"In my view, the tribes either are or are not separate sovereigns, and our federal Indian
law cases untenably hold both positions simultaneously..
In 1871, Congress enacted a statute that pur-ported to prohibit entering into treaties
with the "Indian nation[s] or tribe[s]." 16 Stat. 566, codi-fied at 25 usc §71. Although
this Act is constitu-tionally suspect (the Constitution vests in the President both the
power to make treaties, Art. ii, §2, cl. 2, and to recognize foreign governments, Art. ii,
§3; see, e.g., United States v. Pink, 315 us 203, 228-230 (1942)), it nevertheless reflects
the view of the political branches that the tribes had become a purely domestic matter.
To be sure, this does not quite suffice to demon-strate that the tribes lost their
Federal Indian policy is, to say the least, schizophrenic. And this confusion continues
to infuse federal Indian law and our cases.
(note 4).this is precisely the confusion that I have identi-fied and that I hope the Court
begins to resolve..
I believe we must examine more critically our tribal sovereignty case law. Both the Court
and the dissent, however, compound the confusion by fail-ing to undertake the necessary
rigorous constitu-tional analysis. I would begin by carefully follow-ing our assumptions to
their logical conclusions and by identifying the potential sources of federal power to
modify tribal sovereignty..
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.and I would
be willing to revisit the question..
The Federal Government cannot simultaneously claim power to regulate virtually every
aspect of the tribes through ordinary domestic legislation and also maintain the tribes
possess anything re-sembling "sovereignty."
The Court should admit that it has failed in its quest to find a source of congressional
power to adjust tribal sovereignty. Such an acknowledge-ment might allow the Court to ask
the logically an-tecedent question whether Congress (as opposed to the President) has this
power. A cogent answer would serve as the foundation for the analysis of the sovereignty
issues posed by this case. We might find that the Federal Government cannot regulate the
tribes through ordinary domestic legislation and simultaneously maintain that the tribes
are sovereigns in any meaningful sense. But until we begin to analyze these questions
honestly and rig-orously, the confusion that I have identified will continue to haunt our
In the USA the unconstitutional Federal Statute was named the Appropriations Act, 1871. In Canada the same thing happened under the Indian Act, 1876. Ever since the 1780s in both countries the legal establishment (lawyers, judges and police) has stonewalled the aforesaid constitutional question. You will recognize as it, perhaps, as being the same basic "Indian sovereignty" question as your People raised back in 1973 when they registered put the Land Caution. The question was dropped from your proceedings upon the change of solicitors from me to Borden & Elliot. I continued to raise it other contexts until I was disbarred for persisting. Now that a presiding U.S. Supreme Court Justice has raised the same question it may be less possible for the legal establishment to put a lid on the truth.
The reason some Indians collaborate is the same reason people all around the world
collaborate in the unconstitutional genocide ("serious bodily or mental harm" Art. 2(b)
Genocide Convention) of their own People. It pays.