice SCALIA joins, dissenting.
It is as true today as it was in 1886 that the relationship of Indian tribes tо the National Government is “an anomalous one and of a complex character.” United States v. Kagama,
Of particular relevance today, we held in D-uro 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,
|.. Jt is of no moment that we have given ostensibly alternating explanations for this conclusion. We have sometimes indicated that the tribes’ lack of inherent criminal jurisdiction over nonmembers is a necessary legal consequence of the basic fact that the tribes are dependent on the Federal Government. Wheeler, supra, at 326,
What should also be dear, 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 laaCIause is concerned. Our discussions of Indian sovereignty have naturally focused on the scope of tribes’ inherent legislative or judicial jurisdiction. E.g., Nevada v. Hicks,
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 1635, 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 subjordi-nate^o to the National Government. Furthermore, while this is not the place to reexamine the concept of dual sovereignty itself, there is certainly no reason to adopt a canon of broad construction calling for maximum application of the doctrine. Finally, and perhaps most importantly, principles of stare decisis are particularly compelling in the law of tribal jurisdiction, an area peculiarly susceptible to confusion. And confusion, I fear, will be the legacy of
|.,:;11 would therefore stand by our explanations in Oliphant and Duro and hold that Congress cannot reinvest tribal courts with inherent criminal jurisdiction over nonmember Indians. It is not that I fail to appreciate Congress’s express wish that the jurisdiction conveyed by statute be treated as inherent, but Congress cannot control the interpretation of the statute in a way that is at odds with the constitutional consequences of the tribes’ continuing dependent status. What may be given controlling effect, however, is the principal object of the 1990 amendments to the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq., which was to close “the jurisdictional void” created by Duro by recognizing (and empowering) the tribal court as “the best forum to handle misdemeanor cases over non-member Indians,” H.R.Rep. No. 102-261, p. 6 (1991), U.S.Code Cong. & Admin.News 1991, pp. 370, 376. I would therefore honor the drafters’ substantive intent by reading the Act as a delegation of federal prosecutorial power that eliminates the jurisdictional gap.
. 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 1644 (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 1642-1643. But we are not resolving the question whether Lara could be "prosecuted pursuant to ... delegated power,"
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 lau status for only a few years. Given the fact that Congress can authorize the States to exercise—as their oimi—inherent powers that the Constitution has otherwise placed off limits, see, e.g., Prudential Ins. Co. v. Benjamin,