According to Harring’s interpretation of the Crow Dog ruling, the U.S. “had no criminal jurisdiction over Indian tribes in ‘Indian Country’” as an aspect of their sovereignty. However, since this decision in 1883 Congress has put numerous limitations on tribes’ rights to legislate and prosecute independently within reservations. For example, the Indian Civil Rights Act of 1968 places limits on the penalties that can be assigned within tribal courts. The majority of the act essentially imposes the principles of the Bill of Rights on Indian tribes, but tacked on to the text of the Eighth Amendment (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted) is the limitation that and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both. This seems to imply that tribal courts are incapable of defending the civil rights of their own people, and that the tribal courts are just sort of play-versions for petty issues that aren’t a big enough deal for white people to intervene on.
I was a little suprised that a tribe is not allowed to prosecute non-Indians for tribal crimes committed within a reservation, but is allowed to prosecute Indians whether or not they are members of the tribe. I looked a bit at the Oliphant v. Wheeler (1978) and Duro v. Reina (1990) and United States v. Lara (2004) cases to try to get an idea of the court’s distinction. Initially after Duro, tribes were only allowed to prosecute members for crimes committed on the reservation. The court sited a sovereign nation’s inherent right to protect “their own unique customs and social order.” This court ruling basically protected neither, as the majority of tribes were using legal systems strongly and sometimes forcibly based on U.S. law, and the ability to maintain social order in an area requires jurisdiction over all people who are acting within it. The court also based much of it’s ruling on historical research, claiming it found insufficient record of tribes holding criminal jurisdiction over non-member Indians. Throughout this week’s reading, I noticed the word inherent being used interestingly. In most writing, “inherent” means something natural, characteristic, and irremovable, how we regard our certain “inalienable rights” in U.S. law. In much of the reading when the word “inherent” popped up to describe a tribe’s sovereignty or a particular power, it was describing something preexisting without being granted by U.S. courts, but not necessarily essential or permanent. Powers falling within a tribe’s “inherent sovereignty” are not guaranteed to the tribe, but are assumed without explicit granting until the U.S. government acts to specifically limit or remove one.
This set of cases, particularly Duro followed by U.S. v. Lara, also made me realize that I still don’t fully understand the practical application of plenary power--in Duro in 1990, the court ruled that tribes did not have criminal jurisdiction over non-members, a decision that was extremely troubling to many tribes. One year later, Congress amended ICRA to recognize this power, and in 2004 the court ruled that this Congress did have the authority to modify restrictions on the powers of Indian nations. Although the outcome was important to Indian tribes, the U.S. v. Lara decision had more to do with Congressional power. If plenary power is to be exercised by Congress with regard to Indian affairs, it is confusing to me that this had to be reapproved by another branch of the government. I was also confused by how the Supreme Court decided differently on a tribal right, based on the amendment of a law by Congress. Normally, it is the Supreme Court’s decision to rule on constitutionality, including sometimes striking down laws as unconstitutional, so this situation seems backward to that. On the other hand, I couldn’t find any significant mention of the Constitution in the Duro decision that was essentially cancelled by the ICRA amendment.