Inherent Sovereignty Outline

1. 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

2. 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...

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