OPEN UNIVERSITY JUNE 14, 2007
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by Jacob T. Levy
Apropos of Jeffrey
Rosen's new piece on Justice Kennedy's penchant for freelance
moral abstraction, I thought I'd note an instance Rosen didn't
mention. (I'm drawing on my paper "Three
Perversities of Indian Law.")
Under traditional American jurisprudence, American Indian tribal
governments have self-governing authority that predates and is not
dependent on the American constitutional order. That authority is
subject to such limits as Congress may impose (and it has plenary
authority to impose any limits it wishes), as well as certain limits
said to be inherent in the tribes' modern status as "domestic
dependent nations" (primarily, prohibitions on their carrying on
independent foreign policies or on alienating their land to any buyer
except the federal government).
In recent years Congress acted to restore tribal jurisdiction over
crimes committed on reservations by members of other Indian tribes.
And Congress described what it was doing that way: as a restoration of
something that had inhered in the tribes. (This was in response to a
Supreme Court judgment that the tribes had lost such jurisdiction.)
Now, under the plenary power doctrine, Congress may do essentially
what it wishes with regard to tribal governments; and subject only to
core constitutional protections it may legislate as it likes over
Indians in Indian Country. Congress could even abolish tribes, and
has sometimes done so.
But this act of congressional restoration drew the following response
from Kennedy in U.S. v. Lara:
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. [...] 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.
Kennedy sought to impose the moral simplicity of consent and social
contract theory on the complex history and legal reality of Indian
law--and he found the tribes wanting, for failing to meet those
abstractions.
James Madison knew better.
'What'--they [the Indians] may
say--'have we to do with the Federal Constitution, or the relations
formed by it between the Union and its members? We were no parties to
the compact and cannot be affected by it.' And as to a charter of the
King of England,--is it not as much a mockery to them, as the bull of
a Pope dividing a world of discovery between the Spaniards and
Portugese, was held to be by the nations who disowned and disdained
his authority?
But Kennedy thinks that the fact that the tribes were no parties to
the compact means "so much the worse for the tribes"-- because their
authority predates the Constitution and is therefore not reducible to
the abstractions of consent or contract theory.
22 comments
but it seems that Kennedy is recoginising the legitimiacy of an Indian social contract, but is holding is as inferior to that of the Constitution's because they didn't do.... I got it, register at Bethelem What would -who? Rosseau, Locke, Jefferson, think of that?
- raycon
June 14, 2007 at 8:59pm
I am having trouble following your reasoning here. You point to recent accommodations Congress made out of respect for what you call "the complex history and legal reality of Indian law", namely, restoring tribal jurisdiction over crimes committed on reservations by members of other tribes. You criticize Kennedy for, I assume, wanting to invalidate that legislative accommodation on the ground, putting it broadly, that social contract and consent theory as manifest in his view of the Constitution necessitates holding unlawful the subjection of an American citizen to the criminal jurisdiction of a "third entity" other than the federal or state government. So what is to be criticized here is that Kennedy is in effect saying, on abstract theories of consent and social contract, that Indian tribal law, history, traditions, customs and ways of life antedating the Constitution mean nothing, and, on his view, are deemed to have merged into state and federal authority. This is the abstraction you criticize against the concrete and complex realities of Indian history and law. So far, so good--I think. But, then, I find your last paragraph hard to put together with the foregoing. The line of reasoning you attribute to Kennedy there--"because their authority predates the Constitution and is therefore not reducible to the abstraction of consent or contract theory."--seems precisely antithetical to the reasoning you have just previously criticized. What am I not understanding?
- basman
June 14, 2007 at 9:52pm
are you trying to separate consent from contract? As a non lawyer, I am just thinking that the Torys who stayed were citizens, under contract -at least as I would recgonize it as a layperson; and, if British common law got folded in, why not Native American? Again, assuming the intent of Congress was as stated, it seems reasonable.
- raycon
June 14, 2007 at 10:20pm
Not in my little note. I'm keeping them together, as did the main poster as I read him, in trying to get a coherent view of the line of reasoning in the main post. That's all.
- basman
June 14, 2007 at 10:25pm
Exactly right. I don't think you have misunderstood anything. I can't see that last paragraph as anything other than a contradiction of the "argument" he had been making up to that point. What gives, JTL?
