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Marbury V. Madison to Tribal Courts' Criminal Jurisdiction

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Marbury V. Madison to Tribal Courts' Criminal Jurisdiction TRIBES, WARS, AND THE FEDERAL COURTS: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts' Criminal Jurisdiction Judith Resnikt TABLE OF CONTENTS I. CONSTITUTIONALISM AS REASONING ABOUT CONSTRAINT 78 II. FEDERAL INDIAN LAW AND THE PROBLEMS OF AUTHORITy 93 III. DIFFERENCE, ASSIMILATION, AND SOVEREIGNTy 96 IV. JURISDICTION BY DISTRUST OF THE "OTHER" COURT SYSTEM 102 V. JURISDICTION BY POLITICAL AFFILIATION 111 VI. SOURCES OF SOVEREIGNTY, DOUBLE JEOPARDY, AND ASYMMETRY 116 VII. REASONING FROM MARBURY 125 VIII. INTER-DEPENDENT SOVEREIGNTIES 130 ABSTRACT The thesis of this article is that by examining Federal Indian Law one better understands that the American constitutional project includes many instances in which power is claimed by force and justified by necessity. Yet jurists sit in judgment, requiring an accounting even when they condone or license exercises of such power. Moreover, occasionally, judges object in the name of limited government powers, ofobligations to recognize separately-constituted polities, t Judith Resnik, Arthur Liman Professor of Law, Yale Law School. All rights reserved. Copyright, 2004. This article is based on a presentation at a panel entitled Indian Tribes and the Federal Courts: The Overlooked Sovereigns in Federal Jurisdiction that was organized by Robert Clinton and Louise Weinberg for the Section on the Federal Courts, held at the annual meeting of the American Association of Law Schools in January of 2004. My thanks to them, my co-panelists, Professors Clinton, Frank Pommersheim, and Catherine Struve from whom I have learned a great deal, to participants at a Yale Law School faculty workshop, to Dennis Curtis, Bruce Ackerman, Alex Aleinikoff, Barbara Atwood, Carole Goldberg, Vicki Jackson, Robert Laurence, Sandy Levinson, Christian McMillen, and Catherine Struve for reading drafts, as well as to Anita Khandelwal for her engaged and able research assistance and to Alison Mackenzie, Bertrall Ross, Jennifer Peresie, and Joseph Blocher for yet additional research help, and to Gene Coakley for always providing generous and substantial help in ferreting out sources. HeinOnline -- 36 Ariz. St. L.J. 77 2004 78 ARIZONA STATE LAWJOURNAL [Ariz. 81. L.J. and of individual rights to equality and liberty. Although lacking much by way of citation to constitutional text, Federal Indian Law represents an example of this genre of federal lawmaking, with its commitment to constitutionalism by judges schooled in the traditions of Marbury v. Madison. The need to bring Federal Indian Law to the fore of the elaboration of American legal doctrine has more urgency in the wake of 9/11, as several lawsuits now challenge the prosecutorial powers of the Executive Branch. Federal Indian Law cases, like these "war cases," are about whether unlimited authority can be founded in physical power. Decisionmaking in both sets of cases requires elaboration from a Constitution with little direct text and a great deal of Court-based extrapolation. In both kinds of cases, the government is asserting a right to power and challengers plead, in the name ofthe Constitution, for constraint. One such example is United States v. Lara, in which federal prosecutors charged Billy Jo Lara with a criminal offense after the Spirit Lake Nation of North Dakota had done so and obtained a conviction. In Lara, the federal government relied on the "dual sovereignty exception" to double jeopardy, crafted in the 1920s by the Supreme Court to prevent state prosecutions from immunizing individuals from federal enforcement of Prohibition. The Lara prosecutors have argued that doctrine ought similarly to permit sequential tribal and federal prosecutions. One legal question is whether the federal prosecution is barred because the tribe's jurisdictional power is derivative of (rather than separate from) the federal government. Another question is which branch ofgovernment -- the Court or Congress -- decides that issue. Under current doctrine, a further wrinkle is presented because a tribe's criminal jurisdiction reaches only "Indians" who are its members. That proposition stems from the 1978 Supreme Court decision of Oliphant v. Suquamish Indian Tribe, holding that tribal courts had criminal jurisdiction over "Indians" but not over non-Indians. In 1990, in Duro v. Reina, the Court further defined the jurisdictional line by concluding that tribal courts had jurisdiction only over their own members. Soon thereafter, Congress intervened by stating that it "recognized and affirmed" tribes' "inherent power" to exercise misdemeanor criminal jurisdiction over "all Indians." How might these questions of tribal criminal jurisdiction and jurisdiction-by-identity be answered? From the perspective of those tribal communities that claim the status of foreign nations subjected to conquest and colonialization, neither the courts or Congress are legally competent to decide. From that vantage point, Federal Indian Law is an illegitimate exercise in power with