A common law for our age of colonialism: The judicial divestiture of Indian tribal authority over nonmembers

Yale Law Journal

Volumn 109, Issue 1, 1999, Pages 1-85

  Frickey, Philip P ^a  

^a NONE

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EID: 0041943228     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797430     Document Type: Article

References (401)

1. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Boston, Little, Brown & Co. 1881).
2. OLIVER WENDELL HOLMES, JR., Learning and Science, in COLLECTED LEGAL PAPERS 138, 139 (1920).
3. 465 U.S. 463 (1984).
4. Id. at 472.
5. See City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993) (upholding tribal regulation of non-Indian liquor transactions).
6. A non-Indian resident of the Cheyenne River Reservation put it as follows: They [the tribe] have no right to tell me what to do - I'm not Indian! ... If this were Indian land, it would make sense. But we're a non-Indian town. There is no Indian land here. This is all homestead land, and the tribe was paid for it. I already pay taxes to the State of South Dakota. The tribe doesn't provide us with any services. There's no tribal law enforcement here. I can't vote in tribal elections or on anything else that happens on the reservation. What they're talking about is taxation without representation. FERGUS M. BORDEWICH, KILLING THE WHITE MAN'S INDIAN 97 (1996).
7. 508 U.S. 679 (1993).
8. Id. at 692.
9. United States v. Kagama, 118 U.S. 375, 381 (1886).
10. The Constitution mentions Indians only three times. Congress may regulate commerce "with the Indian Tribes," U.S. CONST, art. I, § 8, cl. 3, and "Indians not taxed" are not counted when apportioning the House of Representatives, id. § 2, cl. 3; id. amend. XIV, § 2.
11. See, e.g., Philip P. Frickey, Adjudication and Its Discontents: Coherence and Conciliation in Federal Indian Law, 110 HARV. L. REV. 1754 (1997).
12. A federal criminal statute defines "Indian country" as (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. 18 U.S.C. § 1151 (1994). The Supreme Court has borrowed this definition for civil cases as well. See DeCoteau v. District County Court, 420 U.S. 425, 427 n.2 (1975).
13. See South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789 (1998); Hagen v. Utah, 510 U.S. 399 (1994); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); DeCoteau, 420 U.S. 425; Mattz v. Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent, 368 U.S. 351 (1962).
14. See El Paso Natural Gas Co. v. Neztsosie, 119 S. Ct. 1430 (1999); Strate v. A-1 Contractors, 520 U.S. 438 (1997); South Dakota v. Bourland, 508 U.S. 679 (1993); Duro v. Reina, 495 U.S. 676 (1990); Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985); Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Montana v. United States, 450 U.S. 544 (1981); Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134 (1980); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); United States v. Mazurie, 419 U.S. 544 (1975); Williams v. Lee, 358 U.S. 217 (1959).
15. See Mazurie, 419 U.S. 544; infra text accompanying notes 148-162.
16. See Confederated Tribes, 447 U.S. 134; infra text accompanying notes 240-243.
17. Williams held that an action brought by a nonmember against a member to collect on a debt incurred in Indian country must be heard in tribal court. For a discussion of Williams, see infra text accompanying notes 133-147. Kerr-McGee and Merrion upheld tribal power to impose a severance tax upon a non-Indian company extracting minerals from tribal land. For discussion of Merrion, see infra text accompanying notes 244-250; for a discussion of Kerr-McGee, see infra note 248.
18. The Court reached an odd 4-2-3 split in the Brendale case, with the outcomes on the issues controlled by the two-Justice swing faction. See infra text accompanying notes 222-230. In National Farmers Union Insurance Cos. and Iowa Mutual, the Court appeared to create a presumption favoring tribal-court jurisdiction over civil cases brought by a tribal member against a nonmember on a cause of action arising in Indian country. In Strate, however, a case arising on non-Indian land, the Court deviated from that approach and understood the earlier cases as simply sometimes requiring such a nonmember defendant to exhaust tribal-court remedies before seeking federal judicial relief against the tribal-court action. See infra text accompanying notes 254-277. For a discussion of Neztsosie, the most recent decision on tribal-court jurisdiction, see infra note 277.
19. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 77-101 (1980) (arguing that the Federal Constitution assumes a process of representative government that presumptively provides adequate actual and virtual representation of citizens).
20. For an earlier recognition of these strategies, see Robert Laurence, The Dominant Society's Judicial Reluctance To Allow Tribal Civil Law To Apply to Non-Indians: Reservation Diminishment, Modern Demography and the Indian Civil Rights Act, 30 U. RICH. L REV. 781 (1996) [hereinafter Laurence, Judicial Reluctance]; and Robert Laurence, The Unseemly Nature of Reservation Diminishment by Judicial, as Opposed to Legislative, Fiat and the Ironic Role of the Indian Civil Rights Act in Limiting Both, 71 N.D.L. REV. 393 (1995).
21. For an earlier recognition of these strategies, see Robert Laurence, The Dominant Society's Judicial Reluctance To Allow Tribal Civil Law To Apply to Non-Indians: Reservation Diminishment, Modern Demography and the Indian Civil Rights Act, 30 U. RICH. L REV. 781 (1996) [hereinafter Laurence, Judicial Reluctance]; and Robert Laurence, The Unseemly Nature of Reservation Diminishment by Judicial, as Opposed to Legislative, Fiat and the Ironic Role of the Indian Civil Rights Act in Limiting Both, 71 N.D.L. REV. 393 (1995).
22. See infra text accompanying notes 48-53.
23. For earlier commentary critical of the Court in this respect, see Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 422-26, 432-39 (1993); and David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573, 1575 (1996).
24. For earlier commentary critical of the Court in this respect, see Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 422-26, 432-39 (1993); and David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573, 1575 (1996).
25. See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 MINN. L. REV. 31, 76 & n.177 (1996) (summarizing the decolonization movement in the international community).
26. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941). On Cohen's jurisprudence in general and in federal Indian law in particular, see Stephen M. Feldman, Felix S. Cohen and His Jurisprudence: Reflections on Federal Indian Law, 35 BUFF. L. REV. 479 (1986). Probably his most famous jurisprudential writing is Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935).
27. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941). On Cohen's jurisprudence in general and in federal Indian law in particular, see Stephen M. Feldman, Felix S. Cohen and His Jurisprudence: Reflections on Federal Indian Law, 35 BUFF. L. REV. 479 (1986). Probably his most famous jurisprudential writing is Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935).
28. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1941). On Cohen's jurisprudence in general and in federal Indian law in particular, see Stephen M. Feldman, Felix S. Cohen and His Jurisprudence: Reflections on Federal Indian Law, 35 BUFF. L. REV. 479 (1986). Probably his most famous jurisprudential writing is Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935).
29. COHEN, supra note 24, at 123.
30. Id.
31. Id. (footnote omitted).
32. Id.
33. Id. at 122 (emphasis omitted).
34. For modern examinations, see Frickey, supra note 22; and Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows upon the Earth" - How Long a Time Is That?, 63 CAL. L. REV. 601 (1975).
35. See COHEN, supra note 24, at 122.
36. See id.
37. See id. at 37. Taken together, these concepts require an inquiry into whether the Indians understood that they were ceding away a particular interest, rather than whether the United States understood that it was granting that interest to the tribe or whether the language of the treaty provided any seemingly objective answer to this question.
38. By this I do not mean that Cohen's treatise presented some objective, detached synthesis of easily derived principles. Because federal Indian law is notoriously incoherent, it has been especially subject to conceptual molding. As Felix Frankfurter wrote in honor of Cohen's treatise, "Only a ripe and imaginative scholar with a synthesizing faculty would have brought luminous order out of such a mish-mash." Felix Frankfurter, Foreword to Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 355, 356 (1954). Indeed, Cohen forthrightly acknowledged the normative spirit animating his work: What has made this work possible, in the final analysis, is a set of beliefs that form the intellectual equipment of a generation - a belief that our treatment of the Indian in the past is not something of which a democracy can be proud, a belief that the protection of minority rights and the substitution of reason and agreement for force and dictation represent a contribution to civilization, a belief that confusion and ignorance in fields of law are allies of despotism, a belief that it is the duty of the Government to aid oppressed groups in the understanding and appreciation of their legal rights, a belief that understanding of the law, in Indian fields as elsewhere, requires more than textual exegesis, requires appreciation of history and understanding of economic, political, social, and moral problems. COHEN, supra note 24, at xviii. Nonetheless, as Harold Ickes wrote in his foreword to the Handbook, "Whatever legal force [the Handbook] will have must be derived from the original authorities which have been assiduously gathered and patiently analyzed." Harold L. Ickes, Foreword to id. at v, vi. As the discussion in the text indicates, the basic principles that I have taken from Cohen had significant precedential grounding.
39. 21 U.S. (8 Wheat.) 543 (1823).
40. In Johnson, Marshall stated that a tribe was locked into an exclusive sovereign-to-sovereign relationship with the discovering European country, such that it could engage in treaty relations and land transactions only with the representatives of that country. See id. at 573.
41. 30 U.S. (5 Pet.) 1 (1831).
42. Marshall stated that "[s]o much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful." Id. at 16. In Cherokee Nation, Marshall wrote for only one other Justice (McLean); two other Justices (Thompson and Story) concluded in dissent that the tribe was a foreign state, and the other two Justices participating (Johnson and Baldwin) thought that it possessed no sovereignty at all. Marshall's opinion was, therefore, something of a middle ground, and it is relied upon today despite its lack of complete precedential value. See, e.g., Alaska v. Native Village of Venetie Tribal Gov't, 118 S. Ct. 948, 954 n.5 (1998); Oklahoma Tax Comm'n v. Citizens Band of Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).
43. Cherokee Nation, 30 U.S. at 17.
44. Id.
45. 31 U.S. (6 Pet.) 515 (1832).
46. See id. at 561.
47. Marshall understood the treaty transaction to be a ceding of rights by the tribe, not a granting of rights by the United States, with the key question being what the Indians thought they were giving up See id. at 552-53. He also assumed that the purpose of the treaty was to promote peace rather than to "annihilat[e] the political existence of one of the parties," and stated that the contrary conclusion could be supported only by "openly avowed" treaty language. Id. at 554. On Marshall's interpretive strategies, see Frickey, supra note 22, at 384-417.
48. Marshall wrote: The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. Worcester, 31 U.S. (6 Pet.) at 561.
49. 163 U.S. 376 (1896).
50. Id. at 382.
51. Id. at 384.
52. 187 U.S. 553 (1903).
53. Id. at 565.
54. Id.; see also United States v. Sandoval, 231 U.S. 28, 34 (1913) (holding that Congress's plenary power extends even to Indians who are citizens and who hold property in fee simple); United States v. Kagama, 118 U.S. 375, 380 (1886) (holding that Congress may criminalize even purely intratribal misconduct on the reservation).
55. See. e.g., United States v. Sioux Nation of Indians, 448 U.S. 371 (1980); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977).
