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Excerpted from: Angela R. Riley, Native Nations and the Constitution: An Inquiry into "Extra-constitutionality", 130 Harvard Law Review Forum 173 (April 2017)(203 Footnotes) (Full Document)




Federal Indian law is oftentimes characterized as a niche and discrete area of law, but this depiction really misstates the breadth and relevance of the field. Federal Indian law is a horizontal subject: virtually every area of law in the American canon has an "Indian law" component: taxation, water rights, civil and criminal jurisdiction, labor law, and so on. With 567 federally recognized Indian tribes in the United States, which control over 60 million acres in the contiguous forty-eight states alone, Indian tribes are an integral part of the legal fabric of America.

At the same time, American Indians are--metaphorically and literally--outside the standard frame of American law. Since the 1800s, Indian tribes have been characterized as "anomalous" within the U.S. federal system. This unique status has largely been created by centuries of federal law and policy, although deeply embedded tribal values have also played a role. Through treaties, the Constitution, federal statutes, and Supreme Court jurisprudence, the distinct status of tribes as sovereigns has been repeatedly affirmed in both domestic and international law. This history sets a baseline for understanding Indian tribes' historical and continued resistance to integration and assimilation, which contrasts with the story of immigrants as well as those brought to this continent involuntarily as slaves. Engaging with colonial powers--and ultimately, the United States--on a sovereign-to-sovereign basis since first contact, tribes have sought largely to be left alone to govern their own affairs.

Tribes' motivations for safeguarding their differentness are multifaceted, but history shows that commitments to protecting and defending Indian lands, as well as the fight for continued cultural survival, were and remain central motivations. Hundreds of treaties and governmental policies designed--albeit haphazardly and inconsistently--to keep Indian tribes together, protected from encroachment by land-hungry settlers, oftentimes on reservations, further reflect this. So tribes' mediated position--as situated both within and without the United States as "domestic dependent nations" been characterized as Indian peoples' desire for "measured separatism."

In the modern era, Indian law cases continue to move through the federal courts at fairly high rates, with a significant number heard at the Supreme Court. But even among advocates with shared commitments to tribal rights, there remain unanswered questions about how best to advocate for tribal sovereignty within the larger framework of federal law and the Constitution. At times, arguments for tribal sovereignty and Indian rights focus on ensuring the same fair and equal treatment for tribal governments and Indian people that are otherwise provided in U.S. law. At other times, arguments hinge on--in the words of the late scholar Phil Frickey-- Native American exceptionalism.

The tension between formal equality and respect for difference in the Indian law context is more than just a semantic distinction. A capacious understanding of equality--as is presented in the international indigenous rights literature regarding conceptions of equality for indigenous peoples, for example--can perhaps accommodate and reconcile this potential incoherence. But within the framework of U.S. law as understood by the three branches of government, and by the Supreme Court in particular, American law operates more as a blunt instrument. American jurisprudence may not be fully capable of embracing more nuanced conceptions of equality that acknowledge and reify the idea that fair and equal treatment for Indian nations requires specialized understanding and application. And because it appears that the courts--and the Supreme Court in particular--may be reluctant to conceive of Indian rights in this way, it is important to contemplate how federal law does--or ought to--relate to tribal rights.

The puzzle of reconciling federal Indian law with larger American jurisprudence has both internal and external dimensions. That is to say, in some cases, the United States government has used Indian difference to justify abhorrent acts against Indian tribes and Indian people. For example, the Supreme Court has relied on such distinctions to deny First Amendment religious freedoms to American Indians and to hold that tribes were not entitled to compensation under the Fifth Amendment when the U.S. government seized aboriginal title. Understood in this light, theories of racial inferiority around Indianness directly fueled the jurisprudential exceptionalism that deprived Indians and Indian tribes of equal rights under American law.

Ironically, at other times, Indian nations themselves are bound to advance positions that may be harmful to tribes or tribal members as a consequence of adhering to a principle of exceptionalism. For example, because existing jurisdictional structures make American Indians more likely to be criminally prosecuted by the federal rather than state governments, Indians on balance serve longer prison terms than non-Indians for the same crimes. Though these disparities arouse ample criticism on the ground in Indian communities, tribes exist in a double bind, where they must continue to defend a system that produces inequities in order to stave off any further encroachment by state governments.

These and many other scenarios raise pressing concerns. Even in the Indian law cases just decided in the Court's last Term, including United States v. Bryant and Dollar General Corp. v. Mississippi Band of Choctaw Indians (Mississippi Choctaw), the question of tribal authority--as applied in civil as well as criminal contexts, as applicable to the rights of Indians and non-Indians, and as largely unconstrained by the U.S. Constitution's Bill of Rights--is knocking at the door of federal Indian law and is demanding to be answered.

So what exactly does it mean for a sovereign to be both within and without the federal system? What is the best way to understand tribes, which are mentioned expressly in the Constitution, and yet largely remain beyond the reach of the Bill of Rights? What is the present and future condition of Indian nations, which seek robust rights of self-determination and self-governance within the contours of American federalism? And how, if at all, are these rights modified when tribes have extensive dealings with non-Indians?

This brief Essay sketches out a few thoughts regarding the past, present, and future of federal Indian law, particularly in relation to the question of whether, and to what extent, Indian tribes are "extraconstitutional." The primary goal of this Essay is to demonstrate how and why the phrase, first used by Justice Kennedy in relation to Indian tribes in 2004, is worth further consideration and may offer insights as to how to think about Indian rights and tribal sovereignty going forward.