- wmsberry
June 14, 2007 at 11:44pm
I'd start first to make sure I understand the paragraph that describes a member of one tribe being tried by members of another tribe. The implication is that unlike our federal structure, where everyone (states, national government) must (eventually) answer to a single framework (the Constitution), there is no single framework for Indian tribes. So how does one begin looking for say a consistent definition of what constitutes theft, what constitutes marriage and how a marriage is dissolved...and you can take it from there. So now (I to have too) read Kennedy's comments in US vs. Lara again. (Maybe you guys caught this, but I think commenting on Levy's post requires starting with that understanding - how one tribal member can be bound by a tribes laws that he or she doesn't belong to. It looks as simple as "well, you're in our jurisdiction..." but what does jurisdiction mean to an Indian tribe. We have our definition... See why I'm confused?)
- jet
June 15, 2007 at 10:36pm
So what is to be criticized here is that Kennedy is in effect saying, on abstract theories of consent and social contract, that Indian tribal law, history, traditions, customs and ways of life antedating the Constitution mean nothing, and, on his view, are deemed to have merged into state and federal authority.
basman, maybe I'm not reading your comments correctly, but it seems that Levy is pointing out that Kennedy is trying to apply his own moral reasoning to Lara, not making the case that Indian law has merged with federal and state law.
I read it as Kennedy that's trying to apply his own personal moral abstractions to Lara essentially implying that Indian laws and traditions are beneath "real constitutional law"; or at least Kennedy's personal moral constitutional high ground.
- jet
June 15, 2007 at 10:52pm
Finally, you have Madison's comments. Madison (humbly) acknowledges the limits of social contract. That those parties that were not part of the drawing of that contract, are not subject to it (meaning the Indians as a nation in Madison's case).
With this passage then, Levy is pointing out that Kennedy, as demigod, is subjecting anyone Kennedy sees fit to our social contract if he deems other systems beneath his (Kennedy's) own. Ouch.
- jet
June 15, 2007 at 11:03pm
"Freelance moral abstraction" What the hell does that mean?
Here, Levy takes up Rosen's fatuous nonsense about Kennedy's "moralizing," over "consent" or any other issue. At the appelate level the empirical -- the finding of fact -- gives way to the abstract, i.e. trial of soundness yields to review of validity.
An appeals decision is based properly on right, as opposed to truth, which is the function of the trial. Justice, which presumably is the concern of justices, is about the balancing of rights. And right is necessarily normative, is necessarily moralizing.
In other words, all justices moralize; in fact, all judges moralize. That's their job! Without an overarching concern for the right, a justice is no better than Rosen and Levy, pedantically deconstructing cases.
Of course, Rosen and Levy would like to replace judges with computers, which their colleagues could then become adept at hacking. After all, the function of a lawyer is to game the system in his client's and firm's behalf.
- jm_rice
June 16, 2007 at 1:33am
Maybe you are right, and I appreciate your efforts to explicate matters. I didn't, don't, think the tribal jurisdiction over a member of another tribe is the issue. But why even speculate about it? The main post is not holy writ to be talmudically agonized over by us lesser mortals. Let the main poster make his point crystal clear, if he deigns to: there is obviously some confusion over it.
- basman
June 16, 2007 at 7:34am
Sorry, I've been on the road. Jet is reading me correctly, and I'm afraid I don't understand what the puzzlement is on other people's parts. I don't know how to respond to Basman's concerns, because I don't understand the sense in which my final paragraph contradicts what came before. Sorry, not being willfully obtuse here-- I'm sure this is a case in which, because I know what I mean, I can't see what the other meaning of my words could have been. jm_rice-- well, frst of all I'm not an attorney, have no firm and no clients and no colleagues who have them, so the ad hominem is off target. Second... er, no. There's right and rights, abstraction and abstraction. Sometimes there's rather a lot of law on a subject. Sometimes there are two plausible readings of that law, and the reason to choose between them might be morally inflected. But there aren't many cases in which appeals court judges are called upon to run right to the highest level of moral abstraction. Kennedy flies higher, sooner, than is sometimes called for. The judgment of a good judge isn't mechanical, and there's not a program that can tell you what level of abstraction to get to. But judgment can be, well, judged. In my judgment, Kennedy's views about Indian law rush right to a level of abstraction that isn't called for, and that lead him to denigrate the the law and legal principles at issue. JTL
- openu
June 16, 2007 at 8:55pm
Thanks for your response. It is all still not entirely clear to me. But, no doubt, it's me, not you.
