Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.
Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.
First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago:
The Court of Claims has observed that the relationship between the United States and Indians is not governed by ordinary trust principles: “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States. Rather, the general relationship between Indian tribes and [the United States] traditionally has been understood to be in the nature of a guardian-ward relationship. A guardianship is not a trust. The duties of a trustee are more intensive than the duties of some other fiduciaries.” Cherokee Nation of Oklahoma v. United States, 21 Cl.Ct. 565, 573 (1990) (citations and internal quotation marks omitted).
One can only wonder what Justice Thomas would have done if Cobell had fallen into the Court’s lap. Today’s posting on the lower court’s sarcastic rejection of the government’s position on the merits of the Jicarilla trust claim suggests the DOJ and DOI are more than willing to offer up an argument to return the trust relationship to the Lone Wolf v. Hitchcock era.
Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause:
I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty. The Court cites the Indian Commerce Clause and the treaty power. Ante, at 1633. I cannot agree that the Indian Commerce Clause “ ‘provide[s] Congress with plenary power to legislate in the field of Indian affairs.’ ” Ibid. (quoting Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)). At one time, the implausibility of this assertion at least troubled the Court, see, e.g., United States v. Kagama, 118 U.S. 375, 378-379, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (considering such a construction of the Indian Commerce Clause to be “very strained”), and I would be willing to revisit the question. Cf., e.g., United States 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., concurring).
This is tempting, right? Who wouldn’t want the Court to revisit these cases? But Justice Thomas has a theory about tribal sovereignty directly tied to this reopening up of the foundational principles of Indian law. First, he would strike down Wheeler as inconsistent with the notion that a sovereign dependent upon another sovereign is still a sovereign:
In Wheeler, 435 U.S., at 322-323, 98 S.Ct. 1079, the Court explained that, prior to colonization, “the tribes were self-governing sovereign political communities.” The Court acknowledged, however, that, after “[t]heir incorporation within the territory of the United States,” the tribes could exercise their inherent sovereignty only as consistent with federal policy embodied in treaties, statutes, and Executive Orders. Id., at 323, 98 S.Ct. 1079; see also id., at 327-328, 98 S.Ct. 1079. Examining these sources for potential conflict, the Court concluded that the tribes retained the ability to exercise their inherent sovereignty to punish their own members. Id., at 323-330, 98 S.Ct. 1079.Although Wheeler seems to be a sensible example of federal common lawmaking, I am not convinced that it was correctly decided. To be sure, it makes sense to conceptualize the tribes as sovereigns that, due to their unique situation, cannot exercise the full measure of their sovereign powers. Wheeler, at times, seems to analyze the problem in just this way. See, e.g., id., at 323-326, 98 S.Ct. 1079; id., at 323, 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 infra).But I do not see how this is consistent with the apparently “undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government.” 435 U.S., at 319, 98 S.Ct. 1079. The sovereign is, by definition, the entity “in which independent and supreme authority is vested.” Black’s Law Dictionary 1395 (6th ed.1990). It is quite arguably the essence of sovereignty not to exist merely at the whim of an external government.
So if Wheeler is incorrect and should be revisited, too, then what would that look like? Nothing less than the complete abrogation of tribal sovereignty:
To be sure, this does not quite suffice to demonstrate that the tribes had lost their sovereignty. After all, States retain sovereignty despite the fact that Congress can regulate States qua States in certain limited circumstances. See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); cf. New York v. United States, 505 U.S. 144, 160-161, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). But the States (unlike the tribes) are part of a constitutional framework that allocates sovereignty between the State and Federal Governments and specifically grants Congress authority to legislate with respect to them, see U.S. Const., Amdt. 14, § 5. And even so, we have explained that “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” New York, 505 U.S., at 166, 112 S.Ct. 2408; id., at 162-166, 112 S.Ct. 2408; see also Printz, 521 U.S., at 910-915, 117 S.Ct. 2365.
The tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it. As Chief Justice Marshall explained:“[T]he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else ….“[Y]et it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1, 16-17, 8 L.Ed. 25 (1831).Chief Justice Marshall further described the tribes as “independent political communities, retaining their original natural rights,” and specifically noted that the tribes possessed the power to “mak[e] treaties.” Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832). Although the tribes never fit comfortably within the category of foreign nations, the 1871 Act tends to show that the political branches no longer considered the tribes to be anything like foreign nations. And it is at least arguable that the United States no longer considered the tribes to be sovereigns. Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases.