56. See. e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989).
57. The most recent case striking down a federal statute involving Indian affairs, Babbitt v. Youpee, 519 U.S. 234 (1997), and three earlier cases, Hodel v. Irving, 481 U.S. 704 (1987), Choate v. Trapp, 224 U.S. 665 (1912), and Jones v. Meehan, 175 U.S. 1 (1899), involved interference with individual Indian property rights. Cf. Sioux Nation of Indians, 448 U.S. 371 (upholding an award of just compensation for the taking of the Black Hills). Seminole Tribe v. Florida, 517 U.S. 44 (1996), invalidated a statutory provision on Eleventh Amendment grounds. Muskrat v. United States, 219 U.S. 346 (1911), invalidated a statute because it called upon courts to issue advisory opinions.
58. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 591 (1823).
59. In Johnson, Marshall acknowledged several such justifications - civilizing and Christianizing the Indians, see id. at 573, and promoting economic progress by authorizing "agriculturalists, merchants and manufacturers ... to expel hunters from the territory they possess," id. at 588 - but refused to become embroiled in the controversy over whether these rationales could justify colonization, see id. at 589.
60. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 546-47 (1832) (asserting that the European discovering countries did not generally interfere with internal tribal matters and obtained Indian lands and political allegiances by purchase, not by coercion); see also id. at 554 (stating that an Indian treaty represented a sovereign-to-sovereign peace agreement, not an act "annihilating the political existence of one of the parties").
61. See, e.g., Choate, 224 U.S. at 675-76, 678.
62. Here I borrow from my earlier commentary. See Frickey, supra note 22, at 416, 428-32, 438; see also Getches, supra note 22, at 1573-74, 1581-93, 1652-55 (describing and urging the retention of "foundation principles" of federal Indian law).
63. See, e.g., KAY LEHMAN SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 314-15, 395-96, 398 (1986).
64. For my take on the limits on the supposed plenary power of Congress over Indian affairs, see Frickey, supra note 23. For a thorough overview of these issues, see Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195 (1984).
65. 21 U.S. (8 Wheat.) 543 (1823).
66. See id. at 587-89.
67. See id.
68. See id. at 593.
69. For helpful interpretations of Johnson along these lines, see Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-29; and J. Youngblood Henderson, Unraveling the Riddle of Aboriginal Title, 5 AM. INDIAN L. REV. 75, 93-96 (1977).
70. For helpful interpretations of Johnson along these lines, see Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 3, 23-29; and J. Youngblood Henderson, Unraveling the Riddle of Aboriginal Title, 5 AM. INDIAN L. REV. 75, 93-96 (1977).
71. See supra text accompanying notes 3-4.
72. Dawes General Allotment Act of 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. §§ 331-358 (1994)).
73. For an overview of the allotment process and its contemporary consequences, see Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1 (1995). My conclusions in Parts III-V, linking the Court's abandonment of undiluted principles of tribal sovereignty to the presence of non-Indians in Indian country as the result of the allotment process, are consistent with those of Royster, supra, at 70-78, and Getches, supra note 22, at 1622-26, as well as those that I articulated in an earlier article, see Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1150, 1180-81 (1990).
74. For an overview of the allotment process and its contemporary consequences, see Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1 (1995). My conclusions in Parts III-V, linking the Court's abandonment of undiluted principles of tribal sovereignty to the presence of non-Indians in Indian country as the result of the allotment process, are consistent with those of Royster, supra, at 70-78, and Getches, supra note 22, at 1622-26, as well as those that I articulated in an earlier article, see Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 CAL. L. REV. 1137, 1150, 1180-81 (1990).
75. See, e.g., FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 138 (R. Strickland et al. eds., 1982).
76. See INSTITUTE FOR GOV'T RESEARCH, BROOKINGS INST., THE PROBLEM OF INDIAN ADMINISTRATION 7, 460-62, 470-72 (Johnson Reprint Corp. 1971) (1928).
77. See Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §§ 461-479 (1994)).
78. The Court addressed this matter in County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251 (1992): Except by authorizing reacquisition of allotted lands in trust, however, Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints on the ability of Indian allottees to alienate or encumber their fee-patented lands nor impaired the rights of those non-Indians who had acquired title to over two-thirds of the Indian lands allotted . . . . Id. at 255.
79. See L. Scott Gould, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution, 28 U.C. DAVIS L. REV. 53, 137 tbl.5 (1994).
80. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 193 n.1 (1978). For a discussion of this case, see infra text accompanying notes 163-193. For a quick overview of the demographic diversity in Indian country, see Gould, supra note 73, at 129 tbl.3.
81. See Act of June 2, 1924, ch. 233, 43 Stat. 253.
82. For a brief overview, see Frickey, supra note 68, at 1138 & n.7, 1178-79 & nn.225-26. President Clinton has aggressively reaffirmed the principle of tribal sovereignty. See Consultation and Coordination with Indian Tribal Governments, Exec. Order No. 13,084, 63 Fed. Reg. 27,655 (1998); Government-to-Government Relations with Native American Tribal Governments: Memorandum for the Heads of Executive Departments and Agencies, 59 Fed. Reg. 22,951 (1994).
83. For a brief overview, see Frickey, supra note 68, at 1138 & n.7, 1178-79 & nn.225-26. President Clinton has aggressively reaffirmed the principle of tribal sovereignty. See Consultation and Coordination with Indian Tribal Governments, Exec. Order No. 13,084, 63 Fed. Reg. 27,655 (1998); Government-to-Government Relations with Native American Tribal Governments: Memorandum for the Heads of Executive Departments and Agencies, 59 Fed. Reg. 22,951 (1994).
84. Solem v. Bartlett, 465 U.S. 463, 468 (1984).
85. Id.
86. Id.
87. Id. (citing 18 U.S.C. § 1151 (1994)); see also supra note 12 (quoting this statute).
88. See supra text accompanying note 57.
89. According to Marshall: Although the Congresses that passed the surplus land Acts anticipated the imminent demise of the reservation and, in fact, passed the Acts partially to facilitate the process, we have never been willing to extrapolate from this expectation a specific congressional purpose of diminishing reservations with the passage of every surplus land Act. Solem, 465 U.S. at 468-69.
90. Id. at 470 (quoting Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 615 (1977)).
91. See Mattz v. Arnett, 412 U.S. 481 (1973); Seymour v. Superintendent, 368 U.S. 351 (1962).
92. See Kneip, 430 U.S. 584; DeCoteau v. District County Court, 420 U.S. 425 (1975). Marshall wrote a dissent in Kneip, see 430 U.S. at 615, and joined Justice Douglas's dissent in DeCoteau, see 420 U.S. at 460.
93. See Solem, 465 U.S. at 469 n.10 (discussing DeCoteau, 420 U.S. at 439-40 n.22,445).
94. See id. (discussing Seymour, 368 U.S. 351).
95. Id. at 470-71.
96. See id. at 471 (mentioning the negotiations history, legislative history, federal and state treatment of the area immediately following enactment, and demographics of the area soon after allotment).
97. See id. at 469 n.10, 471 (explaining Kneip, 430 U.S. 584). The first in a series of statutes concerning this reservation did contain "magic language," however. See Kneip, 430 U.S. at 591 n.8; cf. Hagen v. Utah, 510 U.S. 399, 427 (1994) (Blackmun, J., dissenting) (treating the Kneip case as involving magic language).
98. Solem, 465 U.S. at 471.
99. Marshall wrote that "we look to the subsequent demographic history of opened lands as one additional clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers." Id. at 471-72. If only Congress could be so prescient in other areas in which it legislates! Marshall further explained: "Resort to subsequent demographic history is, of course, an unorthodox and potentially unreliable method of statutory interpretation. However, in the area of surplus land Acts, where various factors kept Congress from focusing on the diminishment issue, . . . the technique is a necessary expedient." Id. at 472 n.13. Under the canonical approach supposedly followed in Solem, however, no expedient is needed, and the technique is irrelevant.
100. Id. at 471.
101. Id.
102. See id. at 471 n.12.
103. Id.
104. "Indian country" includes all Indian trust allotments of land and all dependent Indian communities, as well as all land within a reservation. See 18 U.S.C. § 1151 (1994), quoted supra note 12.
105. See, for example, Laurence, Judicial Reluctance, supra note 20, at 789-90; and James M. Grijalva et al., Diminishment of Indian Reservations: Legislative or Judicial Fiat?, 71 N.D. L. REV. 415 (1995), especially the comments of Frank Pommersheim in Grijalva et al., supra, at 422.
106. See, for example, Laurence, Judicial Reluctance, supra note 20, at 789-90; and James M. Grijalva et al., Diminishment of Indian Reservations: Legislative or Judicial Fiat?, 71 N.D. L. REV. 415 (1995), especially the comments of Frank Pommersheim in Grijalva et al., supra, at 422.
107. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-05 (1977) (noting that the state had long exercised jurisdiction over the disputed area, which was over 90% non-Indian); DeCoteau v. District County Court, 420 U.S. 425, 428 (1975) (stating that the disputed area contained" about 3,000 tribal members and 30,000 non-Indians").
108. See Mattz v. Arnett, 412 U.S. 481, 505 (1973); Seymour v. Superintendent, 368 U.S. 351, 356 (1962).
109. Solem, 465 U.S. at 480.
110. Id.
111. Id.
112. Id.
113. Id.
114. 510 U.S. 399 (1994).
115. See id. at 411-12.
116. See id. at 421.
117. Id. at 412.
118. Id. As Justice Blackmun argued in dissent, however, the term "public domain" is ambiguous and could easily be understood as simply making the lands in question available for non-Indian purchase and settlement, not removing them from the reservation to boot. See id. at 427-30 (Blackmun, J., dissenting).
119. See id. at 421.
120. Id. (emphasis added).
121. 118 S. Ct. 789 (1998). For a strong critique of the decision, see Judith V. Royster, Of Surplus Lands and Landfills: The Case of the Yankton Sioux, 43 S.D. L. REV. 283 (1998).
122. Yankton, 118 S. Ct. at 795 n.1.
123. See id. at 804.
124. See id.
125. In answering a question posed in my fall 1996 examination on federal Indian law that was based on this case, a number of my students predicted that the tribe would lose because of "bad facts" but had difficulty articulating a legal theory to support that outcome.
126. Yankton, 118 S. Ct. at 799 (quoting State v. Greger, 559 N.W.2d 854, 863 (S.D. 1997)).
127. See id. at 799-800.
128. Id. at 800-01 (quoting DeCoteau v. District County Court, 420 U.S. 425, 447 (1975)).
129. See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990) (documenting the rise of the "new textualism," under which statutory interpretation is determined by assessing the ordinary meaning and coherence of text).
130. United Sav Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988).
131. See Brief Amici Curiae of Standing Rock Sioux Tribe and Assiniboine and Sioux Tribes of the Fort Peck Reservation in Support of Respondent Yankton Sioux Tribe at 4-9, South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789 (1998) (No. 96-1581).
