1628 124 supreme court reporter 541 u.s. 193 · 1628 124 supreme court reporter 541 u.s. 193 541...

1628 124 SUPREME COURT REPORTER 541 U.S. 193

541 U.S. 193, 158 L.Ed.2d 420

UNITED STATES, Petitioner,

v.

Billy Jo LARA.No. 03–107.

Argued Jan. 21, 2004.

Decided April 19, 2004.

Background: Following denial of his mo-tion to dismiss on basis of prior tribalcourt conviction, defendant, an Indian non-member of the tribe, pleaded guilty in theUnited States District Court for the Dis-trict of North Dakota, Alice R. Senechal,United States Magistrate Judge, to assaulton a federal officer occurring in Indiancountry. Defendant appealed. A panel ofthe United States Court of Appeals for theEighth Circuit affirmed, 294 F.3d 1004. Onrehearing en banc, the Court of Appeals,324 F.3d 635, reversed and remanded withinstructions. Certiorari was granted.

Holdings: The Supreme Court, JusticeBreyer, held that:

(1) source of tribe’s power to prosecuteand punish defendant for violence to apoliceman was inherent tribal sover-eignty rather than delegated federalauthority;

(2) Congress possessed constitutional pow-er to lift or relax restrictions on Indiantribes’ criminal jurisdiction over non-member Indians that political branchesof government had previously imposed;and

(3) the Double Jeopardy Clause could notbar federal prosecution of defendantfor assaulting a federal officer afterIndian tribe’s prosecution and punish-ment of him for violence to a police-man, absent any showing that thesource of the tribal prosecution wasfederal power.

Reversed.

Justice Stevens filed a concurring opinion.

Justices Kennedy and Thomas filed opin-ions concurring in the judgment.

Justice Souter filed a dissenting opinion inwhich Justice Scalia joined.

1. Indians O38(2)Source of Indian tribe’s power to

prosecute and punish Indian, who was nota member of the tribe, for violence to apoliceman, was, in view of federal statutewhich recognized and affirmed in eachtribe the inherent tribal power to prose-cute nonmember Indians for misdemean-ors, inherent tribal sovereignty ratherthan delegated federal authority. CivilRights Act of 1968, § 201(2), as amended,25 U.S.C.A. § 1301(2).

2. Indians O38(2)Congress possessed the power, pursu-

ant to the Indian Commerce Clause andthe Treaty Clause, and as exercised instatute which recognized and affirmed ineach Indian tribe the inherent tribal powerto prosecute nonmember Indians for mis-demeanors, to lift or relax restrictions onIndian tribes’ criminal jurisdiction overnonmember Indians that political branchesof government had previously imposed.U.S.C.A. Const. Art. 1, § 8, cl. 3; U.S.C.A.Const. Art. 2, § 2, cl. 2; Civil Rights Act of1968, § 201(2), as amended, 25 U.S.C.A.§ 1301(2).

3. Treaties O7Treaties made pursuant to the treaty

power can authorize Congress to deal withmatters with which otherwise Congresscould not deal. U.S.C.A. Const. Art. 2,§ 2, cl. 2.

4. Double Jeopardy O183.1Double Jeopardy Clause could not bar

federal prosecution of Indian for assaultinga federal officer after Indian tribe’s prose-cution and punishment of the Indian forviolence to a policeman, absent any show-

1629U.S. v. LARACite as 124 S.Ct. 1628 (2004)

541 U.S. 194

ing that the source of the tribal prosecu-tion was federal power. U.S.C.A. Const.Amend. 5; Civil Rights Act of 1968,§ 201(2), as amended, 25 U.S.C.A.§ 1301(2).

Syllabus *

After respondent Lara, an Indian whois not a member of the Spirit Lake Tribe(Tribe), ignored the Tribe’s order exclud-ing him from its reservation, he struck oneof the federal officers arresting him. Hepleaded guilty in Tribal Court to the crimeof violence to a policeman. The FederalGovernment then charged him with thefederal crime of assaulting a federal offi-cer. Lara claimed that, because key ele-ments of that crime mirrored elements ofhis tribal crime, he was protected by theDouble Jeopardy Clause. The Govern-ment countered that the Clause does notbar successive prosecutions by separatesovereigns, and that this ‘‘dual sovereign-ty’’ doctrine determined the outcome. TheGovernment noted that this Court has heldthat a tribe acts as a separate sovereign inprosecuting its own members, UnitedStates v. Wheeler, 435 U.S. 313, 318, 322–323, 98 S.Ct. 1079, 55 L.Ed.2d 303; that,after this Court ruled that a tribe lackssovereign authority to prosecute nonmem-ber Indians, see Duro v. Reina, 495 U.S.676, 679, 110 S.Ct. 2053, 109 L.Ed.2d 693,Congress specifically authorized such pros-ecutions; and that, because this statuteenlarges the tribes’ self-government pow-ers to include ‘‘the inherent power of Indi-an tribes TTT to exercise criminal jurisdic-tion over all Indians,’’ 25 U.S.C. § 1301(2),the Tribe here had exercised its own tribalauthority, not delegated federal authority.Accepting this argument, the MagistrateJudge rejected Lara’s double jeopardy

claim. The en banc Eighth Circuit re-versed, holding that the ‘‘dual sovereignty’’doctrine did not apply because the TribalCourt was exercising a federal prosecutori-al power, and, thus, the Double JeopardyClause barred the second prosecution.

Held: Because the Tribe acted in itscapacity as a sovereign authority, the Dou-ble Jeopardy Clause does not prohibit theFederal Government from proceeding withthe present prosecution for a discrete fed-eral offense. Pp. 1632–1639.

(a) Congress has the constitutionalpower to lift the restrictions on the tribes’criminal jurisdiction over nonmember Indi-ans. Pp. 1632–1637.

(1) Section 1301(2) ‘‘recognize[s] andaffirm[s]’’ in each tribe the ‘‘inherent pow-er’’ to prosecute nonmember Indians, andits legislative history confirms that suchwas Congress’ intent. Thus, it seeks toadjust the tribes’ status, relaxing restric-tions, recognized in Duro, that theS 194political branches had imposed on thetribes’ exercise of inherent prosecutorialpower. Pp. 1632–1633.

(2) Several considerations lead to theconclusion that Congress has the constitu-tional power to lift these restrictions.First, the Constitution, through the IndianCommerce and Treaty Clauses, grantsCongress ‘‘plenary and exclusive’’ powersto legislate in respect to Indian tribes.E.g., Washington v. Confederated Bandsand Tribes of Yakima Nation, 439 U.S.463, 470–471, 99 S.Ct. 740, 58 L.Ed.2d 740.Second, Congress, with this Court’s ap-proval, has interpreted these plenarygrants of power as authorizing it to enactlegislation that both restricts tribal powersand, in turn, relaxes those restrictions.Third, Congress’ statutory goal—to modifythe degree of autonomy enjoyed by a de-

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


pendent sovereign that is not a State—isnot an unusual legislative objective.Fourth, Lara points to no explicit languagein the Constitution suggesting a limitationon Congress’ institutional authority to re-lax tribal sovereignty restrictions previous-ly imposed by the political branches.Fifth, the change at issue is limited, con-cerning a power similar to the power toprosecute a tribe’s own members, whichthis Court has called inherent. Sixth, con-cluding that Congress has the power torelax the restrictions imposed by the politi-cal branches on the tribes’ inherent prose-cutorial authority is consistent with thisCourt’s earlier cases. The holdings inWheeler, supra, at 326, 98 S.Ct. 1079; Oli-phant v. Suquamish Tribe, 435 U.S. 191,209–210, 98 S.Ct. 1011, 55 L.Ed.2d 209;and Duro, supra, at 686, 110 S.Ct. 2053,that the tribes’ power to prosecute non-members was divested by treaties andCongress, reflected the Court’s view of thetribes’ retained sovereign status at thetime of those decisions; but they did notset forth constitutional limits prohibitingCongress from taking actions to modify oradjust that status. The Court there basedits descriptions of inherent tribal authorityon the sources as they existed at the time.Congressional legislation was one such im-portant source, but it is a source subject tochange. When Duro, supra, at 686, 110S.Ct. 2053, like other cases, referred to astatute that ‘‘delegated’’ power to thetribes, it simply did not consider whether astatute could constitutionally achieve thesame end by removing restrictions on thetribes’ inherent authority. Thus, none ofthose cases can be read to hold that theConstitution forbids Congress to changejudicially made federal Indian law throughan amendment to § 1301(2). Wheeler, Oli-phant, and Duro, then, are not determina-tive because Congress has enacted a newstatute, relaxing restrictions on the bounds

of the inherent tribal authority the UnitedStates recognizes. Pp. 1633–1637.

(b) Lara’s additional arguments can-not help him win his double jeopardyclaim. This Court will not consider themerits of his due process claim that hisprosecution was invalid because the IndianCivil Rights Act of 1968 does not guaran-tee counsel to an indigent criminal de-fendSant.195 Proving that claim does notshow that the source of the tribal prosecu-tion was federal power, something Laramust do to win his double jeopardy claim.Like the due process claim, Lara’s argu-ment that the phrase ‘‘all Indians’’ in ‘‘in-herent power TTT to exercise criminal ju-risdiction over all Indians’’ violates theEqual Protection Clause is beside thepoint. And Lara simply repeats these dueprocess and equal protection arguments ina different form when he argues that theDuro Court found the absence of certainconstitutional safeguards, such as an indi-gent defendant’s right to counsel, an im-portant reason for concluding that tribeslacked the ‘‘inherent power’’ to try non-member Indians. Pp. 1637–1639.

324 F.3d 635, reversed.BREYER, J., delivered the opinion of

the Court, in which REHNQUIST, C. J.,and STEVENS, O’CONNOR, andGINSBURG, JJ., joined. STEVENS, J.,filed a concurring opinion, post, p. 1639.KENNEDY, J., post, p. 1639, andTHOMAS, J., post, p. 1641, filed opinionsconcurring in the judgment. SOUTER, J.,filed a dissenting opinion, in whichSCALIA, J., joined, post, p. 1648.

Edwin S. Kneedler, Washington, DC, forpetitioner.

Alexander F. Reichert, appointed by thisCourt, Grand Forks, ND, for respondent.

James E. Smith, McDermott, Will &Emery, Washington, DC, Alexander F.Reichert, Counsel of Record, Grand Forks,


541 U.S. 197

ND, Ronald A. Reichert, Reichert & Her-auf, Dickinson, ND, Brief of RespondentBilly Jo Lara.

Theodore B. Olson, Solicitor General,Counsel of Record, Christopher A. Wray,Assistant Attorney General, Michael R.Dreeben, Deputy Solicitor General, Bar-bara McDowell, Assistant to the SolicitorGeneral, Richard A. Friedman, Attorney,Department of Justice, Washington, D.C.,for United States.

For U.S. Supreme Court briefs, see:

2003 WL 22811829 (Pet.Brief)

2003 WL 23112950 (Resp.Brief)

2004 WL 69151 (Reply.Brief)

Justice BREYER delivered the opinionof the Court.

