On Monday [June 13, 2016], in United States v. Bryant, a unanimous Supreme Court determined that a federal statute could employ tribal court convictions that complied with the Indian Civil Rights Act (ICRA), but not the Sixth Amendment, as predicate offenses for a federal crime. Commentators have reasonably debated the merits of this outcome as a policy matter (e.g., here and here), but as a legal question, the conclusion seems correct. Though the Constitution does not apply to tribes of its own force, Congress has opted to extend nearly all the provisions of the Bill of Rights to tribes through ICRA; the right to appointed counsel for indigent defendants is one of the only omissions. The fact that these convictions are now being employed in a federal criminal proceeding does not transform them into federal convictions. On the contrary, declining to recognize constitutionally and statutorily valid tribal convictions would implicitly overrule the long-standing and oft-repeated precedent that the Bill of Rights does not directly apply to tribes, as well as Congress’s deliberate decision in ICRA not to apply the indigent right to counsel in this instance. Congress could require tribes to provide counsel at tribal expense—as it has already done, through the Tribal Law and Order Act, for any tribal court proceeding resulting in a punishment longer than a year. Given that the core of this dispute is over policy rather than legal interpretation, Congress, not the Supreme Court, is the best forum to resolve the question.
Besides the holding, two aspects of the decision are particularly noteworthy. One is that Justice Ginsburg, writing for the majority, discusses at length the national crisis of sexual violence directed against Native women, and notes how the jurisdictional complexity of Indian country has exacerbated this problem. As Matthew Fletcher observes, Ginsburg does not fully acknowledge the Court’s own role in creating this crisis, particularly its federal common law rule that tribes lack criminal jurisdiction over non-Indians, who have reportedly been the most frequent perpetrators of sexual violence against Native women. Nonetheless, the Supreme Court’s recognition of the real harms to tribes at stake here is important, especially when the Court’s solicitude in tribal jurisdictional disputes has so often been reserved for prospective non-Indian defendants who might be brought before tribal court systems caricatured as alien and hostile.
The other noteworthy aspect is Justice Thomas’s concurrence, continuing a line of concurrences in recent Indian law cases in which he has called for the field’s fundamental reconceptualization. As in Lara and Adoptive Couple, Justice Thomas challenges here the constitutional source of the federal government’s plenary power over Indian affairs. I have dealt with Justice Thomas’s contentions on this score at length elsewhere; as a historical matter, I find them largely unconvincing.
But Justice Thomas’s concurrence also breaks new ground and so is worth considering carefully. He suggests that perhaps the tribes, or at least some of them, are no longer sovereign at all, a position Thomas also hinted at in his concurrence in last week’s decision in Puerto Rico v. Sanchez Valle. It bears noting that this argument seems to be in some tension with Thomas’s argument about federal plenary power: If the federal government lacks the power to enact criminal law for Indian tribes, then one might reasonably wonder where it derives the power to entirely extinguish Native sovereignty.
Thomas’s discussion here is brief, but contains hints of how the full argument might run. He begins with the incontrovertible and appealing point that tribes are diverse with very distinct histories. (How much this ought to matter legally for sovereignty is a separate question. As the dissent pointed out in Sanchez Valle, the same is undoubtedly true with respect to states, and yet we regard states as possessing an “identical quantum of sovereignty,” in Thomas’s words). Thomas then seems to suggest that some tribes have lost their sovereignty either through treaties or through “assimilation and conquest.” The treaty point is thin: the article Thomas cites in support merely discusses the fact that a handful of Indian treaties acknowledged federal plenary power, which, under established precedent, provides little evidence about the scope of retained tribal powers under the treaty. Indeed, the very existence of a treaty seems to presuppose a sovereign entity capable of treaty-making.
The assimilation and conquest suggestions are troubling. Justice Thomas does not acknowledge that there was a moment in the late nineteenth century when the Supreme Court did, in fact, arrogate to itself the power to determine whether a given group of people were “Indian” enough under federal law. Unsurprisingly, to make this determination the Court relied on extremely crude racial and anthropological stereotypes about the culture, intelligence, religion, and “civilization” of Indian peoples. Fortunately, the Court stepped back from this role and decided to defer to the political branches on the question. Today, federal recognition of tribes through the Bureau of Indian Affairs is a long and imperfect process, but it does rely on experts sifting through hundreds of thousands of pages of evidence and testimony to address some of the questions Thomas seems to be asking—whether a given tribe persisted and persists as a “distinct community,” for instance, with its own autonomous government. Thomas seemingly wants to invalidate these results and return to a time when Justices, based on a smattering of evidence, would offer a definitive ruling as to whether a given community is no longer “Indian” enough—as assessed by the Justices—to satisfy federal law.
Conquest would involve an even more strained argument. It would require that, when nineteenth-century federal officials—not distinguished by their respect for tribal autonomy—confined tribes to reservations but nonetheless recognized their continued self-governance, these officials didn’t fully understand what they had done. Unbeknownst to them, these officials had actually destroyed the tribe’s sovereignty, notwithstanding the subsequent century and a half in which the tribe governed itself with the federal government’s support and blessing. Enforcing this “conquest” in the present would thus require that the Supreme Court intervene to enact the implications of centuries-old policies that contemporaries were evidently too blind to understand themselves.
In short, it’s hard to see that Justice Thomas’s invitation for greater judicial involvement in assessing the continued existence of tribal sovereignty will bring either the clarity or the intellectual integrity he seems to crave. On the contrary, there is a compelling argument that it is precisely the Supreme Court’s frequent interventions that resulted in the current confusions in federal Indian law. The majority’s inclination to leave the parsing of these issues to Congress—as unfettered as possible by the messy past into which Justice Thomas seeks to bear us ceaselessly back—is probably the wiser course.
Gregory Ablavsky is an assistant professor of law at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.