132. See, e.g., West Virginia Univ. Hosps. v. Casey, 499 U.S. 83, 100-01 (1991).
133. Yankton, 118 S. Ct. at 804 (quoting Solem v. Bartlett, 465 U.S. 463, 471 n.12 (1984)) (emphasis added).
134. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 345-62 (1990). Under the model of statutory interpretation proposed in HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1374-80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994), the judicial attribution of purpose is the primary method of ascertaining statutory meaning.
135. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 345-62 (1990). Under the model of statutory interpretation proposed in HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1374-80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994), the judicial attribution of purpose is the primary method of ascertaining statutory meaning.
136. Solem v. Bartlett, 465 U.S. 463, 472 (1984).
137. See generally WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994).
138. The effort to pass the buck is illustrated by Yankton: The allotment era has long since ended, and its guiding philosophy has been repudiated. Tribal communities struggled but endured, preserved their cultural roots, and remained, for the most part, near their historic lands. But despite the present-day understanding of a "government-to-government relationship between the United States and each Indian tribe," see, e.g., 25 U.S.C. § 3601, we must give effect to Congress's intent in passing the 1894 Act. Here, as in DeCoteau, we believe that Congress spoke clearly, and although "[s]ome might wish [it] had spoken differently . . . we cannot remake history."
139. S. Ct. at 805 (quoting DeCoteau v. District County Court, 420 U.S. 425, 449 (1975)).
140. Hagen v. Utah, 510 U.S. 399, 421 (1994).
141. See Frickey, supra note 22, at 385-417 (describing the methodology of the Marshall Court in federal Indian law cases).
142. 358 U.S. 217 (1959).
143. See Williams v. Lee, 319 P.2d 998 (Ariz. 1958).
144. CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 1 (1987).
145. For the Court's own brief overview of the precedents, see Williams, 358 U.S. at 219-20.
146. Id. at 218.
147. Id.
148. Id. at 219.
149. Id. Guido Calabresi, who clerked for Justice Black at the time, once mentioned to me that Justice Frankfurter's note to Black joining the opinion in Williams said that he was pleased to concur in this indirect reaffirmation of Brown v. Board of Education. Williams was decided only a year after Cooper v. Aaron, 358 U.S. 1 (1958), involving the resistance of state officials to school integration. See Robert A. Burt, Constitutional Law and the Teaching of the Parables, 93 YALE L.J. 455, 482 n.89 (1984) (reporting a similar conversation with Calabresi).
150. Williams, 358 U.S. at 220.
151. Id. at 223.
152. The case involved no federal question or diverse citizenship supporting federal jurisdiction.
153. Black wrote: It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. . . . The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Williams, 358 U.S. at 223 (citations omitted). Earlier Black had noted that Congress had given Arizona the ability to obtain jurisdiction for its courts over civil cases arising on Indian reservations and that the state had never exercised this option. See id. at 222-23 (citing Public Law 280, Act of Aug. 15, 1953, ch. 505, §§ 6-7, 67 Stat. 590).
154. See supra text accompanying note 73.
155. Williams, 358 U.S. at 222. At the time, such tribal courts were relatively scarce. See WILKINSON, supra note 135, at 2.
156. See Williams, 358 U.S. at 217.
157. 419 U.S. 544 (1975).
158. Federal criminal law outlaws the introduction of alcohol into Indian country, see id. at 545 (citing 18 U.S.C. § 1154), unless the transaction is in conformity with state law "and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register," id. at 547 n.4 (quoting 18 U.S.C. § 1161).
159. See United States v. Mazurie, 487 F.2d 14 (10th Cir. 1973).
160. See supra note 6 and accompanying text.
161. Mazurie, 487 F.2d at 19.
162. Id.
163. United States v. Mazurie, 419 U.S. 544, 557 (1975).
164. Id.
165. Id.
166. Id. (quoting U.S. CONST, art. I, § 8). The Court supported its conclusion that the delegation of legislative power is less troublesome when the recipient possesses independent authority over the subject matter by citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). See Mazurie, 419 U.S. at 557.
167. See Mazurie, 419 U.S. at 558 (quoting the passage from Williams found supra note 144).
168. Pub. L. No. 90-284, §§ 201-203, 82 Stat. 73, 77-78 (1968) (codified as amended at 25 U.S.C. §§ 1301-1303 (1994)).
169. See Mazurie, 419 U.S. at 558 n.12. in a context in which Congress had incorporated tribal law into federal law, the prosecutor was the United States Attorney, and the prosecution was in federal court, with all constitutional procedural protections available. See Mazurie, 419 U.S. at 545-50.
170. 435 U.S. 191 (1978). For criticism of Oliphant, see, for example, Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 MINN. L. REV. 609 (1979); and Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219.
171. 435 U.S. 191 (1978). For criticism of Oliphant, see, for example, Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 MINN. L. REV. 609 (1979); and Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219.
172. 435 U.S. 191 (1978). For criticism of Oliphant, see, for example, Russel Lawrence Barsh & James Youngblood Henderson, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 MINN. L. REV. 609 (1979); and Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219.
173. States covered by Public Law 280 have criminal jurisdiction over Indian country found within them. See 18 U.S.C. § 1162 (1994). At one point Washington had Public Law 280 jurisdiction over the Port Madison Reservation, but pursuant to a statutory procedure the state had retroceded this authority back to the federal government before these incidents occurred. See Oliphant v. Schlie, 544 F.2d 1007, 1012 (9th Cir. 1976). Absent a delegation of federal authority, such as that found in Public Law 280, state courts have criminal jurisdiction in Indian country only when both the victim and the perpetrator are non-Indian. See United States v. McBratney, 104 U.S. 621, 624 (1881).
174. See 18 U.S.C. § 1152.
175. See Oliphant, 435 U.S. at 206.
176. See id. at 201-06.
177. 25 U.S.C. § 1302 (1994).
178. Indeed, as introduced, the bill provided that its protections extended to "American Indians"; a later amendment changed this to "any person," suggesting that Congress assumed that tribes could have jurisdiction over non-Indians. See Frickey, supra note 68, at 1162-63.
179. See 18 U.S.C. § 1152.
180. See 25 U.S.C. § 1303.
181. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978) (holding that ICRA provides no implied cause of action for civil relief against a tribe in federal court).
182. See supra text accompanying notes 41-44.
183. See United States v. Kagama, 118 U.S. 375, 383-84 (1886) (lodging plenary power over Indian affairs in Congress rather than the states in part because tribes owe no allegiance to the states, receive no protection from them, and "[b]ecause of the local ill feeling, the people of the States where they are found are often their deadliest enemies").
184. At the time of Oliphant, ICRA limited tribal sanctions to six months in jail and/or a $500 fine. See Indian Civil Rights Act of 1968, Pub. L. No. 90-284, § 202(7), 82 Stat. 73, 77. A 1986 amendment allows tribes to impose a term of one year in jail and/or a fine of $5000. The current version is codified at 25 U.S.C. § 1302(7).
185. Oliphant v. Suquamish Indian Tribes, 435 U.S. 191, 208 (1978).
186. Id. (quoting the Court of Appeals below) (emphasis omitted).
187. See supra text accompanying notes 35-36, 61-65. In introducing his overview of the Marshall Court's decisions, Justice Rehnquist wrote that "[w]e have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States." Oliphant, 435 U.S. at 209 (emphasis added). Before Oliphant, one would have thought that the Marshall Court had specified all such limitations.
188. Oliphant, 435 U.S. at 210.
189. Id. at 206.
190. Justice Rehnquist admitted that this factor was "not conclusive on the issue before us." Id. In fact, the assertion lacks historical support. See Frickey, supra note 68, at 1161-63.
191. Oliphant, 435 U.S. at 210. Apparently, the Court considered ICRA insufficiently protective of non-Indians because the Act did not prevent the use of an all-Indian jury, see Oliphant, 435 U.S. at 194 n.4, or a trial "according to [the tribe's] own customs and procedure," id. at 211.
192. Id. at 209.
193. Id. 185. See id. at 193 n.1.
194. According to Deloria: The facts of the situation make the Indian argument not only moot but demonstrate that it was based on an idea of sovereignty having little relation to actual reality. . . . The doctrine of tribal sovereignty, perhaps relevant for a large reservation such as the Navajo with millions of acres of land and over 100,000 Indian residents, was expected to control the court's thinking in defiance of the actual facts. Surely, here was an instance of a doctrine run amok. When attorneys and scholars come to believe that doctrines have a greater reality than the data from which they are derived, all aspects of the judicial process suffer accordingly. Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31 ARIZ. L. REV. 203, 215 (1989).
195. See supra text accompanying notes 35-36.
196. In Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), Chief Justice Marshall stated: We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. Id. at 588.
197. See supra the opening paragraphs of Section II.B.
198. See supra text accompanying notes 61-65.
199. See supra notes 77-132 and accompanying text.
200. See supra notes 168-175 and accompanying text.
201. Perhaps these cases can be explained by asking whether the Court could attribute its result to the action of a more democratic institution. In Mazurie, Congress had mandated that tribal legislative authority reached non-Indians, making it easy to suggest that any unfairness was the work of Congress, not of the Court, and accordingly that attempts to change the outcome belonged in the legislative, not the judicial, process. Similarly, in Williams, Congress, through Public Law 280, had put in place a procedure whereby Arizona could obtain civil judicial jurisdiction over the non-Indian's cause of action, and Arizona had failed to use it. It is not easy to distinguish Williams and Oliphant on this score, however. Recall that, by virtue of Public Law 280, Washington had possessed, and then retroceded, jurisdiction over the reservation involved in Oliphant. See supra note 164. The retrocession was valid only because the Secretary of the Interior accepted it. See Oliphant v. Schlie, 544 F.2d 1007, 1012 (9th Cir. 1976). Recall as well that Congress, in the Indian Civil Rights Act, has subjected tribal courts to most Bill of Rights limitations and to federal habeas corpus review. Thus, the Court in Oliphant could have upheld tribal jurisdiction on the ground that it was deferring to congressional, executive, and state action. Congress could easily have altered that result, of course. Thus, it is not clear that deference to the federal and state political branches can support the results in both Williams and Oliphant.
202. 495 U.S. 676 (1990).
203. In Duro, the Court noted that, in addition to civil-liberties justifications, Oliphant had relied upon the perceived shared assumptions of the federal branches. See id. at 705. Considering the weakness of this argument in Oliphant, see supra text accompanying notes 180-181, it is remarkable to read that a "review of history" concerning the issue in Duro was "somewhat less illuminating than in Oliphant, but tends to support the conclusion we reach," Duro, 495 U.S. at 688-89.
204. See Duro, 495 U.S. at 685.
205. Id. at 685-86.
206. See id. at 687.
207. Id. at 688.
208. Id. at 694.
209. Id. at 692 (quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978) (alteration in original)).
210. See infra note 321 and accompanying text.
211. Duro, 495 U.S. at 693-94.
212. In Reid v. Covert, 354 U.S. 1 (1957), Justice Black's plurality opinion, joined by Chief Justice Warren and Justices Douglas and Brennan, concluded that the Constitution applied overseas to federal acts taken against American citizens. Justices Frankfurter and Harlan, concurring separately in the judgment, limited their extraterritorial constitutional inquiry to capital cases. The other two participating Justices (Clark and Burton) dissented. For an examination of the extraterritorial effect of the Constitution, see generally GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW (1996).