S 196This case concerns a congressionalstatute ‘‘recogniz[ing] and affirm[ing]’’ the‘‘inherent’’ authority of a tribe to bring acriminal misdemeanor prosecution againstan Indian who is not a member of thattribe—authority that this Court previouslyheld a tribe did not possess. Compare 25U.S.C. § 1301(2) with Duro v. Reina, 495U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693(1990). We must decide whether Congresshas the constitutional power to relax re-strictions that the political branches have,over time, placed on the exercise of atribe’s inherent legal authority. We con-clude that Congress does possess this pow-er.

I

Respondent Billy Jo Lara is an enrolledmember of the Turtle Mountain Band ofChippewa Indians in north-central NorthDakota. He married a member of a differ-ent tribe, the Spirit Lake Tribe, and livedwith his wife and children on the SpiritLake Reservation, also located in NorthDakota. See Brief for Spirit Lake SiouxTribe of North Dakota et al. as Amici

Curiae 4–5. After several incidents of ser-ious misconduct, the Spirit Lake Tribe is-sued an order excluding him from the res-ervation. Lara ignored the order; federalofficers stopped him; and he struck one ofthe arresting officers. 324 F.3d 635, 636(C.A.8 2003) (en banc).

The Spirit Lake Tribe subsequentlyprosecuted Lara in the Spirit Lake TribalCourt for ‘‘violence to a policeman.’’ Ibid.Lara pleaded guilty and, in respect to thatcrime, served 90 days in jail. See ibid.;Tr. of Oral Arg. 28.

S 197After Lara’s tribal conviction, theFederal Government charged Lara in theFederal District Court for the District ofNorth Dakota with the federal crime ofassaulting a federal officer. 324 F.3d, at636; 18 U.S.C. § 111(a)(1). Key elementsof this federal crime mirror elements ofthe tribal crime of ‘‘violence to a police-man.’’ See Brief for United States 7. Andthis similarity between the two crimeswould ordinarily have brought Lara with-in the protective reach of the Double Jeop-ardy Clause. U.S. Const., Amdt. 5 (theGovernment may not ‘‘subject’’ any person‘‘for the same offence to be twice put injeopardy of life or limb’’); 324 F.3d, at 636.But the Government, responding to Lara’sclaim of double jeopardy, pointed out thatthe Double Jeopardy Clause does not barsuccessive prosecutions brought by sepa-rate sovereigns, and it argued that this‘‘dual sovereignty’’ doctrine determinedthe outcome here. See Heath v. Alabama,474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d387 (1985) (the Double Jeopardy Clausereflects the ‘‘common-law conception ofcrime as an offense against the sovereign-ty of the government’’; when ‘‘a defendantin a single act violates the ‘peace anddignity’ of two sovereigns by breaking thelaws of each, he has committed two dis-tinct ‘offences’ ’’).


The Government noted that this Courthas held that an Indian tribe acts as aseparate sovereign when it prosecutes itsown members. United States v. Wheeler,435 U.S. 313, 318, 322–323, 98 S.Ct. 1079,55 L.Ed.2d 303 (1978) (a tribe’s ‘‘sovereignpower to punish tribal offenders,’’ whilesubject to congressional ‘‘defeasance,’’ re-mains among those ‘‘ ‘inherent powers of alimited sovereignty which has never beenextinguished’ ’’ (emphasis added and delet-ed)). The Government recognized, ofcourse, that Lara is not one of the SpiritLake Tribe’s own members; it also recog-nized that, in Duro v. Reina, supra, thisCourt had held that a tribe no longerpossessed inherent or sovereign authorityto prosecute a ‘‘nonmember Indian.’’ Id.,at 682, 110 S.Ct. 2053. But it pointed outthat, soon after this Court decided Duro,Congress enacted new legislation specifi-cally S 198authorizing a tribe to prosecuteIndian members of a different tribe. SeeAct of Nov. 5, 1990, §§ 8077(b)-(d), 104Stat. 1892–1893 (temporary legislation un-til September 30, 1991); Act of Oct. 28,1991, 105 Stat. 646 (permanent legislation).That new statute, in permitting a tribe tobring certain tribal prosecutions againstnonmember Indians, does not purport todelegate the Federal Government’s ownfederal power. Rather, it enlarges thetribes’ own ‘‘ ‘powers of self-government’ ’’to include ‘‘the inherent power of Indiantribes, hereby recognized and affirmed, toexercise criminal jurisdiction over all Indi-ans,’’ including nonmembers. 25 U.S.C.§ 1301(2) (emphasis added).

In the Government’s view, given thisstatute, the Tribe, in prosecuting Lara,had exercised its own inherent tribal au-thority, not delegated federal authority;hence the ‘‘dual sovereignty’’ doctrine ap-plies, Heath, supra, at 88, 106 S.Ct. 433;and since the two prosecutions werebrought by two different sovereigns, the

second, federal, prosecution does not vio-late the Double Jeopardy Clause.

The Federal Magistrate Judge acceptedthe Government’s argument and rejectedLara’s double jeopardy claim. 324 F.3d, at636–637. An Eighth Circuit panel agreedwith the Magistrate Judge. 294 F.3d 1004(2002). But the en banc Court of Appeals,by a vote of 7 to 4, reached a differentconclusion. 324 F.3d 635 (2003). It heldthe Tribal Court, in prosecuting Lara, wasexercising a federal prosecutorial power;hence the ‘‘dual sovereignty’’ doctrine doesnot apply; and the Double JeopardyClause bars the second prosecution. Id.,at 640. The four dissenting judges, agree-ing with the Federal Government, conclud-ed that the Tribal Court had exercisedinherent tribal power in prosecuting Lara;hence the ‘‘dual sovereignty’’ doctrine ap-plies and allows the second, federal, prose-cution. Id., at 641 (opinion of M. Arnold,J.).

Because the Eighth Circuit and NinthCircuit have reached different conclusionsabout the new statute, we S 199granted cer-tiorari. Cf. United States v. Enas, 255F.3d 662 (C.A.9 2001) (en banc), cert. de-nied, 534 U.S. 1115, 122 S.Ct. 925, 151L.Ed.2d 888 (2002). We now reverse theEighth Circuit.

II[1] We assume, as do the parties, that

Lara’s double jeopardy claim turns on theanswer to the ‘‘dual sovereignty’’ question.What is ‘‘the source of [the] power topunish’’ nonmember Indian offenders, ‘‘in-herent tribal sovereignty’’ or delegatedfederal authority? Wheeler, supra, at 322,98 S.Ct. 1079 (emphasis added).

We also believe that Congress intendedthe former answer. The statute says thatit ‘‘recognize[s] and affirm[s]’’ in each tribethe ‘‘inherent’’ tribal power (not delegatedfederal power) to prosecute nonmemberIndians for misdemeanors. See supra, at


541 U.S. 201

1632; Appendix, infra (emphasis added).And the statute’s legislative history con-firms that such was Congress’ intent. See,e.g., H.R. Conf. Rep. No. 102–261, pp. 3–4(1991), U.S.Code Cong. & Admin.News1991, pp. 370, 379–80 (‘‘The Committee ofthe Conference notes that TTT this legisla-tion is not a delegation of this jurisdictionbut a clarification of the status of tribes asdomestic dependent nations’’); accord,H.R.Rep. No. 102–61, p. 7 (1991), U.S.CodeCong. & Admin.News 1991, pp. 370, 376–77; see also S.Rep. No. 102–168, p. 4(1991) (‘‘recogniz[ing] and reaffirm[ing] theinherent authority of tribal governments toexercise criminal jurisdiction over all Indi-ans’’); 137 Cong. Rec. 9446 (1991) (re-marks of Sen. Inouye) (the ‘‘premise [ofthe legislation] is that the Congress af-firms the inherent jurisdiction of tribalgovernments over nonmember Indians’’(emphasis added)); id., at 10712–10714 (re-marks of Rep. Miller, House manager ofthe bill) (the statute ‘‘is not a delegation ofauthority but an affirmation that tribesretain all rights not expressly taken away’’and the bill ‘‘recognizes an inherent tribalright which always existed’’); id., at 10713(remarks of Rep. Richardson, a sponsor ofthe amendment) (the legislation ‘‘reaf-firms’’ tribes’ power).

[2] S 200Thus the statute seeks to adjustthe tribes’ status. It relaxes the restric-tions, recognized in Duro, that the politi-cal branches had imposed on the tribes’exercise of inherent prosecutorial power.The question before us is whether theConstitution authorizes Congress to do so.Several considerations lead us to the con-clusion that Congress does possess theconstitutional power to lift the restrictionson the tribes’ criminal jurisdiction overnonmember Indians as the statute seeksto do.

First, the Constitution grants Congressbroad general powers to legislate in re-

spect to Indian tribes, powers that we haveconsistently described as ‘‘plenary and ex-clusive.’’ E.g., Washington v. Confederat-ed Bands and Tribes of Yakima Nation,439 U.S. 463, 470–471, 99 S.Ct. 740, 58L.Ed.2d 740 (1979); Negonsott v. Samuels,507 U.S. 99, 103, 113 S.Ct. 1119, 122L.Ed.2d 457 (1993); see Wheeler, 435 U.S.,at 323, 98 S.Ct. 1079; see also W. Canby,American Indian Law 2 (3d ed.1998) (here-inafter Canby) (‘‘[T]he independence of thetribes is subject to exceptionally greatpowers of Congress to regulate and modifythe status of the tribes’’).

This Court has traditionally identifiedthe Indian Commerce Clause, U.S. Const.,Art. I, § 8, cl. 3, and the Treaty Clause,Art. II, § 2, cl. 2, as sources of that power.E.g., Morton v. Mancari, 417 U.S. 535,552, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974);McClanahan v. Arizona Tax Comm’n, 411U.S. 164, 172, n. 7, 93 S.Ct. 1257, 36L.Ed.2d 129 (1973); see also Canby 11–12;F. Cohen, Handbook of Federal IndianLaw 209–210 (1982 ed.) (hereinafter Co-hen) (also mentioning, inter alia, the Prop-erty Clause). The ‘‘central function of theIndian Commerce Clause,’’ we have said,‘‘is to provide Congress with plenary pow-er to legislate in the field of Indian af-fairs.’’ Cotton Petroleum Corp. v. NewMexico, 490 U.S. 163, 192, 109 S.Ct. 1698,104 L.Ed.2d 209 (1989); see also, e.g., Ra-mah Navajo School Bd., Inc. v. Bureau ofRevenue of N. M., 458 U.S. 832, 837, 102S.Ct. 3394, 73 L.Ed.2d 1174 (1982) (‘‘broadpower’’ under the Indian CommerceClause); White Mountain Apache Tribe v.Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578,65 L.Ed.2d 665 (1980) (same, and citingWheeler, supra, at 322–323, 98 S.Ct. 1079).

