Open University

Kennedy Continued

By and

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.

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