213. In Reid v. Covert, 354 U.S. 1 (1957), Justice Black's plurality opinion, joined by Chief Justice Warren and Justices Douglas and Brennan, concluded that the Constitution applied overseas to federal acts taken against American citizens. Justices Frankfurter and Harlan, concurring separately in the judgment, limited their extraterritorial constitutional inquiry to capital cases. The other two participating Justices (Clark and Burton) dissented. For an examination of the extraterritorial effect of the Constitution, see generally GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW (1996).
214. The Court in Duro stated: With respect to . . . internal laws and usages, the tribes are left with broad freedom not enjoyed by any other governmental authority in this country. . . . This is all the more reason to reject an extension of tribal authority over those who have not given the consent of the governed that provides a fundamental basis for power within our constitutional system. Duro, 495 U.S. at 694 (citation omitted); cf. Reid, 354 U.S. at 19-23 (plurality opinion) (finding that Article I, Section 8, of the Constitution, which empowers Congress "[t]o make Rules for the Government and Regulation of the land and naval Forces" and has been held to authorize trial of servicemembers without full Bill of Rights protections, did not apply to civilian dependents of servicemembers, because they were not in the military service).
215. Reid, 354 U.S. at 36 (plurality opinion).
216. Duro, 495 U.S. at 693. The general legal community knows little about the structure and operation of tribal courts. For a recent survey of tribal-court opinions that concludes that non-Indian criticism of tribal courts is often unfounded and grounded in ignorance, see Nell Jessup Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285 (1998). As Joseph Singer has pointed out to me, it seems odd to assume the worst about tribal judges when, in light of the plenary power doctrine, they have every incentive to perform in a manner acceptable to Congress.
217. Duro, 495 U.S. at 693. The general legal community knows little about the structure and operation of tribal courts. For a recent survey of tribal-court opinions that concludes that non-Indian criticism of tribal courts is often unfounded and grounded in ignorance, see Nell Jessup Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 AM. INDIAN L. REV. 285 (1998). As Joseph Singer has pointed out to me, it seems odd to assume the worst about tribal judges when, in light of the plenary power doctrine, they have every incentive to perform in a manner acceptable to Congress.
218. See Duro, 495 U.S. at 693.
219. See id. ("The Indian Civil Rights Act of 1968 provides some statutory guarantees of fair procedure, but these guarantees are not equivalent to their constitutional counterparts. There is, for example no right under the Act to appointed counsel for those unable to afford a lawyer."). In addition, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 194 & 194 n.4 (1978), which states that the Indian Civil Rights Act does not preclude tribes from using all-member juries in criminal cases.
220. Cf. Oliphant, 435 U.S. at 210 ("But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty.").
221. In addition, the result in Duro was inconsistent with another indicator of congressional intent, because it created a jurisdictional void in an area governed by federal statute. The Major Crimes Act, 18 U.S.C. § 1153 (1994), provides that, in Indian country, "[a]ny Indian" who commits one of the serious crimes listed in the statute is subject to federal prosecution. For less serious offenses by Indians, federal law extends into Indian country the criminal statutes governing federal enclaves, but contains an exception for "offenses committed by one Indian against the person or property of another Indian." 18 U.S.C. § 1152. Thus, these statutes provide that "nonmajor crimes" committed by one "Indian against the person or property of another Indian" fall outside federal jurisdiction. Because, in the absence of congressional authorization, the states have criminal jurisdiction in Indian country only when both the victim and perpetrator are non-Indian, see United States v. McBratney, 104 U.S. 621, 624 (1881), the inevitable conclusion is that tribal courts have exclusive jurisdiction over all "Indian/Indian" offenses that are not major crimes. Because these statutes use the term "Indian" rather than "member," their plain meaning is that tribal courts have exclusive jurisdiction over nonmajor offenses committed by all Indians, member and nonmember alike. By denying tribal courts jurisdiction over nonmembers, Duro thus seemed to create a jurisdictional void in which no sovereign could prosecute. Rather than viewing this absurd result as counseling against its holding, the Court in Duro simply suggested that the problem be fixed by reinterpretation of the statutes, by tribal consent to state jurisdiction, or by congressional legislation. See Duro, 495 U.S. at 697-98. These suggestions substitute either formless judicial revisionism or tribal capitulation for any serious grappling with the conundrum.
222. For the Court in Duro, tribal authority to regulate members free from constitutional restraint turned on their consent. See Duro, 495 U.S. at 694. This consent, however, cannot possibly rise to the level required to constitute a knowing and voluntary relinquishment of constitutional rights. After all, both members and nonmembers are American citizens.
223. See infra Section V.B.
224. 450 U.S. 544 (1981).
225. Id. at 564 (quoting United States v. Wheeler, 435 U.S. 313, 326 (1978)). The language quoted from Wheeler is dictum. Wheeler concerned whether a tribe retained inherent criminal jurisdiction over its members. The Court in Wheeler upheld tribal authority on those facts.
226. Id. 217. Id. at 564-65.
227. Id. at 565.
228. Id. at 565-66 (citations omitted).
229. See supra text accompanying note 200.
230. See Frickey, supra note 11, at 1768-77 (concluding that criminal jurisdiction cases turn on tribal membership, that tribal-court civil jurisdiction and taxation cases turn more on the traditional presumption that presence in a territory amounts to implied consent to governmental authority, and that civil regulatory cases are too incoherent to support any obvious paradigm based on consent). But see L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 COLUM. L. REV. 809 (1996) (arguing that a "consent paradigm" best explains the cases).
231. See Frickey, supra note 11, at 1768-77 (concluding that criminal jurisdiction cases turn on tribal membership, that tribal-court civil jurisdiction and taxation cases turn more on the traditional presumption that presence in a territory amounts to implied consent to governmental authority, and that civil regulatory cases are too incoherent to support any obvious paradigm based on consent). But see L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 COLUM. L. REV. 809 (1996) (arguing that a "consent paradigm" best explains the cases).
232. 492 U.S. 408 (1989). For an insightful critique, see Joseph William Singer, Sovereignty and Property, 86 Nw. U. L. REV. 1 (1991).
233. 492 U.S. 408 (1989). For an insightful critique, see Joseph William Singer, Sovereignty and Property, 86 Nw. U. L. REV. 1 (1991).
234. See Brendale, 492 U.S. at 428-30.
235. See id. at 430-31.
236. See id. at 462 (Blackmun, J., joined by Brennan & Marshall, JJ., concurring in part and dissenting in part).
237. See id. at 438-44 (Stevens, J., joined by O'Connor, J., announcing the judgment).
238. Id. at 442.
239. See id. at 444-47
240. Id. at 447.
241. See supra text accompanying notes 99-106, 112-113, 126, 131-132.
242. 508 U.S. 679 (1993).
243. See supra text accompanying notes 7-8.
244. Bourland, 508 U.S. at 692 (emphasis added).
245. See supra text accompanying note 127.
246. Thus, a purposive approach to statutory interpretation generally embraces the best contextual answer consistent with the purposes animating the statute. See HART & SACKS, supra note 127, at 1374-80.
247. See Bourland, 508 U.S. at 687.
248. See supra text accompanying notes 87-89, 111.
249. Hagen v. Utah, 510 U.S. 399, 421 (1994); see also supra text accompanying notes 112-113.
250. 240. 447 U.S. 134 (1980).
251. Id. at 152.
252. Id. at 153. The Court's explanation of why tribal taxation of nonmembers was consistent with domestic dependent status was extraordinarily cursory: Tribal powers are not implicitly divested by virtue of the tribes' dependent status. This Court has found such a divestiture in cases where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights. . . . In the present cases, we can see no overriding federal interest that would necessarily be frustrated by tribal taxation. . . . Id. at 153-54 (citations omitted).
253. Recall that this "Montana exception" stated that "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Montana v. United States, 450 U.S. 544, 565-66 (1981) (citing, among other cases. Confederated Tribes, 447 U.S. at 152-54).
254. 455 U.S. 130 (1982).
255. See id. at 167 (Stevens, J., dissenting).
256. In addition, because the tribe was the sole royalty holder, the oil companies could not rely upon opposition to the tax from private royalty holders. See Frickey, supra note 11, at 1171 n.193.
257. Merrion, 455 U.S. at 142.
258. Id. at 137. Justice Marshall also disposed of another argument, rooted in Oliphant, see supra text accompanying notes 180-181, by concluding that the federal governmental branches had assumed that tribes possess the power to tax nonmembers, see Merrion, 455 U.S. at 139-41. In Merrion, the Court stressed that, pursuant to a requirement in the tribal constitution, the Secretary of the Interior had approved the tribal tax before it took effect. See id. at 135-36, 141, 150 & n.16, 155. In a circumstance where no tribal or federal law required Secretarial approval of such a tax, however, the Court found the tax to be within the tribe's inherent authority. See Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985).
259. This theory may not adequately explain Duro, which involved a nonmember Indian criminal defendant living on an unallotted reservation (and thus one where Congress had not expressly extinguished the tribe's authority to exclude a large category of nonmembers). The Court in Duro, however, did leave open the question whether a tribe could obtain criminal jurisdiction by consent of the nonmember defendant "in return for [the] tribe's agreement not to exercise its power to exclude [the] offender from tribal lands." Duro v. Reina, 495 U.S. 676, 689 (1990).
260. So I have argued before. See Frickey, supra note 11, at 1767-68, 1775-80.
261. See supra note 182.
262. See supra text accompanying notes 219-221.
263. The Court did not, as it had done in Oliphant, disqualify tribal courts from hearing cases against non-Indians, perhaps because, as Williams had suggested long before, civil cases raise fewer civil liberties concerns than criminal cases. The Court did not even create, along the lines of Montana, a rule against tribal adjudicatory power subject to exceptions. Perhaps the explanation here is simply the distinction between tribal judicial jurisdiction, which was recognized over nonmember plaintiffs in Williams, and the tribal regulatory jurisdiction looked upon with disfavor in Montana. It is no secret that judges have often made more generous assumptions about the likelihood of the legitimate exercise of authority by judges than by others possessing the coercive power of government. Compare, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) (striking down an ordinance giving local officials complete discretion to issue parade permits as a prior restraint upon
264. 471 U.S. 845 (1985).
265. See id. at 852-53.
266. See supra text accompanying notes 180-181.
267. Congress had provided federal criminal jurisdiction over the offense in Oliphant, but no federal civil jurisdiction over the alleged tort in National Farmers. See National Farmers, 471 U.S. at 854. In addition, unlike the inconsistent federal executive understandings in Oliphant, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 199-201 (1978), an Attorney General opinion had concluded that tribal courts at least sometimes had jurisdiction over a civil case with a nonmember defendant, see National Farmers, 471 U.S. at 854-55.