no source of authority other than physical might. But for those acknowledging the history of conquest yet believing that disentanglement of tribes from the United States is now implausible, the questions are ones to which legal actors in the United States need to respond. Here, I offer ways to reason, in light of constitutional aspirations embodied in Marbury, about the exercise of criminal jurisdiction by the tribes and its relationship to litigants' political affiliations and about federal courts' exercise of jurisdiction based on distrust of other court systems. I. CONSTITUTIONALISM AS REASONING ABOUT CONSTRAINT Because the federal courts are specified by the Constitution, jurisprudence about "The Federal Courts" centers on constitutional interpretation. I Indeed, in many courses devoted to the subject matter of 1. See, e.g., Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND. L. REv. 953 (1994) (discussing the premises to include values of the various competencies ofdifferent legal institutions, ofneutrality, and ofrule oflaw). HeinOnline -- 36 Ariz. St. L.J. 78 2004 36:0077] TRIBES, WARS, AND THE FEDERAL COURTS 79 "the Federal Courts," students begin with Marbury v. Madison,2 the iconic statement ofjudicial review in the name of constitutional supremacy. The presumption for which Marbury stands3 is that the Constitution is the 2. 5 u.s. (1 Cranch) 137 (1803); see RICHARD H. FALLON, JR., DANIEL J. MELTZER, & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS IN THE FEDERAL SYSTEM (5th ed. 2003) at 55 (presenting Marbury as the first case to be read after an introduction that includes the United States Constitution and a first chapter outlining the "development and structure of the federal judicial system"). Id. at 1-54. [hereinafter HART & WECHSLER, 5TH ED.]. Other casebooks that also start with Marbury as the first case include: DAVID P. CURRIE, FEDERAL COURTS: CASES AND MATERIALS 6-8 (4th ed. 1990); ROBERT N. CLINTON, RICHARD A. MATASAR& MICHAELG. COLLINS, FEDERAL COURTS: THEORY AND PRACTICE 35-37 (1996); MARTIN H. REDISH & SUZANNA SHERRY, FEDERAL COURTS: CASES, COMMENTS, AND QUESTIONS 2 (5th ed. 2002); LOUISE WEINBERG, FEDERAL COURTS: CASES AND COMMENTS ON JUDICIAL FEDERALISM AND JUDICIAL POWERS 2 (1994). In contrast, a few begin by reproducing other cases. See, e.g., CHARLES A. WRIGHT, JOHN B. OAKLEY, & CHARLES TILFORD, FEDERAL COURTS: CASES AND MATERIALS 7 (10th ed. 2001) (presenting Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809) as the first case to read, followed by Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850), both addressing the relationship between statutory provision ofjurisdiction and the authority of the federal courts); HOWARD P. FINK, LINDA S. MULLENIX, THOMAS D. ROWE, JR. & MARK TUSHNET, FEDERAL COURTS IN THE 21ST CENTURY: CASES AND MATERIALS 38, 40 (2d ed. 2002) (discussing Marbury in the introduction and reproducing Nixon v. United States, 418 U.S. 683 (1974), about the political question doctrine, as the first case); PETER W. Low & JOHN C. JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 2-8 (4th ed. 1998) (providing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), as the first case); DONALD L. DOERNBERG & C. KEITH WINGATE, FEDERAL COURTS, FEDERALISM AND SEPARATION OF POWERS: CASES AND MATERIALS (2d ed. 2000) (providing Muskrat v. United States, 219 U.S. 346 (1911) as the first case, which raised justiciability questions in the context of a challenge to congressional allotment ofproperty rights ofCherokee citizens). Several constitutional law casebooks also begin with Marbury. See, e.g., KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 5 (14th ed. 2001); JESSE H. CHOPER, RICHARD H. FALLON, JR., YALE KAMISAR, & STEVEN H. SHIFFRIN, CONSTITUTIONAL LAW: CASES--COMMENTS-QUESTIONS 1 (9th ed. 2001); GEOFFREY R. STONE, LOUISE M. SEIDMAN, CASS R. SUNSTEIN, & MARK V. TUSHNET, CONSTITUTIONAL LAW 22 (4th ed. 2001). Others do not. See, e.g., DANIEL A. FARBER, WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD CENTURY 63 (3rd ed. 2003) (beginning with Plessy v. Ferguson, 163 U.S. 537 (1896), as the first case to be read); PAUL BREST, SANFORD LEVINSON, IM. BALKIN, & AKHIL REED AMAR, PROCESSES OF CONSTITUTIONAL DECISIONMAKlNG: CASES AND MATERIALS 17 (4th ed. 2000) (presenting McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819), as the first case to read). See generally Sanford Levinson, Why I Do Not Teach Marbury (Except to Eastern Europeans) and You Shouldn't Either, 38 WAKE FOREST L. REv. 553 (2003). 3. What, in fact, Marbury did, what it held, what it reasoned, and whether it was "right," are the subject of volumes of discourse, many recently prompted by its 200th anniversary. See, e.g., Theodore W. Ruger, "A Question Which Convulses A Nation": The Early Republic's Greatest Debate About the Judicial Review Power, 117 HARV. L. REv. 826 (2004); Louise Weinberg, Our Marbury, 89 VA. L. REv. 1235 (2003); Richard H. Fallon, Jr., Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages ofDoctrinal Tension, 91 CAL. L. REv. 1 (2003); Susan Bloch, The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court?, 18 CONST.
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