Indigenous, Indian, and Aboriginal Law | Legislation
In this contribution to the University of Tulsa's symposium on United States v. Lara (2004), I tell the history of Lara as a story of unified agency by Indian peoples and suggest that it is part of a broader transformation in the relationship of Indian people to Indian law. In United States v. Lara, the Supreme Court affirmed congressional power under the constitution to recognize inherent criminal jurisdiction over non-member Indians, although the Supreme Court had declared there was no such jurisdiction as a matter of federal common law. That the jurisdiction was inherent is significant, because it means that successive prosecutions by tribes and the federal government do not run afoul of the Fifth Amendment prohibition on double jeopardy, and that tribes in exercising this jurisdiction are not otherwise bound by the U.S. Constitution. (They are, however, bound by the Indian Civil Rights Act, which imposes most of the Bill of Rights on Indian tribes.) While the decision represents a victory for tribal interests, it relied substantially on the plenary power doctrine, a doctrine which justifies broad congressional power regarding Indian affairs and which has been justifiably criticized for its roots in colonization of Indian people. In the essay, I show that despite the use of the doctrine, each step leading to the Lara decision, from the advocacy for the statute Lara upheld, to the form the statute took, to the way the case was presented to the Supreme Court, was importantly shaped and transformed by advocates from Indian country. I conclude by suggesting how this Indian action contributes to our understanding of the plenary power doctrine in Indian law.
Berger, Bethany, "United States v. Lara as a Story of Native Agency" (2004). Faculty Articles and Papers. 209.