268. National Farmers, 471 U.S. at 855-56 (footnote omitted).
269. The Court stated: We believe that examination should be conducted in the first instance in the Tribal Court itself. Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed. . . . Exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review. Id. at 856-57 (footnotes omitted).
270. 480 U.S. 9 (1987).
271. See id. at 16-17.
272. See supra text accompanying notes 219-221.
273. Iowa Mutual, 480 U.S. at 18 (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n.14 (1982)). In addition to Montana, the Court cited Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980), discussed supra text accompanying notes 240-243, which allowed tribes to impose a sales tax upon transient non-Indian purchasers of goods in Indian country, and Fisher v. District Court, 424 U.S. 382 (1976), which precluded state-court jurisdiction over adoption or custody proceedings concerning reservation-domiciled Indian children.
274. See, e.g., FRANK POMMERSHEIM, BRAID OF FEATHERS: AMERICAN INDIAN LAW AND CONTEMPORARY TRIBAL LIFE 50, 57, 81, 93, 96-98, 194 (1995).
275. 520 U.S. 438 (1997).
276. See id. at 444 n.3.
277. See A-1 Contractors v. Strate, 76 F.3d 930, 934-35 (8th Cir. 1996).
278. See id. at 936.
279. See id. at 935-36.
280. See id. at 946 (McMillian, J., dissenting).
281. See id. at 947.
282. For a thorough doctrinal analysis suggesting that the Court should have overcome its instincts to protect nonmembers and recognized tribal adjudicative authority broader than tribal regulatory power, see Laurie Reynolds, "Jurisdiction" in Federal Indian Law: Confusion, Contradiction, and Supreme Court Precedent, 27 N.M. L. REV. 359 (1997).
283. See Strate, 520 U.S. at 445.
284. 274. Id. at 453.
285. See id. 276. See id. at 454-55.
286. Strate also surely leaves open the question whether a tribal court may exercise jurisdiction over a civil case involving a member plaintiff and a nonmember defendant. See id. at 441 (narrowly defining the question in the case as one concerning tribal-court jurisdiction over a civil suit arising out of an auto accident on a state highway between two nonmembers). But see Wilson v. Marchington, 127 F.3d 805, 813-14 (9th Cir. 1997), cert. denied, 118 S. Ct. 1516 (1998) (holding that a tribal court lacked jurisdiction over a case brought by a member against a nonmember). In its most recent decision, El Paso Natural Gas Co. v. Neztsosie, 119 S. Ct. 1430 (1999), the Court continued its trend of depriving a tribal court of civil jurisdiction, but this time in a much narrower setting than that in Strate. The case involved claims of injury resulting from uranium mining operations. As the Court explained, in the Price-Anderson Act, 42 U.S.C. § 2014 (1994), Congress expressed a clear preference that federal district courts resolve certain liability claims related to the operations of the nuclear industry. Although Congress never expressly preempted tribal-court jurisdiction over such claims, the federal policy favoring a federal forum is much clearer than that involving diversity jurisdiction and routine tort cases applied by analogy in Strate. Neztsosie also contains language reading Strate quite narrowly: [Petitioners argue] that the Tribal Courts somehow lacked jurisdiction over Price-Anderson claims because under [Strate] a tribal court has jurisdiction over a nonmember only where the tribe has regulatory jurisdiction with respect to the matter at issue, and Congress has completely occupied the field of nuclear regulation. But Strate dealt with claims against nonmembers arising on state highways, and "express[ed] no view on the governing law or proper forum when an accident occurs on a tribal road within a reservation." By contrast, the events in question here occurred on tribal lands. Neztsosie, 119 S. Ct. at 1436 n.4 (citations omitted).
287. See Wilkinson & Volkman, supra note 30, at 617-20.
288. See Getches, supra note 22, at 1620-22.
289. See Frickey, supra note 22, at 418-26.
290. See id. at 437-39.
291. For a recent proposal, see Getches, supra note 22, at 1654-55.
292. For an attempt to make this case, see Frickey, supra note 22, at 406-40.
293. See, e.g., Bryan v. Itasca County, 426 U.S. 373 (1976); see also Frickey, supra note 22, at 429-32 (discussing Bryan).
294. "Just stay on the good roads; you've got nothing to worry about. Stay on the state highways." United States Supreme Court Official Transcript, Strate v. A-1 Contractors, 520 U.S. 438 (1997) (No. 95-1872), available in 1997 WL 10398, at *43; see also Phillip Allen White, Comment, The Tribal Exhaustion Doctrine: "Just Stay on the Good Roads, and You've Got Nothing to Worry About," 22 AM. INDIAN L. REV. 65, 65 n.* (1997) (attributing the comment to Justice Scalia).
295. "Just stay on the good roads; you've got nothing to worry about. Stay on the state highways." United States Supreme Court Official Transcript, Strate v. A-1 Contractors, 520 U.S. 438 (1997) (No. 95-1872), available in 1997 WL 10398, at *43; see also Phillip Allen White, Comment, The Tribal Exhaustion Doctrine: "Just Stay on the Good Roads, and You've Got Nothing to Worry About," 22 AM. INDIAN L. REV. 65, 65 n.* (1997) (attributing the comment to Justice Scalia).
296. See supra text accompanying notes 92-106, 112-113, 116-118, 126.
297. In the two principal inherent-sovereignty cases that still constitute victories for tribal sovereignty, Williams and Merrion, the reservations in question had never been allotted. Oliphant, the first modern case concluding that tribal sovereignty was inconsistent with domestic dependent nation status, involved a reservation that had been essentially destroyed by allotment. Once Oliphant decided that tribes lack inherent sovereignty to exercise criminal jurisdiction over nonIndians, however, it became irresistible in Duro to extend that rationale to protect nonmember Indians as well, even though the reservation in Duro had never been allotted. Perhaps in light of this fact, the Court in Duro did note the tribe's general power to exclude nonmembers, see Duro v. Reina, 495 U.S. 676, 696 (1990), which does not apply to nonmember fee owners on allotted reservations, see Brendale v. Confederated Tribes of Yakima Indian Nation, 492 U.S. 408, 422 (1989) (opinion of White, J.); id. at 436 (opinion of Stevens, J.). The Duro Court did not reach the question whether a tribe could condition permission to enter the reservation upon agreement to be subject to tribal authority. See Duro, 495 U.S. at 689; supra note 249.
298. See generally ESKRIDGE, supra note 129.
299. See id. at 9-105.
300. See id. at 107-204.
301. See supra note 130 and accompanying text.
302. And I have, more or less, in Eskridge & Frickey, supra note 127, as well as in WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (2d ed. 1995).
303. And I have, more or less, in Eskridge & Frickey, supra note 127, as well as in WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY (2d ed. 1995).
304. ESKRIDGE, supra note 129, at 201.
305. See id. at 199-204.
306. These factors track the elements of a diagram for pragmatic statutory interpretation that Eskridge and I developed in Eskridge & Frickey, supra note 127, at 345-62.
307. A journalist recently made the point this way: The Lakotas were the victims of nineteenth-century social engineering that decimated their reservation. But the adventurous emigrants from Oslo and Odessa were also the victims of a terrible historical prank, the trick of the disappearing and now magically reappearing reservation. Their grandchildren are today discovering themselves in a strange new political world that was not of their making, hungry for protection and obliged to learn the new and difficult language of tribal power. It is a rhetoric that, reasonably enough, demands for tribes a degree of self-government that is taken for granted by other Americans; it also asks non-Indians to live under tribal taxation, police, and courts of sometimes dubious reliability. BORDEWICH, supra note 6, at 328. Contrast the views of a legal scholar: No treaty promises were made to non-Indian settlers in the Indian country. At most, the federal government invited non-Indians into the Indian country with the understanding that eventually the Indians would assimilate and the tribes would disappear. That expectation may have created a form of psychological reliance, but it should have created no legal reliance interests. . . . But if the federal government made no promises to non-Indian settlers that could have ripened into vested rights, the government most assuredly did make those promises to the tribes [in treaties that were subsequently unilaterally abrogated through allotment]. Royster, supra note 68, at 71-72. Royster found no logic in the argument "that the government should now keep its 'promise' to the settlers, but not its promise to the tribes." Id. at 72. For the reasons briefly sketched infra note 369, I would side with Royster, despite having more sympathy for the non-Indian position than she articulates, rather than with Bordewich, who may be guilty of overvaluing "melting pot" notions of social homogeneity. See BORDEWICH, supra note 6, at 329 (implausibly suggesting that retaining tribal sovereignty amounts to "legitimizing segregation for Indians[, which] will set a precedent for its potential imposition upon black, Asian, and Hispanic Americans"). Whichever way one comes out, however, it is striking that the Court has never engaged in anything approaching this sort of candid acknowledgment of the important factors.
308. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 21 (1997). Lest I be accused of Scalia-bashing in the discussion that follows in the text, allow me to note my concurrence in Eskridge's critical but respectful review of this book. See William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509 (1998). Justice Scalia's willingness to engage in candid theoretical and practical debate about statutory interpretation has been the single greatest blast of fresh air in a field that had long lain dormant to considered intellectual reevaluation. See Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. _ (forthcoming 1999) (assessing Justice Scalia's impact upon statutory interpretation).
309. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 21 (1997). Lest I be accused of Scalia-bashing in the discussion that follows in the text, allow me to note my concurrence in Eskridge's critical but respectful review of this book. See William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509 (1998). Justice Scalia's willingness to engage in candid theoretical and practical debate about statutory interpretation has been the single greatest blast of fresh air in a field that had long lain dormant to considered intellectual reevaluation. See Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. _ (forthcoming 1999) (assessing Justice Scalia's impact upon statutory interpretation).
310. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 21 (1997). Lest I be accused of Scalia-bashing in the discussion that follows in the text, allow me to note my concurrence in Eskridge's critical but respectful review of this book. See William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 MICH. L. REV. 1509 (1998). Justice Scalia's willingness to engage in candid theoretical and practical debate about statutory interpretation has been the single greatest blast of fresh air in a field that had long lain dormant to considered intellectual reevaluation. See Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. _ (forthcoming 1999) (assessing Justice Scalia's impact upon statutory interpretation).
311. SCALIA, supra note 297, at 21 (discussing the theory of judicial statutory revision in light of common-law evolution proposed in GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982)).
312. 299. Id. at 22.
313. Id. 301. Memorandum from Justice Antonin Scalia to Justice William J. Brennan, Jr. Regarding Duro v. Reina (Apr. 4, 1990) (available in The Papers of Thurgood Marshall, Library of Congress) (emphasis added). David Getches uncovered this memorandum and discussed it in Getches, supra note 22, at 1575. I thank him for a copy of it.
314. Memorandum from Justice Scalia to Justice Brennan, supra note 301.
315. See, e.g., United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting) ("[T]his most illiberal Court . . . has embarked on a course of inscribing one after another of the current preferences of the society . . . into our Basic Law.").