[3] S 201The treaty power does not liter-ally authorize Congress to act legislatively,for it is an Article II power authorizing thePresident, not Congress, ‘‘to make Trea-ties.’’ U.S. Const., Art. II, § 2, cl. 2. But,


as Justice Holmes pointed out, treatiesmade pursuant to that power can authorizeCongress to deal with ‘‘matters’’ withwhich otherwise ‘‘Congress could notdeal.’’ Missouri v. Holland, 252 U.S. 416,433, 40 S.Ct. 382, 64 L.Ed. 641 (1920); seealso L. Henkin, Foreign Affairs and theU.S. Constitution 72 (2d ed.1996). And formuch of the Nation’s history, treaties, andlegislation made pursuant to those treaties,governed relations between the FederalGovernment and the Indian tribes. See,e.g., Cohen 109–111; F. Prucha, AmericanIndian Policy in the Formative Years 44–49 (1962).

We recognize that in 1871 Congress end-ed the practice of entering into treatieswith the Indian tribes. 25 U.S.C. § 71(stating that tribes are not entities ‘‘withwhom the United States may contract bytreaty’’). But the statute saved existingtreaties from being ‘‘invalidated or im-paired,’’ ibid., and this Court has explicitlystated that the statute ‘‘in no way affectedCongress’ plenary powers to legislate onproblems of Indians,’’ Antoine v. Washing-ton, 420 U.S. 194, 203, 95 S.Ct. 944, 43L.Ed.2d 129 (1975) (emphasis deleted).

Moreover, ‘‘at least during the first cen-tury of America’s national existence TTT

Indian affairs were more an aspect of mili-tary and foreign policy than a subject ofdomestic or municipal law.’’ Cohen 208(footnotes omitted). Insofar as that is so,Congress’ legislative authority would restin part, not upon ‘‘affirmative grants of theConstitution,’’ but upon the Constitution’sadoption of preconstitutional powers neces-sarily inherent in any Federal Govern-ment, namely, powers that this Court hasdescribed as ‘‘necessary concomitants ofnationality.’’ United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 315–322, 57 S.Ct. 216, 81 L.Ed. 255 (1936);Henkin, supra, at 14–22, 63–72; cf. 2 J.Continental Cong. 174–175 (1775) (W. Ford

ed.1905) (creating departments of Indianaffairs, appointing Indian commissioners,and noting the great importance of ‘‘seScur-ing202 and preserving the friendship of theIndian Nations’’); Worcester v. Georgia, 6Pet. 515, 557, 8 L.Ed. 483 (1832) (‘‘Thetreaties and laws of the United Statescontemplate TTT that all intercourse with[Indians] shall be carried on exclusively bythe government of the union’’).

Second, Congress, with this Court’s ap-proval, has interpreted the Constitution’s‘‘plenary’’ grants of power as authorizing itto enact legislation that both restricts and,in turn, relaxes those restrictions on tribalsovereign authority. From the Nation’sbeginning Congress’ need for such legisla-tive power would have seemed obvious.After all, the Government’s Indian policies,applicable to numerous tribes with diversecultures, affecting billions of acres of land,of necessity would fluctuate dramaticallyas the needs of the Nation and those of thetribes changed over time. See, e.g., Cohen48. And Congress has in fact authorizedat different times very different Indianpolicies (some with beneficial results butmany with tragic consequences). Con-gressional policy, for example, initially fa-vored ‘‘Indian removal,’’ then ‘‘assimila-tion’’ and the breakup of tribal lands, thenprotection of the tribal land base (inter-rupted by a movement toward greaterstate involvement and ‘‘termination’’ ofrecognized tribes); and it now seeks great-er tribal autonomy within the frameworkof a ‘‘government-to-government relation-ship’’ with federal agencies. 59 Fed.Reg.22951 (1994); see also 19 Weekly Comp. ofPres. Doc. 98 (1983) (President Reaganreaffirming the rejection of termination asa policy and announcing the goal of de-creasing tribal dependence on the FederalGovernment); see 25 U.S.C. § 450a(b)(congressional commitment to ‘‘the devel-opment of strong and stable tribal govern-ments’’). See generally, Cohen 78–202


541 U.S. 204

(describing this history); Canby 13–32(same).

Such major policy changes inevitably in-volve major changes in the metes andbounds of tribal sovereignty. The 1871statute, for example, changed the status ofan Indian tribe from a ‘‘powe[r] TTT capa-ble of making treaties’’ to a S 203‘‘power withwhom the United States may [not] con-tract by treaty.’’ Compare Worcester, su-pra, at 559, with 25 U.S.C. § 71.

One can readily find examples in con-gressional decisions to recognize, or to ter-minate, the existence of individual tribes.See United States v. Holliday, 3 Wall. 407,419, 18 L.Ed. 182 (1866) (‘‘If by [the politi-cal branches] those Indians are recognizedas a tribe, this court must do the same’’);Menominee Tribe v. United States, 391U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697(1968) (examining the rights of MenomineeIndians following the termination of theirTribe). Indeed, Congress has restoredpreviously extinguished tribal status—byre-recognizing a Tribe whose tribal exis-tence it previously had terminated. 25U.S.C. §§ 903–903f (restoring the Menomi-nee Tribe); cf. United States v. Long, 324F.3d 475 (CA7) (upholding against doublejeopardy challenge successive prosecutionsby the restored Menominee Tribe and theFederal Government), cert. denied, 540U.S. 822, 124 S.Ct. 151, 157 L.Ed.2d 42(2003). Congress has advanced policies ofintegration by conferring United Statescitizenship upon all Indians. 8 U.S.C.§ 1401(b). Congress has also grantedtribes greater autonomy in their inherentlaw enforcement authority (in respect totribal members) by increasing the maxi-mum criminal penalties tribal courts mayimpose. § 4217, 100 Stat. 3207–146, codi-fied at 25 U.S.C. § 1302(7) (raising themaximum from ‘‘a term of six months anda fine of $500’’ to ‘‘a term of one year and afine of $5,000’’).

Third, Congress’ statutory goal—tomodify the degree of autonomy enjoyed bya dependent sovereign that is not aState—is not an unusual legislative objec-tive. The political branches, drawing uponanalogous constitutional authority, havemade adjustments to the autonomous sta-tus of other such dependent entities—sometimes making far more radical adjust-ments than those at issue here. See, e.g.,Hawaii—Hawaii v. Mankichi, 190 U.S.197, 209–211, 23 S.Ct. 787, 47 L.Ed. 1016(1903) (describing annexation of Hawaii byjoint resolution of Congress and the main-tenance of a ‘‘Republic of Hawaii’’ untilformal incorpoSration204 by Congress);Northern Mariana Islands—note following48 U.S.C. § 1801 (‘‘in accordance with the[United Nations] trusteeship agreementTTT [establishing] a self-governing com-monwealth TTT in political union with andunder the sovereignty of the UnitedStates’’); the Philippines—22 U.S.C.§ 1394 (congressional authorization for thePresident to ‘‘withdraw and surrender allright of TTT sovereignty’’ and to ‘‘recognizethe independence of the Philippine Islandsas a separate and self-governing nation’’);Presidential Proclamation No. 2695, 60Stat. 1352 (so proclaiming); Puerto Rico—Act of July 3, 1950, 64 Stat. 319 (‘‘[T]hisAct is now adopted in the nature of acompact so that people of Puerto Rico mayorganize a government pursuant to a con-stitution of their own adoption’’); P.R.Const., Art. I, § 1 (‘‘Estado Libre Asocia-do de Puerto Rico’’); see also Cordova &Simonpietri Ins. Agency Inc. v. ChaseManhattan Bank N. A., 649 F.2d 36, 39–41(C.A.1 1981) (describing various adjust-ments to Puerto Rican autonomy throughcongressional legislation since 1898).

Fourth, Lara points to no explicit lan-guage in the Constitution suggesting a lim-itation on Congress’ institutional authorityto relax restrictions on tribal sovereignty


previously imposed by the political branch-es. But cf. Part III, infra.

Fifth, the change at issue here is alimited one. It concerns a power similarin some respects to the power to prosecutea tribe’s own members—a power that thisCourt has called ‘‘inherent.’’ Wheeler, 435U.S., at 322–323, 98 S.Ct. 1079. In largepart it concerns a tribe’s authority to con-trol events that occur upon the tribe’s ownland. See United States v. Mazurie, 419U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706(1975) (‘‘Indian tribes are unique aggrega-tions possessing attributes of sovereigntyover both their members and their territo-ry’’ (emphasis added)); see also, e.g.,S.Rep. No. 102–168, at 21 (remarks of P.Hugent). And the tribes’ possession ofthis additional criminal jurisdiction is con-sistent with our traditional understandingof the tribes’ status as ‘‘domestic depen-dent nations.’’ CheroSkee205 Nation v.Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831);see also id., at 16 (describing tribe as ‘‘adistinct political society, separated fromothers, capable of managing its own affairsand governing itself’’). Consequently, weare not now faced with a question dealingwith potential constitutional limits on con-gressional efforts to legislate far more rad-ical changes in tribal status. In particular,this case involves no interference with thepower or authority of any State. Nor dowe now consider the question whether theConstitution’s Due Process or Equal Pro-tection Clauses prohibit tribes from prose-cuting a nonmember citizen of the UnitedStates. See Part III, infra.

Sixth, our conclusion that Congress hasthe power to relax the restrictions imposedby the political branches on the tribes’inherent prosecutorial authority is consis-tent with our earlier cases. True, theCourt held in those cases that the power toprosecute nonmembers was an aspect ofthe tribes’ external relations and hence

part of the tribal sovereignty that wasdivested by treaties and by Congress.Wheeler, supra, at 326, 98 S.Ct. 1079; Oli-phant v. Suquamish Tribe, 435 U.S. 191,209–210, 98 S.Ct. 1011, 55 L.Ed.2d 209(1978); Duro, 495 U.S., at 686, 110 S.Ct.2053. But these holdings reflect theCourt’s view of the tribes’ retained sover-eign status as of the time the Court madethem. They did not set forth constitution-al limits that prohibit Congress fromchanging the relevant legal circumstances,i.e., from taking actions that modify oradjust the tribes’ status.

To the contrary, Oliphant and Duromake clear that the Constitution does notdictate the metes and bounds of tribalautonomy, nor do they suggest that theCourt should second-guess the politicalbranches’ own determinations. In Oli-phant, the Court rested its conclusionabout inherent tribal authority to prose-cute tribe members in large part upon ‘‘thecommonly shared presumption of Con-gress, the Executive Branch, and lowerfederal courts,’’ a presumption which,‘‘[w]hile not conclusive[,] carries considera-ble weight.’’ 435 U.S., at 206, 98 S.Ct.1011. The Court pointed out thatS 206‘‘ ‘Indian law’ draws principally upon thetreaties drawn and executed by the Execu-tive Branch and legislation passed by Con-gress.’’ Ibid. (emphasis added). It addedthat those ‘‘instruments TTT form the back-drop for the intricate web of judiciallymade Indian law.’’ Ibid. (emphasis add-ed).

Similarly, in Duro, the Court drew upona host of different sources in order toreach its conclusion that a tribe does notpossess the inherent power to prosecute anonmember. The Court referred to his-toric practices, the views of experts, theexperience of forerunners of modern tribalcourts, and the published opinions of theSolicitor of the Department of the Interior.


