It was Justice [Clarence Thomas], the lone African American, whose voting record on Indian cases is more anti-Indian than even Rehnquist or Scalia, who in his concurring opinion, made several critical points that were most telling. Thomas will never be mistaken for Thurgood Marshall, who wrote several affirmative Indian law rulings, and his intention in crafting his opinion in this case was almost certainly not meant to be transparently supportive of tribal sovereignty. Yet he identified several enigmas in law and policy that, if acted upon by tribal, state and federal policymakers, might lead to a clearer status for indigenous rights and a reduction or outright termination of the still virtually absolute, or plenary, power still wielded by the Congress over tribes.

[Billy Jo Lara], however, despite its recognition of inherent tribal sovereignty, is also a troubling ruling because, as Thomas rightly opined, the majority opinion, written by Justice Breyer, reaffirms congressional plenary (read: virtually absolute) power in relation to tribes by declaring that Congress retains the power under the Treaty and Commerce clauses to either relax or restrict a tribes' inherent sovereignty. But as Thomas noted, and as a close reading of Indian treaties and the Commerce clause reveals, these two powers do not explicitly or even implicitly extend to the Congress such paramount, or I should say, anti-democratic authority, since treaty-making forged diplomatic relations, while commerce decisions cemented economic alliances.

Finally, and almost as peculiar as Thomas' surprising concurrence, was the strange pairing in the dissent of the Court's most conservative ideologue, Justice Antonin Scalia, with arguably the most liberal justice, David Souter, at least in-so-far as Indian law goes. Souter's opinion, joined by Scalia, griped that as "dependent" peoples, tribal nations had been shorn of the power to try those outside their membership. And since Congress, in Souter's words, had effectively "delegated" to tribes the power to punish non-member Indians in 1991, this, in effect, meant that Lara had the right to invoke the Double Jeopardy clause. Full Text

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Copyright © 2004 Indian Country Today. This article first appeared in Indian Country Today (May 2004), A4.

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