316. See, e.g., Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring in part and in the judgment). For remarkable examples, see Lexecon, Inc. v. Milberg, Weiss, Bershad, Hynes & Lerach, 523 U.S. 26, 28 n.† (1998) (noting that Justice Scalia refused to join the portion of the opinion stating why the other Justices rejected a legislative-history argument); and Associates Commercial Corp. v. Rash, 520 U.S. 953, 955 n.* (1997) (same).
317. Cf. Frickey, supra note 22, at 383 (noting reported remarks from Justices about how federal Indian law disputes are "peewee" cases, even "chickenshit cases").
318. See Daniel Farber, Missing the "Play of Intelligence," 36 WM. & MARY L. REV. 147 (1994). Farber, in turn, relied upon the advice of our late colleague, Irving Younger, concerning effective legal writing: You must see through and around your subject, measuring it by more than one measuring stick, turning it over, testing it, arriving at a just and clear-headed assessment of its position in the hierarchy of things. The word that best expresses this requisite distance is "detachment," understood as a certain amusement with the enterprise upon which you are engaged, a sense of humor about yourself and your works. If a lawyer has it, the lawyer's writing will unfailingly communicate the play of intelligence ("play" here being as important as "intelligence"). Id. at 166 (quoting Irving Younger, Let's Get Serious, A.B.A. J., May 1, 1987, at 110).
319. See supra note 210.
320. See supra note 182.
321. See Duro v. Reina, 495 U.S. 676, 692-96 (1990).
322. See supra text accompanying notes 203-213.
323. By this I mean that the Court is implementing constitutional values not by imposing the Constitution directly upon the tribes, but instead by treating those values as premises for federal common-lawmaking. The Court has used a similar technique in implementing the values of separation of powers and federalism indirectly, through clear-statement rules of statutory interpretation that cabin congressional intrusions upon these values, rather than by invalidating federal legislation as unconstitutional. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992).
324. See supra note 182 and text accompanying notes 208-209.
325. See supra text accompanying notes 200-201.
326. On the incorporation doctrine, see, for example, Jerold H. Israel, Selective Incorporation Revisited, 71 GEO. L.J. 253 (1982).
327. 347 U.S. 497 (1954).
328. Palko v. Connecticut, 302 U.S. 319, 325 (1937). The standard has evolved such that today the question is whether the right is "fundamental to the American scheme of justice." Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
329. See Downes v. Bidwell, 182 U.S. 244 (1901). For a helpful overview, see NEUMAN, supra note 204, at 4-5, 85-89. Although Downes and the other Insular Cases have never been overruled, their precedential value was undercut by Reid v. Covert, the case cited in Duro, see supra text accompanying notes 203-213, as suggesting limits even upon congressional authorization of tribal criminal jurisdiction over nonmembers. On the effect of Reid on the Insular Cases, see NEUMAN, supra note 204, at 5, 89-94, 101, 106.
330. See supra text accompanying notes 45-47, 208.
331. See Duro v. Reina, 495 U.S. 676, 693 (1990) ("The retained sovereignty of the tribe is but a recognition of certain additional authority the tribes maintain over Indians who consent to be tribal members.").
332. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978) ("By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress."); id. at 212 (stating that various policy considerations arguably supporting tribal criminal jurisdiction over non-Indians are "for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians").
333. In 1990, Congress authorized tribal courts to exercise criminal jurisdiction over nonmember Indians for a one-year period. It did so by amending the Indian Civil Rights Act, 25 U.S.C. § 1301(2), changing the definition of "powers of self-government" to mean: "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." Act of Nov. 5, 1990, Pub. L. No. 101-511, § 8077(b), 104 Stat. 1856, 1892. This approach was made permanent in 1991. See Act of Oct. 28, 1991, Pub. L. No. 102-137, 105 Stat. 646.
334. Despite Dura's reference to Reid v. Covert, see supra text accompanying notes 203-213, I am unaware of any court that has struck down the "Duro fix" as beyond congressional power. Cf. Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 946 n.7 (9th Cir. 1998) (noting this concern). For contrasting commentaries on the constitutionality and appropriateness of the Duro fix, see Gould, supra note 73; Nell Jessup Newton, Permanent Legislation to Correct Duro v. Reina, 17 AM. INDIAN L. REV. 109 (1992); and Alex Tallchief Skibine, Duro v. Reina and the Legislation that Overturned It: A Power Play of Constitutional Dimensions, 66 S. CAL. L. REV. 767 (1993). A recent Eighth Circuit panel decision seriously misunderstood the source of the tribal power exercised when a nonmember Indian is prosecuted. In United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), district court judgment reinstated by equally divided en banc court per curiam, 165 F.3d 1209 (8th Cir. 1999), petition for cert. filed, U.S. Apr. 29, 1999 (No. 98-9211), the district court had held that double jeopardy did not bar the federal prosecution of a nonmember Indian for a crime on a reservation for which he had already been tribally prosecuted. A majority of the Eighth Circuit panel disagreed. The panel reasoned that tribal criminal jurisdiction over nonmember Indians pursuant to the Duro fix resulted from delegated federal authority, not inherent tribal sovereignty, and thus the defendant had already been prosecuted once by the same sovereign that sought to subject him to criminal penalty again. See id. at 824. The panel recognized that in the Duro fix Congress intended to recognize inherent tribal authority rather than to delegate new federal authority. See id. at 823. The panel concluded, however, that it was the judicial, not the congressional, role to establish the baseline of tribal sovereignty, and that any congressional modification of the baseline enhancing tribal authority amounted to a delegation of federal power. See id. at 824. In dissent, Judge Morris Arnold understood that Oliphant and Duro were merely federal common-law decisions subject to congressional revision. See id. at 825 (M. Arnold, J., dissenting). Judge Arnold was clearly correct, as a brief example should demonstrate. Suppose that the federal courts conclude that a state regulation of semitrailer truck length unduly burdens interstate commerce and declare the state law invalid under the dormant Commerce Clause doctrine - which, although a constitutionally rooted rule, is actually best understood as an aspect of federal common law. See infra text accompanying notes 326-327. Then suppose that Congress enacts legislation authorizing states to regulate the length of such trucks. Surely when the state resumes truck-length regulation, it is exercising its inherent police power - which always existed, even though for a time it was preempted by federal common law - rather than some peculiar delegated federal authority. The effect of the congressional authorizing legislation was to destroy the preemptive barrier of federal common law - thereby allowing the always-existing-but-once-preempted local police power to spring back free from judicial interference - not to delegate special federal power to the state. This is the way that we understand federal preemption of the local police power. It should also be the way that we evaluate the Duro fix. Before European discovery of this continent, tribes had the local police power. The federal common-law decision in Duro preempted that police power over nonmember Indians; the Duro fix simply lifted the federal common-law preemption from the tribe's police power. The prosecution of nonmember Indians is now, and always has been, an exercise of inherent tribal authority - it was just that, for a time, this authority was preempted by federal common law. Accordingly, when the tribe first prosecutes a nonmember Indian and then the federal government prosecutes that defendant on the same set of facts, there is no double jeopardy problem because the prosecutions are accomplished by different sovereigns. Cf. United States v. Wheeler, 435 U.S. 313 (1978) (holding that tribal prosecution of a member is pursuant to inherent tribal authority, so that later prosecution by the United States for the same offense does not offend double jeopardy).
335. Despite Dura's reference to Reid v. Covert, see supra text accompanying notes 203-213, I am unaware of any court that has struck down the "Duro fix" as beyond congressional power. Cf. Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 946 n.7 (9th Cir. 1998) (noting this concern). For contrasting commentaries on the constitutionality and appropriateness of the Duro fix, see Gould, supra note 73; Nell Jessup Newton, Permanent Legislation to Correct Duro v. Reina, 17 AM. INDIAN L. REV. 109 (1992); and Alex Tallchief Skibine, Duro v. Reina and the Legislation that Overturned It: A Power Play of Constitutional Dimensions, 66 S. CAL. L. REV. 767 (1993). A recent Eighth Circuit panel decision seriously misunderstood the source of the tribal power exercised when a nonmember Indian is prosecuted. In United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), district court judgment reinstated by equally divided en banc court per curiam, 165 F.3d 1209 (8th Cir. 1999), petition for cert. filed, U.S. Apr. 29, 1999 (No. 98-9211), the district court had held that double jeopardy did not bar the federal prosecution of a nonmember Indian for a crime on a reservation for which he had already been tribally prosecuted. A majority of the Eighth Circuit panel disagreed. The panel reasoned that tribal criminal jurisdiction over nonmember Indians pursuant to the Duro fix resulted from delegated federal authority, not inherent tribal sovereignty, and thus the defendant had already been prosecuted once by the same sovereign that sought to subject him to criminal penalty again. See id. at 824. The panel recognized that in the Duro fix Congress intended to recognize inherent tribal authority rather than to delegate new federal authority. See id. at 823. The panel concluded, however, that it was the judicial, not the congressional, role to establish the baseline of tribal sovereignty, and that any congressional modification of the baseline enhancing tribal authority amounted to a delegation of federal power. See id. at 824. In dissent, Judge Morris Arnold understood that Oliphant and Duro were merely federal common-law decisions subject to congressional revision. See id. at 825 (M. Arnold, J., dissenting). Judge Arnold was clearly correct, as a brief example should demonstrate. Suppose that the federal courts conclude that a state regulation of semitrailer truck length unduly burdens interstate commerce and declare the state law invalid under the dormant Commerce Clause doctrine - which, although a constitutionally rooted rule, is actually best understood as an aspect of federal common law. See infra text accompanying notes 326-327. Then suppose that Congress enacts legislation authorizing states to regulate the length of such trucks. Surely when the state resumes truck-length regulation, it is exercising its inherent police power - which always existed, even though for a time it was preempted by federal common law - rather than some peculiar delegated federal authority. The effect of the congressional authorizing legislation was to destroy the preemptive barrier of federal common law - thereby allowing the always-existing-but-once-preempted local police power to spring back free from judicial interference - not to delegate special federal power to the state. This is the way that we understand federal preemption of the local police power. It should also be the way that we evaluate the Duro fix. Before European discovery of this continent, tribes had the local police power. The federal common-law decision in Duro preempted that police power over nonmember Indians; the Duro fix simply lifted the federal common-law preemption from the tribe's police power. The prosecution of nonmember Indians is now, and always has been, an exercise of inherent tribal authority - it was just that, for a time, this authority was preempted by federal common law. Accordingly, when the tribe first prosecutes a nonmember Indian and then the federal government prosecutes that defendant on the same set of facts, there is no double jeopardy problem because the prosecutions are accomplished by different sovereigns. Cf. United States v. Wheeler, 435 U.S. 313 (1978) (holding that tribal prosecution of a member is pursuant to inherent tribal authority, so that later prosecution by the United States for the same offense does not offend double jeopardy).