541 U.S. 207

495 U.S., at 689–692, 110 S.Ct. 2053. Seealso, e.g., Nevada v. Hicks, 533 U.S. 353,361, n. 4, 121 S.Ct. 2304, 150 L.Ed.2d 398(2001) (‘‘Our holding in Worcester must beconsidered in light of TTT the 1828 treaty’’(alterations and internal quotation marksomitted)); South Dakota v. Bourland, 508U.S. 679, 695, 113 S.Ct. 2309, 124 L.Ed.2d606 (1993) (‘‘Having concluded that Con-gress clearly abrogated the Tribe’s pre-existing regulatory control over non-Indianhunting and fishing, we find no evidence inthe relevant treaties or statutes that Con-gress intended to allow the Tribes to as-sert regulatory jurisdiction over theselands pursuant to inherent sovereignty’’(emphasis added)); National Farmers Un-ion Ins. Cos. v. Crow Tribe, 471 U.S. 845,855–856, 105 S.Ct. 2447, 85 L.Ed.2d 818(1985) (‘‘[T]he existence and extent of atribal court’s jurisdiction will require [in-ter alia] a detailed study of relevant stat-utes, Executive Branch policy as embodiedin treaties and elsewhere, and administra-tive or judicial decisions’’); United Statesv. Kagama, 118 U.S. 375, 382–383, 6 S.Ct.1109, 30 L.Ed. 228 (1886) (characterizingEx parte Crow Dog, 109 U.S. 556, 570, 3S.Ct. 396, 27 L.Ed. 1030 (1883), as restingon extant treaties and statutes and recog-nizing congressional overruling of CrowDog).

Thus, the Court in these cases based itsdescriptions of inherent tribal authorityupon the sources as they existed at thetime the Court issued its decisions. Con-gressional legislation constituted one suchimportant source. And that source wassubject to change. Indeed Duro itself an-ticiSpated207 change by inviting interestedparties to ‘‘address the problem [to] Con-gress.’’ 495 U.S., at 698, 110 S.Ct. 2053.

We concede that Duro, like several oth-er cases, referred only to the need toobtain a congressional statute that ‘‘dele-gated’’ power to the tribes. See id., at 686,110 S.Ct. 2053 (emphasis added); Bour-

land, supra, at 695, n. 15, 113 S.Ct. 2309;Montana v. United States, 450 U.S. 544,564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981);Mazurie, 419 U.S., at 556–557, 95 S.Ct.710. But in so stating, Duro (like theother cases) simply did not considerwhether a statute, like the present one,could constitutionally achieve the same endby removing restrictions on the tribes’ in-herent authority. Consequently we do notread any of these cases as holding that theConstitution forbids Congress to change‘‘judicially made’’ federal Indian lawthrough this kind of legislation. Oliphant,supra, at 206, 98 S.Ct. 1011; cf. Countyof Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 233–237, 105 S.Ct. 1245,84 L.Ed.2d 169 (1985) (recognizing the‘‘federal common law’’ component of Indianrights, which ‘‘common law’’ federal courtsdevelop as ‘‘a ‘necessary expedient’ whenCongress has not ‘spoken to a particularissue’ ’’ (quoting Milwaukee v. Illinois, 451U.S. 304, 313–315, 101 S.Ct. 1784, 68L.Ed.2d 114 (1981))); id., at 313, 101 S.Ct.1784 (‘‘[F]ederal common law is ‘subject tothe paramount authority of Congress’ ’’(quoting New Jersey v. New York, 283U.S. 336, 348, 51 S.Ct. 478, 75 L.Ed. 1104(1931))).

Wheeler, Oliphant, and Duro, then, arenot determinative because Congress hasenacted a new statute, relaxing restrictionson the bounds of the inherent tribal au-thority that the United States recognizes.And that fact makes all the difference.

III

Lara makes several additional argu-ments. First, he points out that the Indi-an Civil Rights Act of 1968, 82 Stat. 77,lacks certain constitutional protections forcriminal defendants, in particular the rightof an indigent defendant to counsel. See25 U.S.C. § 1302. And he argues that theDue Process Clause forbids Congress topermit a tribe to prosecute a nonmember


Indian citizen of the United States S 208in aforum that lacks this protection. See Ar-gersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.2006, 32 L.Ed.2d 530 (1972) (Constitutionguarantees indigents counsel where im-prisonment possible).

Lara’s due process argument, however,suffers from a critical structural defect.To explain the defect, we contrast thisargument with Lara’s ‘‘lack of constitution-al power’’ argument discussed in Part II,supra. Insofar as that ‘‘constitutionalpower’’ argument might help Lara win hisdouble jeopardy claim, it must proceed infour steps:

Step One: Congress does not possessthe constitutional power to enact a statutethat modifies tribal power by ‘‘recog-niz[ing] and affirm[ing]’’ the tribes’ ‘‘inher-ent’’ authority to prosecute nonmember In-dians. 25 U.S.C. § 1301(2).

Step Two: Consequently, the word ‘‘in-herent’’ in the statute’s phrase ‘‘inherentpower’’ is void.

Step Three: The word ‘‘inherent’’ is sev-erable from the rest of the statute (as arerelated words). The remainder of thestatute is valid without those words, but itthen delegates federal power to the tribeto conduct the prosecution.

Step Four: Consequently, the Tribe’sprosecution of Lara was federal. The cur-rent, second, prosecution is also federal.Hence Lara wins his Double JeopardyClause claim, the subject of the presentproceeding.

Although the Eighth Circuit acceptedthis argument, 324 F.3d, at 640, we rejectStep One of the argument, Part II, supra.That rejection, without more, invalidatesthe argument.

[4] Lara’s due process argument, how-ever, is significantly different. That argu-ment (if valid) would show that any prose-cution of a nonmember Indian under the

statute is invalid; so Lara’s tribal prosecu-tion would be invalid, too. Showing Lara’stribal prosecution was invalid, however,does not show that the source of that tribalprosecution was federal power (showingthat a state prosecution violated the DueProcess Clause does not make that prose-cution federal). S 209But without that ‘‘fed-eral power’’ showing, Lara cannot win hisdouble jeopardy claim here. Hence, weneed not, and we shall not, consider themerits of Lara’s due process claim. Otherdefendants in tribal proceedings remainfree to raise that claim should they wish todo so. See 25 U.S.C. § 1303 (vesting dis-trict courts with jurisdiction over habeaswrits from tribal courts).

Second, Lara argues that Congress’ useof the words ‘‘all Indians,’’ in the statutoryphrase ‘‘inherent power TTT to exercisecriminal jurisdiction over all Indians,’’ vio-lates the Equal Protection Clause. Hesays that insofar as the words include non-member Indians within the statute’s scope(while excluding all non-Indians) the stat-ute is race based and without justification.Like the due process argument, however,this equal protection argument is simplybeside the point, therefore we do not ad-dress it. At best for Lara, the argument(if valid) would show, not that Lara’s firstconviction was federal, but that it wasconstitutionally defective. And that show-ing cannot help Lara win his double jeop-ardy claim.

Third, Lara points out that the DuroCourt found the absence of certain consti-tutional safeguards, for example, the guar-antee of an indigent’s right to counsel, asan important reason for concluding thattribes lacked the ‘‘inherent power’’ to try a‘‘group of citizens’’ (namely, nonmemberIndians) who were not ‘‘include[d]’’ inthose ‘‘political bodies.’’ 495 U.S., at 693–694, 110 S.Ct. 2053. In fact, Duro says


541 U.S. 211

the following: ‘‘We hesitate to adopt aview of tribal sovereignty that would sin-gle out another group of citizens, nonmem-ber Indians, for trial by political bodiesthat do not include them.’’ Id., at 693, 110S.Ct. 2053. But this argument simply re-peats the due process and equal protectionarguments rejected above in a somewhatdifferent form. Since precisely the sameproblem would exist were we to treat thecongressional statute as delegating federalpower, this argument helps Lara no morethan the others.

S 210IV

For these reasons, we hold, with thereservations set forth in Part III, supra,that the Constitution authorizes Congressto permit tribes, as an exercise of theirinherent tribal authority, to prosecute non-member Indians. We hold that Congressexercised that authority in writing thisstatute. That being so, the Spirit LakeTribe’s prosecution of Lara did not amountto an exercise of federal power, and theTribe acted in its capacity of a separatesovereign. Consequently, the DoubleJeopardy Clause does not prohibit theFederal Government from proceeding withthe present prosecution for a discrete fed-eral offense. Heath, 474 U.S., at 88, 106S.Ct. 433.

The contrary judgment of the EighthCircuit is

Reversed.

APPENDIX TO OPINIONOF THE COURT

Title 25 U.S.C. § 1301(2), as amendedby Act of Oct. 28, 1991, 105 Stat. 646,provides:

‘‘ ‘[P]owers of self-government’ meansand includes all governmental powers pos-sessed by an Indian tribe, executive, legis-lative, and judicial, and all offices, bodies,and tribunals by and through which they

are executed, including courts of Indianoffenses; and means the inherent power ofIndian tribes, hereby recognized and af-firmed, to exercise criminal jurisdictionover all Indians.’’

Justice STEVENS, concurring.

While I join the Court’s opinion withoutreservation, the additional writing by mycolleagues prompts this comment. The in-herent sovereignty of the Indian tribes hasa historical basis that merits special men-tion. They governed territory on this con-tinent long before Columbus arrived. Incontrast, most of the States were neveractually independent sovereigns, and thosethat were enjoyed that independentS 211status for only a few years. Given thefact that Congress can authorize theStates to exercise—as their own—inherentpowers that the Constitution has otherwiseplaced off limits, see, e.g., Prudential Ins.Co. v. Benjamin, 328 U.S. 408, 437–438, 66S.Ct. 1142, 90 L.Ed. 1342 (1946), I findnothing exceptional in the conclusion thatit can also relax restrictions on an ancientinherent tribal power.

Justice KENNEDY, concurring in thejudgment.

The amendment to the Indian CivilRights Act of 1968 (ICRA) enacted afterthe Court’s decision in Duro v. Reina, 495U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693(1990), demonstrates Congress’ clear in-tention to restore to the tribes an inherentsovereign power to prosecute nonmemberIndians. Congress was careful to rely onthe theory of inherent sovereignty, and noton a delegation. Justice SOUTER’S posi-tion that it was a delegation nonetheless,post, at 1651 (dissenting opinion), is by nomeans without support, but I would takeCongress at its word. Under that view,the first prosecution of Lara was not adelegated federal prosecution, and his dou-


ble jeopardy argument must fail. That isall we need say to resolve this case.

The Court’s analysis goes beyond thisnarrower rationale and culminates in asurprising holding: ‘‘For these reasons, wehold TTT that the Constitution authorizesCongress to permit tribes, as an exerciseof their inherent tribal authority, to prose-cute nonmember Indians.’’ Ante, at 1639.The Court’s holding is on a point of majorsignificance to our understanding and in-terpretation of the Constitution; and, inmy respectful view, it is most doubtful.