The end of tribal sovereignty. These views aren’t controlling, but Justice Thomas appears to be on the ascendancy. Indian country should be wary.
The Jicarilla case suggests that the federal government doesn’t think of itself as liable for any trust breaches unless Congress spelled it out using really simple words. Pretty much any trust case the feds lose below is a proper vehicle for bringing back the guardian-ward relationship. If overt corruption in the Navajo Nation I case isn’t enough to save the trust responsibility in the Rehnquist Court, then nothing might be in the Roberts (Thomas) Court.
And a goodly portion of the time, the United States defends tribal sovereignty only as a means of making sure there’s an on-the-ground law enforcement unit to assist the feds in handling Indian country crime. The government’s efforts at supporting tribal tax immunities, land claims, and civil jurisdiction over nonmembers have been roundly unsuccessful since the Burger Court era. The Lara II case (direct appeal of tribal court conviction, poor procedural facts like no right to counsel) is coming, and does that mean Wheeler’s days are numbered?
If Justice Thomas is writing the majority opinion, as he did in Wagnon, Carcieri, Cass County, and so many others, you bet.
Turtle Talk 
Yikes.
If the commerce clause doesn’t give congress the power to regulate tribes, and there is no other source, then isn’t there one of two conclusions: 1) no more tribal sovereignty, as you stated; or 2) complete tribal sovereignty? I don’t see the Navajo Nation (or any other thriving tribal community) disappearing, but Thomas’s views are troubling – is there a compelling argument to convince him otherwise?
When I was a law student, a member of a very “conservative” New Mexico Firm (almost gleefully) pronounced that ” Indian Law is Dead after the Oliphant Decision”. He went on to explain that any time there is a future challenge as to tribal authority (sovereignty) based on such activity be “incosistent with the status of a domestic dependent nation”, the tribe will undoubtably lose. I beg to differ with him some 25 years later; Indian Law is not “dead” but may certainly be terminal. The slow death process post-Olipahant The Roberts/Thomas Court is more apparent in the academic community than on-the-ground in the reservation communities. Can the Supreme Court be convinced to “arrest” this slow death process? I think not. The Court has gone down a one-way street. Renquist knew it when he wrote for the majority in Oliphant and the current court simply builds toward the inevitable conclusion. Where do the tribes go from here? Congress? International Law? The people? I would venture that only the last option is the most “permanent” fix. Only an amendment to the U.S. Constitution that recognizes the Indian Nations’ right to “exist into perpetuity” (Wendal Chino) and that prevents the Federal Government and the Individual States and their respective branches of government from engaging in any act or acts which are designed to bring about the disappearance of the Indian Nations or would be a consequence therof. The fourth option, which some tribes are turning to already, is to “internalize”. That is, to close the doors to any and all that are not “citizens” of the reservaton and to open those doors only upon adherence to and explicit ” consentual relationship with the tribe”. What are the consequences of such a requirment under other provisions in the
U.S. Constitution.
See my comments above. I’m sure that we, as Indian Law Pratitioners, can assist our Tribal Nation clients for another few generation in fighting the “rear guard” battles in which we are presently engaged, and that we will seek the help of the Congress, the International Community as well as even “friendly” States. However, “Who so giveth can taketh away”. Ultimately Tribes must sustain their perpetual existance, just as the Tribes did pre-constitution and just as those tribes who have sucessfully petitioned for so-called “federal recognition” had to do. A tribe does not cease to be a tribe until a tribe decides it will cease to be a tribe. Just ask Federal Recognition Tribe # 565.
Al Logan Slagle would keep fighting and find a intelligent argument in response to this bigoted supreme court. Keep the Spirit strong in protecting Native rights and sovereignty!
Rather than a constitutional amendment, perhaps Congress could essentially “absorb” tribal sovereign immunity into the Federal Tort Claims Act. Admittedly, there would be some kinks, such as what to do with PL-280 states where tribes are subject to some of their embedded states’ laws (though this would fit in the FTCA’s provisions about adjudicating claims based on that state’s laws), as well as dealing with tribal membership issues (i.e., whether the FTCA should abrogate Santa Clara Pueblo v. Martinez).
Also, Congress could exercise its federal “police power” such as it does over military bases and federal lands since federal trust lands are essentially federal lands to begin with, with Indians given a right to possess.
Still, severing tribal sovereign immunity from its Marshall Court underpinnings would prove disastrous for Indian Country. Hopefully the Court does not go in this direction.
I’m going to predict the Freedmen will now have a chance to win their case in the Thomas’ Court and his distorted view of Indian law!