336. Despite Dura's reference to Reid v. Covert, see supra text accompanying notes 203-213, I am unaware of any court that has struck down the "Duro fix" as beyond congressional power. Cf. Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 946 n.7 (9th Cir. 1998) (noting this concern). For contrasting commentaries on the constitutionality and appropriateness of the Duro fix, see Gould, supra note 73; Nell Jessup Newton, Permanent Legislation to Correct Duro v. Reina, 17 AM. INDIAN L. REV. 109 (1992); and Alex Tallchief Skibine, Duro v. Reina and the Legislation that Overturned It: A Power Play of Constitutional Dimensions, 66 S. CAL. L. REV. 767 (1993). A recent Eighth Circuit panel decision seriously misunderstood the source of the tribal power exercised when a nonmember Indian is prosecuted. In United States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), district court judgment reinstated by equally divided en banc court per curiam, 165 F.3d 1209 (8th Cir. 1999), petition for cert. filed, U.S. Apr. 29, 1999 (No. 98-9211), the district court had held that double jeopardy did not bar the federal prosecution of a nonmember Indian for a crime on a reservation for which he had already been tribally prosecuted. A majority of the Eighth Circuit panel disagreed. The panel reasoned that tribal criminal jurisdiction over nonmember Indians pursuant to the Duro fix resulted from delegated federal authority, not inherent tribal sovereignty, and thus the defendant had already been prosecuted once by the same sovereign that sought to subject him to criminal penalty again. See id. at 824. The panel recognized that in the Duro fix Congress intended to recognize inherent tribal authority rather than to delegate new federal authority. See id. at 823. The panel concluded, however, that it was the judicial, not the congressional, role to establish the baseline of tribal sovereignty, and that any congressional modification of the baseline enhancing tribal authority amounted to a delegation of federal power. See id. at 824. In dissent, Judge Morris Arnold understood that Oliphant and Duro were merely federal common-law decisions subject to congressional revision. See id. at 825 (M. Arnold, J., dissenting). Judge Arnold was clearly correct, as a brief example should demonstrate. Suppose that the federal courts conclude that a state regulation of semitrailer truck length unduly burdens interstate commerce and declare the state law invalid under the dormant Commerce Clause doctrine -which, although a constitutionally rooted rule, is actually best understood as an aspect of federal common law. See infra text accompanying notes 326-327. Then suppose that Congress enacts legislation authorizing states to regulate the length of such trucks. Surely when the state resumes truck-length regulation, it is exercising its inherent police power - which always existed, even though for a time it was preempted by federal common law - rather than some peculiar delegated federal authority. The effect of the congressional authorizing legislation was to destroy the preemptive barrier of federal common law - thereby allowing the always-existing-but-once-preempted local police power to spring back free from judicial interference - not to delegate special federal power to the state. This is the way that we understand federal preemption of the local police power. It should also be the way that we evaluate the Duro fix. Before European discovery of this continent, tribes had the local police power. The federal common-law decision in Duro preempted that police power over nonmember Indians; the Duro fix simply lifted the federal common-law preemption from the tribe's police power. The prosecution of nonmember Indians is now, and always has been, an exercise of inherent tribal authority - it was just that, for a time, this authority was preempted by federal common law. Accordingly, when the tribe first prosecutes a nonmember Indian and then the federal government prosecutes that defendant on the same set of facts, there is no double jeopardy problem because the prosecutions are accomplished by different sovereigns. Cf. United States v. Wheeler, 435 U.S. 313 (1978) (holding that tribal prosecution of a member is pursuant to inherent tribal authority, so that later prosecution by the United States for the same offense does not offend double jeopardy).
337. For discussions of the dormant Commerce Clause doctrine, see, for example, Lisa Heinzerling, The Commercial Constitution, 1995 SUP. CT. REV. 217; Michael A. Lawrence, Toward a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, 21 HARV. J.L. & PUB. POL'Y 395 (1998); and Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569.
338. For discussions of the dormant Commerce Clause doctrine, see, for example, Lisa Heinzerling, The Commercial Constitution, 1995 SUP. CT. REV. 217; Michael A. Lawrence, Toward a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, 21 HARV. J.L. & PUB. POL'Y 395 (1998); and Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569.
339. For discussions of the dormant Commerce Clause doctrine, see, for example, Lisa Heinzerling, The Commercial Constitution, 1995 SUP. CT. REV. 217; Michael A. Lawrence, Toward a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, 21 HARV. J.L. & PUB. POL'Y 395 (1998); and Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569.
340. See, e.g., Cooley v. Board of Wardens, 53 U.S. (12 How.) 298 (1851).
341. See Lawrence, supra note 323, at 411-12.
342. See, e.g., In re Rahrer, 140 U.S. 545 (1891); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-2, at 403-04 (2d ed. 1988) (noting that because the dormant Commerce Clause cases are "negative judicial inferences from a constitutional grant of power to Congress, the Supreme Court's doctrinal limitations on state interference are always subject to congressional revision").
343. Because Oliphant expressly stated that Congress could overturn its result by legislation, an occasional commentator has briefly noted the similarity between the suspensive veto adopted in that case and the Court's dormant Commerce Clause doctrines. See, e.g., Philip S. Deloria & Nell Jessup Newton, The Criminal Jurisdiction of Tribal Courts over Non-Member Indians: An Examination of the Basic Framework of Inherent Tribal Sovereignty Before and After Duro v. Reina, 38 FED. B. NEWS & J. 70, 74 (1991); Karl J. Kramer, Comment, The Most Dangerous Branch: An Institutional Approach to Understanding the Role of the Judiciary in American Indian Jurisdictional Determinations, 1986 WIS. L. REV. 989, 998-99.
344. Because Oliphant expressly stated that Congress could overturn its result by legislation, an occasional commentator has briefly noted the similarity between the suspensive veto adopted in that case and the Court's dormant Commerce Clause doctrines. See, e.g., Philip S. Deloria & Nell Jessup Newton, The Criminal Jurisdiction of Tribal Courts over Non-Member Indians: An Examination of the Basic Framework of Inherent Tribal Sovereignty Before and After Duro v. Reina, 38 FED. B. NEWS & J. 70, 74 (1991); Karl J. Kramer, Comment, The Most Dangerous Branch: An Institutional Approach to Understanding the Role of the Judiciary in American Indian Jurisdictional Determinations, 1986 WIS. L. REV. 989, 998-99.
345. U.S. CONST, art. I, § 8, cl. 3.
346. See Frickey, supra note 23, at 35-36. As explained there, congressional plenary power is no mystery to the legal realist: Legislative power to conduct colonization is an essential attribute of any colonial society, and it is far more efficient to centralize that power in the Congress than to disperse it among the states. See id. at 52-74.
347. See United States v. Kagama, 118 U.S. 375, 378-79 (1886) (holding that the Indian Commerce Clause cannot justify federal legislation regulating noncommercial intratribal affairs).
348. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989).
349. As to interstate commerce, this notion has solid judicial recognition all the way back to Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196-97 (1824).
350. See, e.g., Cooley v. Board of Wardens, 53 U.S. (12 How.) 298, 320 (1851).
351. This summary is similar to the "Unitary Framework" of Lawrence, supra note 323, at 416-17.
352. See, e.g., South Carolina State Highway Dep't v. Barnwell Bros., 303 U.S. 177, 184 n.2 (1938); TRIBE, supra note 326, § 6-5, at 409-10.
353. See United States v. Kagama, 118 U.S. 375, 383-84 (1886) (upholding a federal statute prohibiting intratribal crimes). The Supreme Court has never invalidated federal legislation on the theory that it unduly invaded tribal affairs. See supra note 53 and accompanying text.
354. Cf. United States v. Wheeler, 435 U.S. 313, 328-29 (1978) (holding that a tribe retains inherent sovereignty to prosecute a member even though Congress had also made the conduct a federal crime).
355. See Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 WIS. L. REV. 125, 139-40.
356. The other major precedents might also be explained as applications of the inquiry whether tribal regulation unduly burdens nonmembers who are not situated similarly to members. Merrion suggests that, when nonmembers have the capacity ex ante to negotiate with tribes, the federal courts should not supplement the bargain by adding common-law immunities to tribal authority. In contrast, where, as in Montana and Brendale, nonmember fee owners have no convenient way to negotiate ex ante with tribes, common-law immunities to tribal regulation may seem more appropriate. In addition, the power to tax at issue in Merrion, as it implicates the very capacity of a government to survive, may have been viewed as a stronger local justification for tribal authority than the power to regulate hunting and fishing (Montana) and to zone (Brendale) within the reservation. The tribal-court civil jurisdiction cases remain somewhat inscrutable under this analysis, however. Perhaps the nonmember store owner in Williams could have protected himself ex ante, so that his failure to find some way to avoid tribal court for his collection actions required no judicial solicitude. National Farmers and Iowa Mutual may reflect a special judicial deference to other tribunals, but Strate indicates that this trend may have ended, at least for cases arising on nonmember land. The most recent decision, El Paso Natural Gas Co. v. Neztsosie, 119 S. Ct. 1430 (1999), suggests that tribal courts retain presumptive civil jurisdiction over nonmembers on Indian land. See supra note 277.
357. See 28 U.S.C. § 1441 (1994).
358. See Strate v. A-1 Contractors, 520 U.S. 438, 459 n.13 (1997).
359. The Court implicitly referred to forum-shopping concerns by noting that the protective action already filed by plaintiffs was in a state court that is "open to all who sustain injuries on North Dakota's highway," id. at 459, and that is "physically much closer by road to the accident scene . . . than [is] the tribal courthouse," id. at 445 n.4 (quoting Brief for Respondents at 8 n.6).
360. 398 U.S. 375 (1970).
361. Id. at 390-91. On the theory that courts should reason by analogy from statutes that do not govern the litigative dispute but express a clear legislative policy strongly counseling the evolution of the common law, see James McCauley Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (1934); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908); and Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4 (1936). For an excellent student note on the theory that was written soon after Moragne, see Michael J. Bean, Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 YALE L.J. 258 (1972).
362. Id. at 390-91. On the theory that courts should reason by analogy from statutes that do not govern the litigative dispute but express a clear legislative policy strongly counseling the evolution of the common law, see James McCauley Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (1934); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908); and Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4 (1936). For an excellent student note on the theory that was written soon after Moragne, see Michael J. Bean, Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 YALE L.J. 258 (1972).
363. Id. at 390-91. On the theory that courts should reason by analogy from statutes that do not govern the litigative dispute but express a clear legislative policy strongly counseling the evolution of the common law, see James McCauley Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (1934); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908); and Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4 (1936). For an excellent student note on the theory that was written soon after Moragne, see Michael J. Bean, Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 YALE L.J. 258 (1972).
364. Id. at 390-91. On the theory that courts should reason by analogy from statutes that do not govern the litigative dispute but express a clear legislative policy strongly counseling the evolution of the common law, see James McCauley Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (1934); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908); and Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4 (1936). For an excellent student note on the theory that was written soon after Moragne, see Michael J. Bean, Note, The Legitimacy of Civil Law Reasoning in the Common Law: Justice Harlan's Contribution, 82 YALE L.J. 258 (1972).