Were we called upon to decide whetherCongress has this power, it would be adifficult question. Our decision in UnitedStates v. Wheeler, 435 U.S. 313, 98 S.Ct.1079, 55 L.Ed.2d 303 (1978), which theCourt cites today but discusses very little,is replete with references to the inherentauthority of the tribe over its own mem-bers. As I read that case, it is the historicpossession of inherent power over ‘‘therelations among members of a S 212tribe’’that is the whole justification for the limit-ed tribal sovereignty the Court there rec-ognized. Id., at 326, 98 S.Ct. 1079. It is amost troubling proposition to say thatCongress can relax the restrictions on in-herent tribal sovereignty in a way thatextends that sovereignty beyond those his-torical limits. Cf., e.g., Strate v. A–1 Con-tractors, 520 U.S. 438, 445–446, 117 S.Ct.1404, 137 L.Ed.2d 661 (1997) (‘‘In the mainTTT ‘the inherent sovereign powers of anIndian tribe’—those powers a tribe enjoysapart from express provision by treaty orstatute—‘do not extend to the activities ofnonmembers of the tribe’ ’’ (quoting Mon-tana v. United States, 450 U.S. 544, 565,101 S.Ct. 1245, 67 L.Ed.2d 493 (1981))).To conclude that a tribe’s inherent sover-eignty allows it to exercise jurisdictionover a nonmember in a criminal case is toenlarge the ‘‘unique and limited character’’

of the inherent sovereignty that Wheelerrecognized. 435 U.S., at 323, 98 S.Ct.1079.

Lara, after all, is a citizen of the Unit-ed States. To hold that Congress cansubject him, within our domestic borders,to a sovereignty outside the basic struc-ture of the Constitution is a serious step.The Constitution is based on a theory oforiginal, and continuing, consent of thegoverned. Their consent depends on theunderstanding that the Constitution hasestablished the federal structure, whichgrants the citizen the protection of twogovernments, the Nation and the State.Each sovereign must respect the propersphere of the other, for the citizen hasrights and duties as to both. See U.S.Term Limits, Inc. v. Thornton, 514 U.S.779, 838–839, 115 S.Ct. 1842, 131 L.Ed.2d881 (1995) (KENNEDY, J., concurring).Here, contrary to this design, the Nation-al Government seeks to subject a citizento the criminal jurisdiction of a third enti-ty to be tried for conduct occurring whol-ly within the territorial borders of theNation and one of the States. This is un-precedented. There is a historical excep-tion for Indian tribes, but only to thelimited extent that a member of a tribeconsents to be subjected to the jurisdic-tion of his own tribe. See Duro, supra,at 693, 110 S.Ct. 2053. The majority to-day reaches beyond that limited excep-tion.

S 213The Court resolves, or perhapsavoids, the basic question of the power ofthe Government to yield authority insidethe domestic borders over citizens to athird sovereign by using the euphemisticformulation that in amending the ICRACongress merely relaxed restrictions onthe tribes. See ante, at 1631, 1633, 1634,1636, and 1637. There is no language inthe statute, or the legislative history, thatjustifies this unusual phrase, cf. 25 U.S.C.


541 U.S. 214

§ 1301(2) (referring to ‘‘the inherent pow-er of Indian tribes, hereby recognized andaffirmed, to exercise criminal jurisdictionover all Indians’’); and, in my respectfulview, it obscures what is actually at stakein this case. The terms of the statute arebest understood as a grant or cession fromCongress to the tribes, and it should notbe doubted that what Congress has at-tempted to do is subject American citizensto the authority of an extraconstitutionalsovereign to which they had not previouslybeen subject. The relaxing-restrictionsformulation is further belied by the in-volvement of the United States in all as-pects of the tribal prosecution of a non-member Indian. Federal law defines theseparate tribes, § 1301, the broader classof ‘‘Indians,’’ the maximum penalty whichthe tribes may impose for crimes, and theprocedural protections to which defendantsare entitled in the trials, § 1302. Thisdoes not indicate the sort of detachmentfrom the exercise of prosecutorial authori-ty implicit in the description of Congress’Act as having relaxed restrictions.

In addition to trying to evade the impor-tant structural question by relying on theverbal formula of relaxation, the Courtalso tries to bolster its position by notingthat due process and equal protectionclaims are still reserved. Ante, at 1639.That is true, but it ignores the elementaryprinciple that the constitutional structurewas in place before the Fifth and Four-teenth Amendments were adopted. To de-mean the constitutional structure and theconsent upon which it rests by implyingthey are wholly dependent for their vindi-cation on the Due Process and Equal Pro-tection S 214Clauses is a further, unreasonedholding of serious import. The politicalfreedom guaranteed to citizens by the fed-eral structure is a liberty both distinctfrom and every bit as important as thosefreedoms guaranteed by the Bill of Rights.

Cf. Clinton v. City of New York, 524 U.S.417, 449–453, 118 S.Ct. 2091, 141 L.Ed.2d393 (1998) (KENNEDY, J., concurring).The individual citizen has an enforceableright to those structural guarantees of lib-erty, a right which the majority ignores.Perhaps the Court’s holding could be justi-fied by an argument that by enrolling inone tribe Lara consented to the criminaljurisdiction of other tribes, but the Courtdoes not mention the point. And, in allevents, we should be cautious about adopt-ing that fiction.

The present case, however, does not re-quire us to address these difficult ques-tions of constitutional dimension. Con-gress made it clear that its intent was torecognize and affirm tribal authority to tryIndian nonmembers as inherent in tribalstatus. The proper occasion to test thelegitimacy of the Tribe’s authority, that is,whether Congress had the power to dowhat it sought to do, was in the first, tribalproceeding. There, however, Lara madeno objection to the Tribe’s authority to tryhim. In the second, federal proceeding,because the express rationale for theTribe’s authority to try Lara—whether le-gitimate or not—was inherent sovereignty,not delegated federal power, there can beno double jeopardy violation. Cf. Graftonv. United States, 206 U.S. 333, 345, 27S.Ct. 749, 51 L.Ed. 1084 (1907) (‘‘[B]efore aperson can be said to have been put injeopardy of life or limb the court in whichhe was acquitted or convicted must havehad jurisdiction to try him for the offensecharged’’). For that reason, I concur inthe judgment.

Justice THOMAS, concurring in thejudgment.

As this case should make clear, the timehas come to reexamine the premises andlogic of our tribal sovereignty cases. Itseems to me that much of the confusion


reflected S 215in our precedent arises fromtwo largely incompatible and doubtful as-sumptions. First, Congress (rather thansome other part of the Federal Govern-ment) can regulate virtually every aspectof the tribes without rendering tribal sov-ereignty a nullity. See, e.g., United Statesv. Wheeler, 435 U.S. 313, 319, 98 S.Ct.1079, 55 L.Ed.2d 303 (1978). Second, theIndian tribes retain inherent sovereigntyto enforce their criminal laws against theirown members. See, e.g., id., at 326, 98S.Ct. 1079. These assumptions, which Imust accept as the case comes to us, dic-tate the outcome in this case, and I there-fore concur in the judgment.

I write separately principally becausethe Court fails to confront these tensions,a result that flows from the Court’s inade-quate constitutional analysis. I cannotagree with the Court, for instance, that theConstitution grants to Congress plenarypower to calibrate the ‘‘metes and boundsof tribal sovereignty.’’ Ante, at 1635; seealso ante, at 1639 (holding that ‘‘the Con-stitution authorizes Congress’’ to regulatetribal sovereignty). Unlike the Court,ante, at 1633, I cannot locate such congres-sional authority in the Treaty Clause, U.S.Const., Art. II, § 2, cl. 2, or the IndianCommerce Clause, Art. I, § 8, cl. 3. Addi-tionally, I would ascribe much more signif-icance to legislation such as the Act ofMar. 3, 1871, Rev. Stat. § 2079, 16 Stat.566, codified at 25 U.S.C. § 71, that pur-ports to terminate the practice of dealingwith Indian tribes by treaty. The makingof treaties, after all, is the one mechanismthat the Constitution clearly provides forthe Federal Government to interact withsovereigns other than the States. Yet, if Iaccept that Congress does have this au-thority, I believe that the result in Wheeleris questionable. In my view, the tribeseither are or are not separate sovereigns,

and our federal Indian law cases untenablyhold both positions simultaneously.

I

In response to the Court’s decision inDuro v. Reina, 495 U.S. 676, 110 S.Ct.2053, 109 L.Ed.2d 693 (1990) (holding thatthe tribes lack inherent authorSity216 toprosecute nonmember Indians), Congressamended the Indian Civil Rights Act of1968 (ICRA). Specifically, through this‘‘Duro fix,’’ Congress amended ICRA’sdefinition of the tribes’ ‘‘powers of self-government’’ to ‘‘recogniz[e] and affir[m]’’the existence of ‘‘inherent power TTT toexercise criminal jurisdiction over all Indi-ans.’’ 25 U.S.C. § 1301(2). There is quitesimply no way to interpret a recognitionand affirmation of inherent power as adelegation of federal power, as the Courtexplains. Ante, at 1632–1633. Delegatedpower is the very antithesis of inherentpower.

But even if the statute were less clear, Iwould not interpret it as a delegation offederal power. The power to bring federalprosecutions, which is part of the putativedelegated power, is manifestly and quin-tessentially executive power. Morrison v.Olson, 487 U.S. 654, 691, 108 S.Ct. 2597,101 L.Ed.2d 569 (1988); id., at 705, 108S.Ct. 2597 (SCALIA, J., dissenting). Con-gress cannot transfer federal executivepower to individuals who are beyond‘‘meaningful Presidential control.’’ Printzv. United States, 521 U.S. 898, 922–923,117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).And this means that, at a minimum, thePresident must have some measure of ‘‘thepower to appoint and remove’’ those exer-cising that power. Id., at 922, 117 S.Ct.2365; see also Morrison, supra, at 706–715, 108 S.Ct. 2597 (SCALIA, J., dissent-ing).

It does not appear that the Presidenthas any control over tribal officials, let


541 U.S. 218

alone a substantial measure of the appoint-ment and removal power. Cf. Brief forNational Congress of American Indians asAmicus Curiae 27–29. Thus, at least untilwe are prepared to recognize absolutelyindependent agencies entirely outside ofthe Executive Branch with the power tobind the Executive Branch (for a tribalprosecution would then bar a subsequentfederal prosecution), the tribes cannot beanalogized to administrative agencies, asthe dissent suggests, post, at 1649 (opinionof SOUTER, J.). That is, reading the‘‘Duro fix’’ as a delegation of federal power(without also divining some adequatemethod of Presidential control) would cre-ate grave constitutional difficulties. Cf.INS v. St. Cyr, 533 U.S. 289, 299–300, 121S.Ct. 2271, 150 L.Ed.2d 347 (2001); SolidWaste S 217Agency of Northern Cook Cty. v.Army Corps of Engineers, 531 U.S. 159,173, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001).Accordingly, the Court has only two op-tions: Either the ‘‘Duro fix’’ changed theresult in Duro or it did nothing at all.1

II

In Wheeler, 435 U.S., at 322–323, 98S.Ct. 1079, the Court explained that, priorto colonization, ‘‘the tribes were self-gov-erning sovereign political communities.’’The Court acknowledged, however, that,after ‘‘[t]heir incorporation within the ter-

ritory of the United States,’’ the tribescould exercise their inherent sovereigntyonly as consistent with federal policy em-bodied in treaties, statutes, and ExecutiveOrders. Id., at 323, 98 S.Ct. 1079; seealso id., at 327–328, 98 S.Ct. 1079. Exam-ining these sources for potential conflict,the Court concluded that the tribes re-tained the ability to exercise their inherentsovereignty to punish their own members.Id., at 323–330, 98 S.Ct. 1079.

