#11465 - Inherent Sovereignty - Federal Indian Law

The Nature and Source of Tribal Sovereignty

1. Talton v. Mayes

   1. Cherokee Indian murdered another Cherokee – the tribe convicted him and sentences him to death – D petitions for writ based on

      1. his convictions violated the 5^th Amendment grand jury and due process clause – argues the grand jury he was given wasn’t big enough

   2. Court cites treaties etc. to show that the murder of a tribal member by another tribal member is not an offense against the US but an offense against local laws

   3. ISSUE: does the 5^th Amendment apply to the local legislation of the Cherokee Nation/Cherokee proceedings

      1. To get to this court says it must determine the origin of the power of the local government comes from

         1. if they are federal powers created by and springing from the constitution then they are controlled by 5^th

         2. if they are not created from the Constitution then they are not subject to the 5^th

   4. Hold: the powers of self government existed before the US Constitution and therefore they are not bound by the 5^th Amendment

      1. Cherokee nation existed before the Constitution

      2. federal government may have altered their sovereignty but it didn’t come from the feds

      3. Cherokees were responding to a violation of their own internal laws

      4. until the US chooses to limit this power it still exists

The next case ultimately asks the same question but much has changed in the nearly 100 years since Talton

1. by the 1970s a criminal defendant in state court had essentially the same constitutional rights as criminal defendant in federal court bc of incorporation.

   1. thus saying the tribes were subject to the constitution would put them on equal footing with the states

   2. This happened to some extent in Indian Law as a result of the Indian Civil Rights Act

      1. United State v. Wheeler

         1. Issue: Whether double jeopardy of 5^th Amendment bars the prosecution of an Indian in federal court under the MCA when he has previously been convicted of a lesser included offense arising out of the same incident

         2. RULE: prosecutions under the laws of separate sovereigns do not subject the D for the same offence to be twice

         3. Subissue: again comes down to where the power to punish tribal offenders comes from

         4. RULE: until Congress acts, the tribes retain their existing sovereign powers

         5. HOLD: No double jeopardy bc dual sovereignty applies here

            1. Reasoning:

               1. no implicit loss of sovereignty by virtue of their dependent status

                  1. something new the court brings that could be bad for tribes though

               2. there are some laws that limit the tribes’ ability to punish but none of them created the tribe’s power to govern themselves and punish crimes committed by tribal offenders – that existed before the constitution and has never been taken away explicitly or implicitly

         6. Big Modern Rule: Tribal sovereignty is inherent retained sovereignty not the product of the Constitution or the Federal government

         7. Aftermath: Wheeler seems to expand the amount of sovereignty lost through discovery (their dependent status)

The Indian Civil Rights Act of 1968

1. Created federally enforceable quasi-constitutional rights against Indian Tribes

   1. it includes most but not all provisions of the bill of rights with the major concern being concern for the rights of criminal defendants in tribal court

      1. missing rights

         1. 2^nd Amendment

         2. no right to a speedy public trial

         3. tribes don’t have to provide council

         4. no establishment clause

         5. no 15^th Amendment

2. Arguably it is not that useful bc it does not waive sovereign immunity or create a private right of action

   1. Santa Clara Pueblo v. Martinez

      1. The tribe required a child have paternal membership in order to be eligible for membership. Woman who is member sues because her children are unable to become members, and were thus not eligible for certain benefits, including ability to stay on reservation if she died

      2. Challenged under equal protection provision in ICRA

         1. Issue: Is she allowed to challenge this?

      3. There is a problem of sovereign immunity bc member is suing tribe

         1. court says that Congress has the power to waive sovereign immunity but it must be made clear in the...