- basman
June 16, 2007 at 10:28pm
As a lay person, I have often wondered abou how one slips morality into the law. If it's easy, why does someone as smart as Posner find a need for economic utilitarianism? Why do we still hear so much about Hart? What about natural law? I would be fascinated by an article on the subject in TNR, especially considering what is going on in Washington.
- raycon
June 17, 2007 at 10:39am
The problem with the post is not with the general thrust of the argument, nor is it with the last paragraph in its entirety-- the problem is the very last clause: " . . . because their authority predates the Constitution and is therefore not reducible to the abstractions of consent or contract theory." What sense does that make in the context of the first part of the very sentence in which it appears, never mind what went before? Your syntax implies that the sense of the last clause accords with Kennedy'argument when, in fact, it accords with Madison's (and your) argument. Kennedy's argument, after all, is that Indian tribal authority is-- or ought to be-- subject to the requirements of consent or contract theory.
- wmsberry
June 17, 2007 at 9:18pm
You have more energy than I do buddy.
- basman
June 17, 2007 at 11:32pm
and temporarily separated from my wife by several thousand miles!
- wmsberry
June 18, 2007 at 12:05am
You could make a very solid case against the law in question on equal protection grounds. If I (white) go to a Seminole reservation and punch someone in a bar, I go to federal court (I presume) because tribal jurisdiction doesn't apply to non-tribe members. OK so far on social contract theory and US Constitutional grounds--tribal courts might not have full due process etc. But if a Cherokee buddy goes with me, and he punches a local Seminole, he gets tried in Seminole Court because he's an Indian? I think that's what Kennedy is getting at. He could have phrased it much more simply, that each tribe is a distinct body, that non-tribe members are not subject Constitutionally to tribal courts, that an Indian from Tribe A is therefore not subject to the courts of Tribe B anymore than a non-Indian would be.
- johnwcbragg
June 18, 2007 at 11:29am
- johnwcbragg
June 18, 2007 at 11:30am
They have no criminal jurisdiction over non-Indians, and no criminal jurisdiction over Indians who are not members of federally enrolled tribes. This is a political not a racial distinction (the test is membership in an enrolled tribe) and it is well-established that it does not trigger equal protection strict scrutiny. JTL
- openu
June 18, 2007 at 4:25pm
I am not sure I understand Levy's criticism of Kennedy's argument is Lara either. This country has been widely (and I think, correctly) criticized for waiting until the 1920's to hold non-taxed Indians to be citizens. But if Indians are citizens, they are subject, in some sense, to the constitution. To be sure, Santa Clara Pueblo held that the bill of rights does not apply to the tribes in the same way that it applies to everyone else (and does not apply even if the tribe came into existence after 1787). As it happens, I think Santa Clara was horrible law -- what difference does it make if the tribes existed prior to the constitution? So did England, France, Spain, and all the other places from which the original colonists came. So, for that matter, did Florida, Louisiana and Texas. Could Congress pass a law permitting Florida to enact a criminal law (include one which would otherwise violate the constitution) to citizens of, say, Louisiana and to Indian tribes, but to no one else? Of course not -- this would be blatantly unconstitutional. It is hard for me to see a line of reasoning which says that all American citizens have the same constitutional rights as logically flawed, even if this analysis leads to the conclusion that Congress cannot discriminate between jurisdictions on the basis of whom they can subject to their criminal laws. Imagine a situation in which a state could pass a law stating that it was illegal for a Frenchman, an Irishman, or an Italian to sell milk in Texas, but not a Mexican or a citizen of the United States. It is hard to see why the Navajo tribe (e.g.) could constitutionally pass a law making it criminal for a Commanche to sell milk on a Navajo reservation but not a white resident of, e.g., Colorado. But that is the practical effect of the doctrine that a tribe can enforce its criminal laws against (and only against) members of its own and other tribes.
- JohnEMack
June 18, 2007 at 5:21pm
Have any of you read the paper Levy linked to? If so, did that make the post clearer, or is it still unclear?
- intern
June 18, 2007 at 8:09pm
- basman
June 18, 2007 at 8:58pm