Although Wheeler seems to be a sensibleexample of federal common lawmaking, Iam not convinced that it was correctlydecided. To be sure, it makes sense toconceptualize S 218the tribes as sovereignsthat, due to their unique situation, cannotexercise the full measure of their sover-eign powers. Wheeler, at times, seems toanalyze the problem in just this way. See,e.g., id., at 323–326, 98 S.Ct. 1079; id., at323, 98 S.Ct. 1079 (relying on Oliphant v.Suquamish Tribe, 435 U.S. 191, 98 S.Ct.1011, 55 L.Ed.2d 209 (1978), discussed in-fra).

But I do not see how this is consistentwith the apparently ‘‘undisputed fact thatCongress has plenary authority to legislatefor the Indian tribes in all matters, includ-ing their form of government.’’ 435 U.S.,at 319, 98 S.Ct. 1079. The sovereign is, bydefinition, the entity ‘‘in which independent

1. I am sympathetic to Justice KENNEDY’sposition that we need not resolve the questionpresented. Ante, at 1640 (opinion concurringin judgment). If Congress has power to re-store tribal authority to prosecute nonmem-ber Indians, respondent’s tribal prosecutionwas the legitimate exercise of a separate sov-ereign. As such, under the dual sovereigntydoctrine, it does not bar his subsequent feder-al prosecution. On the other hand, if theamendment to ICRA had no effect (the onlyother possibility), jeopardy did not attach inthe tribal prosecution. See, e.g., Serfass v.United States, 420 U.S. 377, 391, 95 S.Ct.1055, 43 L.Ed.2d 265 (1975); Grafton v. Unit-ed States, 206 U.S. 333, 345, 27 S.Ct. 749, 51

L.Ed. 1084 (1907) (noting ‘‘that before a per-son can be said to have been put in jeopardyof life or limb the court in which he wasacquitted or convicted must have had juris-diction to try him for the offense charged’’);United States v. Phelps, 168 F.3d 1048, 1053–1054 (C.A.8 1999) (holding tribal court prose-cution without jurisdiction did not bar subse-quent federal prosecution). Jeopardy couldhave attached in the tribal prosecution forfederal purposes only if the Federal Govern-ment had authorized the prosecution. ButCongress did not authorize tribal prosecu-tions, and nothing suggests that the ExecutiveBranch prompted respondent’s tribal prose-cution.


and supreme authority is vested.’’ Black’sLaw Dictionary 1395 (6th ed.1990). It isquite arguably the essence of sovereigntynot to exist merely at the whim of anexternal government.

Further, federal policy itself could bethought to be inconsistent with this residu-al-sovereignty theory. In 1871, Congressenacted a statute that purported to prohib-it entering into treaties with the ‘‘Indiannation[s] or tribe[s].’’ 16 Stat. 566, codi-fied at 25 U.S.C. § 71. Although this Actis constitutionally suspect (the Constitutionvests in the President both the power tomake treaties, Art. II, § 2, cl. 2, and torecognize foreign governments, Art. II,§ 3; see, e.g., United States v. Pink, 315U.S. 203, 228–230, 62 S.Ct. 552, 86 L.Ed.796 (1942)), it nevertheless reflects theview of the political branches that thetribes had become a purely domestic mat-ter.

To be sure, this does not quite suffice todemonstrate that the tribes had lost theirsovereignty. After all, States retain sover-eignty despite the fact that Congress canregulate States qua States in certain limit-ed circumstances. See, e.g., Katzenbach v.Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16L.Ed.2d 828 (1966); cf. New York v.United States, 505 U.S. 144, 160–161, 112S.Ct. 2408, 120 L.Ed.2d 120 (1992); Garciav. San Antonio Metropolitan Transit Au-thority, 469 U.S. 528, 105 S.Ct. 1005, 83L.Ed.2d 1016 (1985). But the States (un-like the tribes) are part of a constitutionalframework that allocates sovereignty be-tween the State and Federal Governmentsand specifically grants Congress authorityto legislate with respect to them, seeS 219U.S. Const., Amdt. 14, § 5. And even so,

we have explained that ‘‘the Framers ex-plicitly chose a Constitution that confersupon Congress the power to regulate indi-viduals, not States.’’ New York, 505 U.S.,at 166, 112 S.Ct. 2408; id., at 162–166, 112S.Ct. 2408; see also Printz, 521 U.S., at910–915, 117 S.Ct. 2365.

The tribes, by contrast, are not part ofthis constitutional order, and their sover-eignty is not guaranteed by it. As ChiefJustice Marshall explained:

‘‘[T]he relation of the Indians to theUnited States is marked by peculiar andcardinal distinctions which exist nowhere else TTT.

‘‘[Y]et it may well be doubted whetherthose tribes which reside within the ac-knowledged boundaries of the UnitedStates can, with strict accuracy, be de-nominated foreign nations. They may,more correctly, perhaps, be denominateddomestic dependent nations.’’ CherokeeNation v. Georgia, 5 Pet. 1, 16–17, 8L.Ed. 25 (1831).

Chief Justice Marshall further describedthe tribes as ‘‘independent political com-munities, retaining their original naturalrights,’’ and specifically noted that thetribes possessed the power to ‘‘mak[e]treaties.’’ Worcester v. Georgia, 6 Pet.515, 559, 8 L.Ed. 483 (1832). Although thetribes never fit comfortably within the cat-egory of foreign nations, the 1871 Acttends to show that the political branchesno longer considered the tribes to be any-thing like foreign nations. And it is atleast arguable that the United States nolonger considered the tribes to be sover-eigns.2 Federal Indian policy is, to say theleast, schizophrenic. And this confusion

2. Additionally, the very enactment of ICRAthrough normal legislation conflicts with thenotion that tribes possess inherent sovereign-ty. Title 25 U.S.C. § 1302, for example, re-quires tribes ‘‘in exercising powers of self-

government’’ to accord individuals most ofthe protections in the Bill of Rights. I doubtwhether Congress could, through ordinarylegislation, require States (let alone foreignnations) to use grand juries.


541 U.S. 221

continues to infuse federal Indian law andour cases.

S 220Nevertheless, if I accept Wheeler, Ialso must accept that the tribes do retaininherent sovereignty (at least to enforcetheir criminal laws against their own mem-bers) and the logical consequences of thisfact. In Heath v. Alabama, 474 U.S. 82,88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985),the Court elaborated the dual sovereigntydoctrine and explained that a single actthat violates the ‘‘ ‘peace and dignity’ oftwo sovereigns by breaking the laws ofeach’’ constitutes two separate offenses.This, of course, is the reason that theDouble Jeopardy Clause does not bar suc-cessive prosecutions by separate sover-eigns. But whether an act violates the‘‘peace and dignity’’ of a sovereign dependsnot in the least on whether the perpetratoris a member (in the case of the tribes) or acitizen (in the case of the States and theNation) of the sovereign.

Heath also instructs, relying on Wheeler,that the separate-sovereign inquiry ‘‘turnson whether the two entities draw theirauthority to punish the offender from dis-tinct sources of power.’’ Heath, supra, at88, 106 S.Ct. 433. But Wheeler makesclear that the tribes and the Federal Gov-ernment do draw their authority to punishfrom distinct sources and that they areseparate sovereigns. Otherwise, the sub-sequent federal prosecution in Wheelerwould have violated the Double JeopardyClause.3 It follows from our case law thatIndian tribes possess inherent sovereigntyto punish anyone who violates their laws.

In Duro v. Reina, 495 U.S. 676, 110S.Ct. 2053, 109 L.Ed.2d 693 (1990), theCourt held that the Indian tribes could nolonger enforce their criminal laws againstnonmember Indians. Despite the obvious

tension, Duro and Wheeler are not neces-sarily inconsistent. Although Wheeler andHeath, taken together, necessarily implythat the tribes retain inherent sovereigntyto try anyone who violates their criminallaws, Wheeler and Duro make S 221clear thatconflict with federal policy can operate toprohibit the exercise of this sovereignty.Duro, then, is not a case about ‘‘inherentsovereignty’’ (a term that we have used tooimprecisely); rather, it is a case aboutwhether a specific exercise of tribal sover-eignty conflicts with federal policy.

Indeed, the Court in Duro relied pri-marily on Oliphant v. Suquamish Tribe,435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209(1978), which held that tribes could notenforce their criminal laws against non-Indians. In reaching that conclusion, theCourt in Oliphant carefully examined theviews of Congress and the ExecutiveBranch. Id., at 197–206, 98 S.Ct. 1011(discussing treaties, statutes, and views ofthe Executive Branch); id., at 199, 98S.Ct. 1011 (discussing Attorney Generalopinions, including 2 Op. Atty. Gen. 693(1834) (concluding that tribal exercise ofcriminal jurisdiction over non-Indians wasinconsistent with various treaties)). Duroat least rehearsed the same analysis. 495U.S., at 688–692, 110 S.Ct. 2053. Thus,although Duro is sprinkled with referencesto various constitutional concerns, see, e.g.,id., at 693–694, 110 S.Ct. 2053, Duro, Oli-phant, and Wheeler are classic federal-common-law decisions. See also County ofOneida v. Oneida Indian Nation of N. Y.,470 U.S. 226, 233–236, 105 S.Ct. 1245, 84L.Ed.2d 169 (1985).

I acknowledge that our cases have dis-tinguished between ‘‘tribal power [that] isnecessary to protect tribal self-govern-

3. I acknowledge that Wheeler focused specifi-cally on the tribes’ authority to try their ownmembers. See 435 U.S., at 323–330, 98 S.Ct.