365. See Moragne, 398 U.S. at 391-92 ("Today we should be thinking of the death statutes as part of the general law." (quoting Roscoe Pound, Comment on State Death Statutes - Application to Death in Admiralty; 13 NACCA L.J. 188, 189 (1954))).
366. See Robert F. Williams, Statutes as Sources of Law Beyond Their Terms in Common-Law Cases, 50 GEO. WASH. L. REV. 554, 571-73, 583 n. 160 (1982).
367. See id. at 557-58; Bean, supra note 345, at 258-59.
368. See ESKRIDGE & FRICKEY, supra note 292, at 398-411 (examining case law and commentary on statutes as sources of law beyond their terms).
369. Bean, supra note 345, at 279.
370. William Eskridge & John Ferejohn, Politics, Interpretation, and the Rule of Law, in NOMOS XXXVI: THE RULE OF LAW 265, 267 (1994).
371. On the narrow construction of criminal statutes, see, for example, Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345.
372. Thus, federal Indian law involves more than the allocation of lawmaking power between the federal courts and Congress - the most fundamental question is whether either federal lawmaking entity has displaced underlying tribal authority. In this respect, Strate was a considerably more controversial exercise of the Moragne move than was Moragne itself, because there the Court may have been "influenced by the fact that it was dealing with an area of federal admiralty law, and not with an area in which the effect of a change would be to preempt otherwise applicable state law." David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921, 953 (1992).
373. Cf. Frickey, supra note 11, at 1764-65 (criticizing scholarship suggesting that general equal protection theories should be imported into federal Indian law as making "an error of significant magnitude, for it confuses a puzzling, conceptually intractable, and little-understood corner of public law with its mainstream").
374. Indeed, even in the seemingly much simpler area of tort actions for wrongful death on the waters, the judicial implementation of Moragne has proved surprisingly difficult and controversial. See, e.g., Robert Force, The Curse of Miles v. Apex Marine Corp.: The Mischief of Seeking "Uniformity" and "Legislative Intent" in Maritime Personal Injury Cases, 55 LA. L. REV. 745 (1995) (discussing cases following Moragne).
375. See Brendale v. Confederated Tribes & Bands of the Yakima Nation, 492 U.S. 408, 430-31 (1989) (White, J., joined by Rehnquist, C.J., and Scalia & Kennedy, JJ.)
376. See id. at 431.
377. See id. 359. See supra text accompanying notes 222-230.
378. See supra note 211 (explaining the jurisdictional void concerning minor crimes committed by nonmember Indians against tribal members that resulted from Duro). 363. See Frickey, supra note 22, at 406-17.
379. On this myth, see, for example, BRIAN W. DiPPIE, THE VANISHING AMERICAN: WHITE ATTITUDES AND U.S. INDIAN POLICY (1982); and Robert N. Clinton, Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law, 46 ARK. L. REV. 77, 79-80 (1993).
380. On this myth, see, for example, BRIAN W. DiPPIE, THE VANISHING AMERICAN: WHITE ATTITUDES AND U.S. INDIAN POLICY (1982); and Robert N. Clinton, Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law, 46 ARK. L. REV. 77, 79-80 (1993).
381. The outcome in Bourland could easily have been avoided by interpreting Oliphant and Duro as merely involving tribal criminal authority and Montana as merely involving tribal civil regulatory authority over nonmember fee lands. These limiting interpretations would then have freed the Court in Strate to consider National Farmers and Iowa Mutual as the authoritative precedents concerning tribal-court jurisdiction over nonmember defendants, and to conclude that Montana had no relevance there, because the conduct of the nonmember defendant in question occurred outside nonmember fee land.
382. See Getches, supra note 22, at 1573-76.
383. Cf. Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S. Ct. 1187 (1999) (declining to construe a treaty or an executive order as abolishing tribal off-reservation hunting, fishing, and gathering rights); Kiowa Tribe v. Manufacturing Techs., 118 S. Ct. 1700, 1705 (1998) (refusing to abolish tribal sovereign immunity by judicial decision, and instead leaving the issue for Congress).
384. See Frickey, supra note 68, at 1204-09.
385. In earlier work, I have attempted to make the case that, at a minimum, the opponents of tribal sovereignty bear the burden of argumentative persuasion today. A major piece of the defense of a baseline of tribal authority is based on a conceptualization of the Marshall Court precedents as attempts to mediate colonialism and constitutionalism rather than simply to privilege the former. See Frickey, supra note 22; supra text accompanying notes 54-60. More fundamentally, I have suggested that our traditions of limited government, consent of the governed, and respect for autonomy are simply incompatible with our historical and contemporary unilateral displacement of indigenous persons. Today, the international community almost universally condemns future acts of colonization. The failure of policies such as allotment demonstrates that practical concerns support the autonomy of tribes as well. See Frickey, supra note 23, at 48 & n.71.
386. See Stephen Cornell & Joseph P. Kalt, Reloading the Dice: Improving the Chances for Economic Development on American Indian Reservations, in WHAT CAN TRIBES DO? STRATEGIES AND INSTITUTIONS IN AMERICAN INDIAN ECONOMIC DEVELOPMENT (Stephen Cornell & Joseph P. Kalt eds., 1995).
387. See, e.g., Robert N. Clinton, Tribal Courts and the Federal Union, 26 WILLAMETTE L. REV 841, 889-94 (1990) (exploring, but not necessarily endorsing, such options). For the argument that a dialogue between tribal courts and the state and federal courts would more productively advance fair and efficient adjudication respectful of tribal sovereignty than would litigation in the federal courts about the capacities of tribal judiciaries, see B.J. Jones, Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 WM. MITCHELL L. REV. 457 (1998).
388. See, e.g., Robert N. Clinton, Tribal Courts and the Federal Union, 26 WILLAMETTE L. REV 841, 889-94 (1990) (exploring, but not necessarily endorsing, such options). For the argument that a dialogue between tribal courts and the state and federal courts would more productively advance fair and efficient adjudication respectful of tribal sovereignty than would litigation in the federal courts about the capacities of tribal judiciaries, see B.J. Jones, Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal-State and Tribal-Federal Court Relations, 24 WM. MITCHELL L. REV. 457 (1998).
389. See N. Bruce Duthu, Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian Country, 19 AM. INDIAN L. REV. 353, 399-400 (1994). Duthu's article presents a good overview of the implicit-divestiture cases as well as a realistic perspective upon potential responses to them.
390. See id. at 400.
391. Authorizing the tribe to exercise a power of eminent domain would seem similar to acknowledging tribal civil regulatory authority, which was upheld in Mazurie. See supra text accompanying notes 154-157. If Congress may authorize eminent domain, it might very well have the lesser-included power of authorizing a right of first refusal to the tribe. One important feature of both of these proposals is that the nonmember landowner would receive fair market value for the land. For one recent congressional proposal to promote land consolidation on reservations, see H.R. 4325, 105th Cong. (1998).
392. See BORDEWICH, supra note 6, at 342 (referring to the Great Plains as a "region for the most part so ill-suited to modern development that the descendants of the settlers who muscled the Indians off in the nineteenth century have largely abandoned it themselves").
393. See Frickey, supra note 11, at 1777-84.
394. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board -consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in grants to agencies of county or tribal government working to benefit those who are socially or economically affected by this oil and gas development. For an overview of an innovative bilateral agreement concerning shared governance by the federal government and a tribe, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997); and Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order Accomplish?, 83 MINN. L. REV. 523 (1998). On jurisdictional agreements between states and tribes, see, for example, P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 GA. L. REV. 365, 373-74 (1994); David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 REV. CONST. STUD. 120, 121 (1993); Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 59 (1997); and Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999).
395. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board - consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in grants to agencies of county or tribal government working to benefit those who are socially or economically affected by this oil and gas development. For an overview of an innovative bilateral agreement concerning shared governance by the federal government and a tribe, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997); and Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order Accomplish?, 83 MINN. L. REV. 523 (1998). On jurisdictional agreements between states and tribes, see, for example, P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 GA. L. REV. 365, 373-74 (1994); David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 REV. CONST. STUD. 120, 121 (1993); Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 59 (1997); and Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999).
396. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board - consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in
397. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board - consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in grants to agencies of county or tribal government working to benefit those who are socially or economically affected by this oil and gas development. For an overview of an innovative bilateral agreement concerning shared governance by the federal government and a tribe, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997); and Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order Accomplish?, 83 MINN. L. REV. 523 (1998). On jurisdictional agreements between states and tribes, see, for example, P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 GA. L. REV. 365, 373-74 (1994); David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 REV. CONST. STUD. 120, 121 (1993); Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 59 (1997); and Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999).
398. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board - consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in grants to agencies of county or tribal government working to benefit those who are socially or economically affected by this oil and gas development. For an overview of an innovative bilateral agreement concerning shared governance by the federal government and a tribe, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997); and Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order Accomplish?, 83 MINN. L. REV. 523 (1998). On jurisdictional agreements between states and tribes, see, for example, P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 GA. L. REV. 365, 373-74 (1994); David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 REV. CONST. STUD. 120, 121 (1993); Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 59 (1997); and Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999).
399. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board - consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in grants to agencies of county or tribal government working to benefit those who are socially or economically affected by this oil and gas development. For an overview of an innovative bilateral agreement concerning shared governance by the federal government and a tribe, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997); and Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order Accomplish?, 83 MINN. L. REV. 523 (1998). On jurisdictional agreements between states and tribes, see, for example, P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 GA. L. REV. 365, 373-74 (1994); David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 REV. CONST. STUD. 120, 121 (1993); Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 59 (1997); and Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999).
400. One obvious example would be the granting of some sort of voting rights to nonmembers. This solution might make sense on some reservations, but I would hope that it would be accomplished by voluntary compromise by the tribe, not through unilateral congressional action. Related strategies might include allowing nonmembers to serve on juries and constructing approaches to shared governance for limited-purpose institutions. For discussion of one such innovative arrangement, see Utah Department of Community and Economic Development, 1997 Annual Report - Uintah Basin Revitalization Fund (visited Mar. 16, 1999) 〈http://www.ce.ex.state.ut.us/annrep97/ubrf.html〉, which describes a five-member board - consisting of a governor's designee, one county commissioner each from the two affected counties, and two representatives of the Ute Indian Tribe's Business Committee - that distributes revenue from the state severance tax imposed upon the extraction of minerals on tribal trust lands in grants to agencies of county or tribal government working to benefit those who are socially or economically affected by this oil and gas development. For an overview of an innovative bilateral agreement concerning shared governance by the federal government and a tribe, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997); and Carl H. Johnson, Note, Balancing Species Protection with Tribal Sovereignty: What Does the Tribal Rights-Endangered Species Order Accomplish?, 83 MINN. L. REV. 523 (1998). On jurisdictional agreements between states and tribes, see, for example, P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question, 28 GA. L. REV. 365, 373-74 (1994); David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government, 1 REV. CONST. STUD. 120, 121 (1993); Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ. ST. L.J. 25, 59 (1997); and Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922 (1999).
401. For my argument, see Frickey, supra note 23.