As an initial matter, I concede the somewhat provocative nature of the inquiry. It's quite clear that the Constitution contemplates Indian tribes and tribal rights and establishes a structure for federal-tribal relations. At the same time, the Bill of Rights does not apply directly to the tribes via the Constitution (though Congress has addressed this gap through statute). Thus, questions remain as to whether and to what extent tribal governments are constrained by the Bill of Rights or comparable restrictions, and how inherent tribal sovereignty relates to the power of Congress to modify tribal rights.

With such a broad charge, this Essay gives relatively superficial treatment to these questions, but it aspires to spark conversation about Indian law today and contemplate challenges and opportunities for future advocacy in the field. Part I provides a brief and succinct history of federal Indian law, particularly as it pertains to the constitutional status of tribes, carrying this analysis up through the passage of the 1968 Indian Civil Rights Act (ICRA). In so doing, Part I lays the foundation for understanding the ramifications of tribal exceptionalism in both civil and criminal cases arising in Indian country, with a particular focus on the Supreme Court's immediate post-ICRA examination of these questions. Part II moves into the contemporary cases, focusing in particular on Justice Kennedy and the concerns he continues to raise about tribes' unique and anomalous status, drawing connections to his opinions in cases regarding the application of the Bill of Rights at Guantanamo and in other contexts. Recent cases, particularly those decided in the 2016 Term, illustrate some of the present and future challenges in the field. This Essay concludes by highlighting core tenets, pointing out limiting principles, and touching on some likely future complexities for lawyers practicing Indian law.

[. . .]

Professor Phil Frickey presciently wrote almost two decades ago that the federal courts had created a "common law for our age of colonialism." Given that the field is not moored in the Constitution--in the sense that Indian rights are not constitutionally protected in the same way that the Constitution guarantees the continued existence of the states and the Union Supreme Court in particular has taken the prerogative to build its own body of federal Indian law. This rather "schizophrenic" body of law, whereby the Court decides tenets fundamental to issues of tribal sovereignty at times on a seemingly ad hoc basis, creates enormous leeway for fashioning the field. This makes the composition of the Supreme Court of utmost importance to the future of tribal sovereignty and Indian tribes. Numerous scholars have pointed out the dismal record of tribes at the Court in recent decades. Now with one vacancy on the Court and a President who has publicly criticized Indian tribes (he went up against them in the casino business the landscape--and the future--of federal Indian law could rapidly shift.

Whatever the ultimate composition of the Court, there is a storm brewing on the horizon. Indian tribes can expect to continue to face legal challenges in a variety of possible cases: tribal justice systems that emulate the Anglo-American model of trial and incarceration, but without all the corresponding constitutional protections, including the right to provided counsel; tribes' assertion of civil adjudicatory authority over non-Indians in tribal courts without federal court review; in questions of inherent versus delegated authority, such as the jurisdiction affirmed by the VAWA provisions; in civil rights battles for both members and nonmembers; in sovereign immunity conflicts, particularly in questions regarding individual officer liability; and in scenarios where Indian difference potentially creates disproportionately negative outcomes for Indian people. Critics from outside Indian country undoubtedly raise these concerns, but some criticisms come from Indian people themselves, who rightfully question whether they are receiving just and fair treatment under American law.

Chief Justice Marshall famously labeled tribes "domestic dependent nations" almost 200 years ago, and confusion about the "Indian problem" remains to this day. Inherent tribal sovereignty continues to serve as a core and unshakeable pillar of Indian law. At the same time, tribes remain under the plenary authority of Congress as a product of the wardship relationship created as a consequence of colonization and through the Indian Commerce Clause. As tribes enter a new era in terms of economic development, expansion of land bases, and efforts to assert greater control over their territory and the people within it, it's essential for lawyers in the field to reiterate and hold fast to the core principles of tribal sovereignty for the next hundred years.

I have sought in this Essay to explicate a more complete and nuanced understanding of "extraconstitutionality" to aid in this endeavor. In this light, Justice Kennedy's reference to Congress's attempts to subject nonmembers to the authority of "extraconstitutional" tribal governments should be analyzed in context. After all, though uniquely positioned vis-à-vis the Constitution, Indian tribes are irrefutably embedded in the document and are central to the historical and legal foundations of this country. The very identity of America as a nation has developed in relation with and in contrast to American Indians and Indian tribes. America is simply not America without an understanding and accommodation of the place of the more than five hundred Native Nations within it.

Thus, while understanding tribes as unbound by the Constitution's Bill of Rights, it is perhaps time to reframe the narrative and to highlight the rather unremarkable aspects of Indian law. In reality, Indian law is no more complex or muddled than any other field of law that requires mastering doctrinal puzzles, considering a long history, and embracing nuance and complexity. For advocates in the field, some of the concerns about tribes' "exceptional" status may be further ameliorated by more forcefully articulating the limiting principles that are inextricably tied up in tribal authority. These limits manifest in the federal government's policing of the scope of inherent tribal sovereignty, the relationship of sovereignty to property, and congressional plenary power, with corresponding baseline protections for those under tribal authority, among others. All of these things together aid in understanding the sovereign nature of Indian tribes, their relation to the Constitution and the federal system, and how to clearly articulate and define tribal rights moving forward.

Professor of Law, UCLA School of Law; Director, Native Nations Law, and Policy Center.

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