1079. But, as I discuss below, the distinctionbetween the tribes’ external and internal pow-ers is not constitutionally required.


ment or to control internal relations’’ andtribal power as it relates to the externalworld. Montana v. United States, 450U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d493 (1981); see also Nevada v. Hicks, 533U.S. 353, 358–359, 121 S.Ct. 2304, 150L.Ed.2d 398 (2001); South Dakota v.Bourland, 508 U.S. 679, 695, n. 15, 113S.Ct. 2309, 124 L.Ed.2d 606 (1993); Duro,supra, at 685–686, 110 S.Ct. 2053; Wheel-er, 435 U.S., at 322–325, 98 S.Ct. 1079.This distinction makes perfect sense as amatter of federal common law: Purely ‘‘in-ternal’’ matters are by definition unlikelyto implicate any federal policy. But, criti-cally, our cases have never drawn this lineas a constitutional matter. That is whywe have analyzed extant federal law (em-bodied in treaties, statutes, and ExecutiveOrders) before concluding that particulartribal assertions of power were incompati-ble with the position of the tribes. S 222See,e.g., National Farmers Union Ins. Cos. v.Crow Tribe, 471 U.S. 845, 853–854, 105S.Ct. 2447, 85 L.Ed.2d 818 (1985); Oli-phant, supra, at 204, 98 S.Ct. 1011 (‘‘WhileCongress never expressly forbade Indiantribes to impose criminal penalties on non-Indians, we now make express our implicitconclusion of nearly a century ago [refer-ring to In re Mayfield, 141 U.S. 107, 11S.Ct. 939, 35 L.Ed. 635 (1891) ] that Con-gress consistently believed this to be thenecessary result of its repeated legislativeactions’’).4

As noted, in response to Duro, Congressamended ICRA. Specifically, Congress‘‘recognized and affirmed’’ the existence of‘‘inherent power TTT to exercise criminaljurisdiction over all Indians.’’ 25 U.S.C.§ 1301(2). President Bush signed this leg-islation into law. See 27 Weekly Comp. ofPres. Doc. 1573–1574 (1991). Further, asthis litigation demonstrates, it is the posi-tion of the Executive Branch that thetribes possess inherent authority to prose-cute nonmember Indians.

In my view, these authoritative pro-nouncements of the political branchesmake clear that the exercise of this aspectof sovereignty is not inconsistent with fed-eral policy and therefore with the positionof the tribes. Thus, while Duro may havebeen a correct federal-common-law deci-sion at the time, the political brancheshave subsequently made clear that theS 223tribes’ exercise of criminal jurisdictionagainst nonmember Indians is consistentwith federal policy. The potential conflictson which Duro must have been premised,according to the political branches, do notexist. See also ante, at 1636. I thereforeagree that, as the case comes to us, thetribe acted as a separate sovereign when itprosecuted respondent. Accordingly, theDouble Jeopardy Clause does not bar thesubsequent federal prosecution.

III

I believe that we must examine morecritically our tribal sovereignty case law.

4. Justice SOUTER believes that I have over-looked Oliphant’s reliance on sources otherthan ‘‘treaties, statutes, and the views of theExecutive Branch.’’ Post, at 1651, n. 2. Jus-tice SOUTER quotes the following passagefrom Oliphant: ‘‘[E]ven ignoring treaty provi-sions and congressional policy, Indians do nothave criminal jurisdiction over non-Indiansabsent affirmative delegation of such powerby CongressTTTT Indian tribes are prohibitedfrom exercising both those powers of autono-mous states that are expressly terminated by

Congress and those powers inconsistent withtheir status.’’ 435 U.S., at 208, 98 S.Ct. 1011(emphasis added; internal quotation marksand citation omitted). The second quotedsentence is entirely consistent with federalcommon lawmaking and is difficult to under-stand as anything else. I admit that the firstsentence, which removes from considerationmost of the sources of federal common law,makes the second sentence puzzling. But thisis precisely the confusion that I have identi-fied and that I hope the Court begins toresolve.


541 U.S. 225

Both the Court and the dissent, however,compound the confusion by failing to un-dertake the necessary rigorous constitu-tional analysis. I would begin by carefullyfollowing our assumptions to their logicalconclusions and by identifying the poten-tial sources of federal power to modifytribal sovereignty.

The dissent admits that ‘‘[t]reaties andstatutes delineating the tribal-federal rela-tionship are properly viewed as an inde-pendent elaboration by the politicalbranches of the fine details of the tribes’dependent position, which strips the tribesof any power to exercise criminal jurisdic-tion over those outside their own member-ships.’’ Post, at 1650. To the extent thatthis is a description of the federal-com-mon-law process, I agree. But I do notunderstand how the dissent can then con-clude that ‘‘the jurisdictional implications[arising from this analysis are] constitu-tional in nature.’’ Ibid. By this I under-stand the dissent to mean that Congresscannot alter the result, though the dissentnever quite says so.

The analysis obviously has constitutionalimplications. It is, for example, dispositiveof respondent’s double jeopardy claim.But it does not follow that this Court’sfederal-common-law decisions limitingtribes’ authority to exercise their inherentsovereignty somehow become enshrined asconstitutional holdings that the politicalbranches cannot S 224alter. When the politi-cal branches demonstrate that a particularexercise of the tribes’ sovereign power isin fact consistent with federal policy, theunderpinnings of a federal-common-lawdecision disabling the exercise of that trib-al power disappear. Although I do notnecessarily agree that the tribes have anyresidual inherent sovereignty or that Con-gress is the constitutionally appropriatebranch to make adjustments to sovereign-ty, see Part II, supra, it is important to

recognize the logical implications of theseassumptions.

Similarly unavailing is the dissent’s ob-servation that when we perform the sepa-rate-sovereign analysis ‘‘we are undertak-ing a constitutional analysis based on legalcategories of constitutional dimension.’’Post, at 1650. The dissent concludes fromthis that our double jeopardy analysis inthis context ‘‘must itself have had constitu-tional status.’’ Ibid. This ipse dixit doesnot transform our common-law decisionsinto constitutional holdings. Cf. Dickersonv. United States, 530 U.S. 428, 459–461,120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)(SCALIA, J., dissenting).

I do, however, agree that this case rais-es important constitutional questions thatthe Court does not begin to answer. TheCourt utterly fails to find any provision ofthe Constitution that gives Congress enu-merated power to alter tribal sovereignty.The Court cites the Indian CommerceClause and the treaty power. Ante, at1633. I cannot agree that the Indian Com-merce Clause ‘‘ ‘provide[s] Congress withplenary power to legislate in the field ofIndian affairs.’ ’’ Ibid. (quoting Cotton Pe-troleum Corp. v. New Mexico, 490 U.S.163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209(1989)). At one time, the implausibility ofthis assertion at least troubled the Court,see, e.g., United States v. Kagama, 118U.S. 375, 378–379, 6 S.Ct. 1109, 30 L.Ed.228 (1886) (considering such a constructionof the Indian Commerce Clause to be‘‘very strained’’), and I would be willing torevisit the question. Cf., e.g., UnitedStates v. Morrison, 529 U.S. 598, 120 S.Ct.1740, 146 L.Ed.2d 658 (2000); UnitedStates v. Lopez, 514 U.S. 549, 115 S.Ct.1624, 131 L.Ed.2d 626 (1995); id., at 584–593, 115 S.Ct. 1624 (THOMAS, J., concur-ring).

S 225Next, the Court acknowledges that‘‘[t]he treaty power does not literally au-


thorize Congress to act legislatively, for itis an Article II power authorizing thePresident, not Congress, ‘to make Trea-ties.’ ’’ Ante, at 1633 (quoting U.S. Const.,Art. II, § 2, cl. 2). This, of course, sufficesto show that it provides no power to Con-gress, at least in the absence of a specifictreaty. Cf. Missouri v. Holland, 252 U.S.416, 40 S.Ct. 382, 64 L.Ed. 641 (1920).The treaty power does not, as the Courtseems to believe, provide Congress withfree-floating power to legislate as it seesfit on topics that could potentially impli-cate some unspecified treaty. Such anassertion is especially ironic in light ofCongress’ enacted prohibition on Indiantreaties.

In the end, the Court resorts to citingpast examples of congressional assertionsof this or similar power. Ante, at 1634–1635. At times, such history might suffice.Cf. Dames & Moore v. Regan, 453 U.S.654, 686, 101 S.Ct. 2972, 69 L.Ed.2d 918(1981); Youngstown Sheet & Tube Co. v.Sawyer, 343 U.S. 579, 610–611, 72 S.Ct.863, 96 L.Ed. 1153 (1952) (Frankfurter, J.,concurring). But it does not suffice herefor at least two reasons. First, federalIndian law is at odds with itself. I find itdifficult to reconcile the result in Wheelerwith Congress’ 1871 prospective prohibi-tion on the making of treaties with theIndian tribes. The Federal Governmentcannot simultaneously claim power to reg-ulate virtually every aspect of the tribesthrough ordinary domestic legislation andalso maintain that the tribes possess any-thing resembling ‘‘sovereignty.’’ See PartII, supra. In short, the history points inboth directions.

Second, much of the practice that theCourt cites does not actually help its argu-ment. The ‘‘Insular Cases,’’ which includethe Hawaii and Puerto Rico examples,ante, at 1635, involved Territories of theUnited States, over which Congress has

plenary power to govern and regulate.See Reid v. Covert, 354 U.S. 1, 13, 77 S.Ct.1222, 1 L.Ed.2d 1148 (1957); U.S. Const.,Art. IV, § 3, cl. 2. The existence of atextual source for congressional power dis-tinguishes these cases. And, incidentally,al Sthough226 one might think that Congress’authority over the tribes could be found inArticle IV, § 3, cl. 2, the Court has heldthat the Territories are the United Statesfor double jeopardy purposes, see, e.g.,Wheeler, 435 U.S., at 321–322, 98 S.Ct.1079; Puerto Rico v. Shell Co. (P. R.),Ltd., 302 U.S. 253, 264–266, 58 S.Ct. 167,82 L.Ed. 235 (1937), which would precludethe result in Wheeler. It is for this reasonas well that the degree of autonomy ofPuerto Rico is beside the point. SeeWheeler, supra, at 321, 98 S.Ct. 1079;post, at 1650.

The Court should admit that it has failedin its quest to find a source of congression-al power to adjust tribal sovereignty.Such an acknowledgment might allow theCourt to ask the logically antecedent ques-tion whether Congress (as opposed to thePresident) has this power. A cogent an-swer would serve as the foundation for theanalysis of the sovereignty issues posed bythis case. We might find that the FederalGovernment cannot regulate the tribesthrough ordinary domestic legislation andsimultaneously maintain that the tribes aresovereigns in any meaningful sense. Butuntil we begin to analyze these questionshonestly and rigorously, the confusion thatI have identified will continue to haunt ourcases.

Justice SOUTER, with whom JusticeSCALIA joins, dissenting.

