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.