It is as true today as it was in 1886 thatthe relationship of Indian tribes to theNational Government is ‘‘an anomalousone and of a complex character.’’ UnitedStates v. Kagama, 118 U.S. 375, 381, 6


541 U.S. 228

S.Ct. 1109, 30 L.Ed. 228. Questions oftribal jurisdiction, whether legislative orjudicial, do not get much help from thegeneral proposition that tribes are ‘‘do-mestic dependent nations,’’ Cherokee Na-tion v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25(1831), or ‘‘wards of the [American] na-tion,’’ Kagama, supra, at 383, 6 S.Ct. 1109.Our cases deciding specific questions, how-ever, demonstrate that the tribes do retainjurisdiction necessary to protect tribalself-government or control internal tribalrelations, S 227Montana v. United States,450 U.S. 544, 564, 101 S.Ct. 1245, 67L.Ed.2d 493 (1981), including the right toprosecute tribal members for crimes,United States v. Wheeler, 435 U.S. 313,323–324, 98 S.Ct. 1079, 55 L.Ed.2d 303(1978), a sovereign right that is ‘‘inherent,’’ibid., but neither exclusive, Kagama, su-pra, at 384–385, 6 S.Ct. 1109 (federal crim-inal jurisdiction), nor immune to abroga-tion by Congress, Wheeler, supra, at 323,98 S.Ct. 1079 (‘‘the sufferance of Con-gress’’). Furthermore, except as providedby Congress, tribes lack criminal jurisdic-tion over non-Indians, Oliphant v. Su-quamish Tribe, 435 U.S. 191, 212, 98 S.Ct.1011, 55 L.Ed.2d 209 (1978), and over non-member Indians, Duro v. Reina, 495 U.S.676, 685, 688, 110 S.Ct. 2053, 109 L.Ed.2d693 (1990).

Of particular relevance today, we held inDuro that because tribes have lost theirinherent criminal jurisdiction over non-member Indians, any subsequent exerciseof such jurisdiction ‘‘could only have cometo the Tribe’’ (if at all) ‘‘by delegation fromCongress.’’ Id., at 686, 110 S.Ct. 2053.Three years later, in South Dakota v.Bourland, 508 U.S. 679, 113 S.Ct. 2309,124 L.Ed.2d 606 (1993), we reiterated thisunderstanding that any such ‘‘delegation’’would not be a restoration of prior inher-

ent sovereignty; we specifically explainedthat ‘‘tribal sovereignty over nonmemberscannot survive without express congres-sional delegation, and is therefore not in-herent.’’ Id., at 695, n. 15, 113 S.Ct. 2309(emphasis in original; citation and internalquotation marks omitted).1 Our prece-dent, then, is that any tribal exercise ofcriminal jurisdiction over nonmembersnecessarily rests on a ‘‘delegation’’ of fed-eral power and is not akin to a State’scongressionally permitted exercise of someauthority that would otherwise be barredby the dormant Commerce Clause, seeNew York v. United States, 505 U.S. 144,171, 112 S.Ct. 2408, 120 L.Ed.2d 120(1992). It is more like the delegation oflawmaking power to an administrativeagency, whose jurisdiction would not evenexist absent congressional authorization.

S 228It is of no moment that we havegiven ostensibly alternating explanationsfor this conclusion. We have sometimesindicated that the tribes’ lack of inherentcriminal jurisdiction over nonmembers is anecessary legal consequence of the basicfact that the tribes are dependent on theFederal Government. Wheeler, supra, at326, 98 S.Ct. 1079 (‘‘[The tribes’ inabilityto] try nonmembers in tribal courts TTT

rest[s] on the fact that the dependent sta-tus of Indian tribes within our territorialjurisdiction is necessarily inconsistent withtheir freedom independently to determinetheir external relations’’); Oliphant, 435U.S., at 210, 98 S.Ct. 1011 (‘‘By submittingto the overriding sovereignty of the Unit-ed States, Indian tribes therefore neces-sarily give up their power to try non-Indian citizens of the United States TTT’’).At other times, our language has suggest-ed that the jurisdictional limit stems fromcongressional and treaty limitations ontribal powers. See id., at 204, 98 S.Ct.

1. Bourland was a civil case about the regula-tion of hunting and fishing by non-Indians.

Its applicability in the criminal context ispresumably a fortiori.


1011 (‘‘Congress’ various actions and inac-tions in regulating criminal jurisdiction onIndian reservations demonstrated an in-tent to reserve jurisdiction over non-Indi-ans for the federal courts’’); NationalFarmers Union Ins. Cos. v. Crow Tribe,471 U.S. 845, 853–854, 105 S.Ct. 2447, 85L.Ed.2d 818 (1985) (‘‘In Oliphant we TTT

concluded that federal legislation confer-ring jurisdiction on the federal courts totry non-Indians for offenses committed inIndian Country had implicitly pre-emptedtribal jurisdiction’’). What has never beenexplicitly stated, but should come as nosurprise, is that these two accounts arenot inconsistent. Treaties and statutesdelineating the tribal-federal relationshipare properly viewed as an independentelaboration by the political branches of thefine details of the tribes’ dependent posi-tion, which strips the tribes of any powerto exercise criminal jurisdiction over thoseoutside their own memberships.

What should also be clear, and what Iwould hold today, is that our previous un-derstanding of the jurisdictional implica-tions of dependent sovereignty was consti-tutional in nature, certainly so far as itssignificance under the Double JeopardyS 229Clause is concerned. Our discussions ofIndian sovereignty have naturally focusedon the scope of tribes’ inherent legislativeor judicial jurisdiction. E.g., Nevada v.Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150L.Ed.2d 398 (2001) (jurisdiction of tribalcourts over civil suit against state official);South Dakota v. Bourland, supra (tribalregulations governing hunting and fishing).And application of the double jeopardydoctrine of dual sovereignty, under whichone independent sovereign’s exercise ofcriminal jurisdiction does not bar anothersovereign’s subsequent prosecution of thesame defendant, turns on just this questionof how far a prosecuting entity’s inherentjurisdiction extends. Grafton v. UnitedStates, 206 U.S. 333, 354–355, 27 S.Ct. 749,

51 L.Ed. 1084 (1907). When we enquire‘‘whether the two [prosecuting] entitiesdraw their authority to punish the offenderfrom distinct sources of power,’’ Heath v.Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88L.Ed.2d 387 (1985), in other words, we areundertaking a constitutional analysis basedon legal categories of constitutional dimen-sion (i.e., is this entity an independent ordependent sovereign?). Thus, our applica-tion of the doctrines of independent anddependent sovereignty to Indian tribes inresponse to a double jeopardy claim mustitself have had constitutional status. SeeWheeler, supra, at 326, 98 S.Ct. 1079 (hold-ing that tribes’ inability to prosecute non-members ‘‘rest[s] on the fact that the de-pendent status of Indian tribes within ourterritorial jurisdiction is necessarily incon-sistent with their freedom independentlyto determine their external relations’’).

That means that there are only twoways that a tribe’s inherent sovereigntycould be restored so as to alter applicationof the dual sovereignty rule: either Con-gress could grant the same independenceto the tribes that it did to the Philippines,see ante, at 1635, or this Court could repu-diate its existing doctrine of dependentsovereignty. The first alternative has ob-viously not been attempted, and I see noreason for us to venture down a pathtoward the second. To begin with, thetheory we followed before today has thevirtue of fitting the facts: no one couldpossibly deny that the tribes are subSordi-nate230 to the National Government. Fur-thermore, while this is not the place toreexamine the concept of dual sovereigntyitself, there is certainly no reason to adopta canon of broad construction calling formaximum application of the doctrine. Fi-nally, and perhaps most importantly, prin-ciples of stare decisis are particularly com-pelling in the law of tribal jurisdiction, anarea peculiarly susceptible to confusion.And confusion, I fear, will be the legacy of


541 U.S. 231

today’s decision, for our failure to stand bywhat we have previously said reveals thatour conceptualizations of sovereignty anddependent sovereignty are largely rhetori-cal.2

S 231I would therefore stand by our expla-nations in Oliphant and Duro and holdthat Congress cannot reinvest tribal courtswith inherent criminal jurisdiction overnonmember Indians. It is not that I fail toappreciate Congress’s express wish thatthe jurisdiction conveyed by statute betreated as inherent, but Congress cannotcontrol the interpretation of the statute ina way that is at odds with the constitution-al consequences of the tribes’ continuingdependent status. What may be givencontrolling effect, however, is the principalobject of the 1990 amendments to the Indi-an Civil Rights Act of 1968, 25 U.S.C.

§ 1301 et seq., which was to close ‘‘thejurisdictional void’’ created by Duro byrecognizing (and empowering) the tribalcourt as ‘‘the best forum to handle misde-meanor cases over non-member Indians,’’H.R.Rep. No. 102–261, p. 6 (1991),U.S.Code Cong. & Admin.News 1991, pp.370, 376. I would therefore honor thedrafters’ substantive intent by reading theAct as a delegation of federal prosecutorialpower that eliminates the jurisdictionalgap.3 Finally, I would hold that a tribe’sexercise of this delegated power bars sub-sequent federal prosecution for the sameoffense. I respectfully dissent.

,

2. Justice THOMAS’s disagreement with meturns ultimately on his readiness to discardprior case law in this field and, indeed, on hisrejection in this very case of the concept ofdependent sovereignty. He notes, for exam-ple, ante, at 1644 (opinion concurring in judg-ment), that the Court in Heath v. Alabama,474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d387 (1985), explained that one act that vio-lates the peace and dignity of two sovereignsconstitutes two separate offenses for purposesof double jeopardy. Justice THOMAS thenconcludes that whether an act violates a sov-ereign’s peace and dignity does not depend(when the sovereign is an Indian tribe) onwhether the perpetrator is a member of thetribe. Justice THOMAS therefore assumesthat tribes ‘‘retain inherent sovereignty to tryanyone who violates their criminal laws.’’Ante, at 1645. This Court, however, has heldexactly to the contrary: a tribe has no inher-ent jurisdiction to prosecute a nonmember.In rejecting this precedent, Justice THOMASimplicitly rejects the concept of dependentsovereignty, upon which our holdings in Unit-ed States v. Wheeler, 435 U.S. 313, 98 S.Ct.1079, 55 L.Ed.2d 303 (1978), and Oliphant v.Suquamish Tribe, 435 U.S. 191, 98 S.Ct. 1011,55 L.Ed.2d 209 (1978) rested. Reciting Oli-phant’s examination of treaties, statutes, andviews of the Executive Branch, JusticeTHOMAS attempts to suggest that these opin-

ions were only momentary expressions ofmalleable federal policy. But he somehowignores Oliphant’s own emphasis that itsanalysis did not rest on historical expressionsof federal policy; rather, ‘‘even ignoring trea-ty provisions and congressional policy, Indi-ans do not have criminal jurisdiction overnon-Indians absent affirmative delegation ofsuch power by CongressTTTT Indian tribesare prohibited from exercising both thosepowers of autonomous states that are express-ly terminated by Congress and those powersinconsistent with their status.’’ Id., at 208, 98S.Ct. 1011 (emphasis in original; citation andinternal quotation marks omitted); see alsoDuro v. Reina, 495 U.S. 676, 686, 110 S.Ct.2053, 109 L.Ed.2d 693 (1990). There is sim-ply no basis for Justice THOMAS’s recharac-terization of this clear holding.

3. Justice THOMAS suggests that this delega-tion may violate the separation of powers.Ante, at 1642–1643. But we are not resolvingthe question whether Lara could be ‘‘prose-cuted pursuant to TTT delegated power,’’ 324F.3d 635, 640 (C.A.8 2003), only whether theprosecution was in fact the exercise of aninherent power, see Pet. for Cert. (I), andwhether the exercise of a delegated powerwould implicate the protection against doublejeopardy.

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