Dispelling the Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead

• Publication year: 2021
• Citation: Vol. 78

78 Nebraska L. Rev. 162. Dispelling the Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead

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Note*

Dispelling the Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead (fn1)

Long ago there were no stars, no moon, no sun. There was only darkness and water. A raft floated on the water, and on the raft sat a turtle. Then from the sky, a spirit came down and sat on the raft. "Who are you?" asked Turtle. "Where do you come from?" "I came from above," answered the spirit. "Can you create some land for us?" asked Turtle. "We need dry land and some people to live on it."

. . . .

Creator scraped the earth from under Turtle's nails and rolled it around in his hand. At first nothing happened. Then the earth began to grow. It enlarged until it became as big as the world . . . .

. . . .

Then the spirit said that something else was needed, and he made people . . . . The first man was called Kuksu, and the first woman was called Morning Star. And by and by there were many people on the earth.

For a long time everyone spoke the same language, but suddenly people began to speak in different tongues. Kuksu, however, could speak all the languages, so he called his people together and told them the names of the animals in their own languages, taught them to get food, and gave them their laws and rituals. Then he sent each tribe to a different place to live. Then he too left. He went to the spirit house that was up above.(fn2)

TABLE OF CONTENTS

I. Introduction .......................................... 163
II. United States v. Weaselhead ........................... 165
A. Facts .............................................. 166
B. Background ......................................... 168
C. The Opinions........................................ 174

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1. The District Court's Order ...................... 174
2. The Eighth Circuit Court of Appeals - The
Panel's Majority Opinion ........................ 175
3. The Eighth Circuit Court of Appeals - The
Panel's Dissenting Opinion ...................... 178
III. Historical Analysis of Disagreements in United States v.
Weaselhead ............................................ 180
A. The Trilogy ........................................ 181
B. Plenary Powers and Consequences of Allotment ....... 187
C. Implicit Divestiture ............................... 190
D. Comments on the Constitution........................ 193
IV. Practical Implications the Eighth Circuit Avoided by
Vacating the Panel's Decision ......................... 199
V. Conclusion ............................................ 203

I. INTRODUCTION

Indian and non-Indian interests have collided from first contact.(fn3) Since the adoption of the United States Constitution, courts have struggled to reconcile society's infringements on indigenous peoples with democratic notions.(fn4) Indian tribes were, and continue to be, vulnerable to majority interests.(fn5) Early Supreme Court decisions attempted to affirm a measure of tribal autonomy and institute some

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semblance of protection from the dominant white culture.(fn6) However, the modern Supreme Court has steadily whittled away many of the early protective devices.(fn7) The Court's trend focuses on non-tribal interests in analyzing tribal sovereignty.(fn8)

In United States v. Weaselhead,(fn9) the United States District Court for the District of Nebraska recognized Congress's authority to affirm tribes' inherent sovereign authority. Initially, the majority of an Eighth Circuit Court of Appeals three-judge panel (the "Panel") reversed the district court and gave constitutional weight to Supreme Court decisions that had diminished tribal sovereignty.(fn10) Had the Panel's majority decision stood, it would have necessarily abrogated Congress's power to legislate on Indian affairs, and its decision would have had far-reaching implications for tribal governments and tribal members. As did the district court, the Panel focused on the source of tribal sovereignty and the effect of Congress's amendments to the Indian Civil Rights Act.(fn11) Subsequently, the Panel's opinion was vacated. (fn12) The Eighth Circuit Court of Appeals, sitting en banc and acting in a per curiam capacity, affirmed the district court's order by a vote of an equally divided court and without opinion.(fn13)

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The district court's order and the decisions of the Eighth Circuit Court of Appeals sitting as a three-judge panel and, subsequently, en banc, illustrate the clash between historical precedent, the Constitution, and pragmatics. This Note analyzes the primary conflicts among the order of the District Court for the District of Nebraska and the vacated majority and dissenting opinions of the Eighth Circuit Court of Appeals Panel in United States v. Weaselhead. The Note highlights the tension in logic with which modern Supreme Court analyses of tribal sovereignty has presented courts, Congress, and tribal governments. The Note also discusses the potential implications of giving constitutional weight to Supreme Court decisions that purportedly diminished tribal sovereignty.

After providing historical background necessary to place any case involving federal Indian law into context, the district court's order and the Panel's majority and dissenting opinions are summarized. Next, the major areas of disagreement-the source of tribal sovereignty and the nature of congressional authority over that sovereignty-are analyzed through a historical perspective. Last, because the Eighth Circuit did not decisively resolve issues that the various decisions in Weaselhead raised, the Note discusses the implications the Panel majority's vacated opinion would have had for future federal Indian legislation and policy, and the practical effects the opinion would have had on Indian tribes.

II. UNITED STATES V. WEASELHEAD

Under the Fifth Amendment's Double Jeopardy Clause, no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."(fn14) Multiple prosecutions violate the Double Jeopardy Clause of the Fifth Amendment only if the prosecutions are initiated by the same sovereign.(fn15) Neither a federal nor a state prosecution of the same person for the same act bars a subsequent prosecution by the other.(fn16) However, the Fifth Amendment bars successive prosecutions by only nominally different entities.(fn17) For instance, courts have reasoned that territorial courts and federal courts are both "creations em-

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anating from the same sovereignty" and, therefore, prosecution by one bars subsequent prosecution by the other.(fn18)

Both the magistrate judge, in his Report and Recommendation to the District Court,(fn19) and the Eighth Circuit Panel majority (fn20) determined that Congress's definition of Indian tribes' jurisdiction over non-member Indians,(fn21) subsequent to Supreme Court interpretation of that jurisdiction, constituted a delegation of congressional power to tribal governments and not an affirmation of retained sovereignty. Therefore, the magistrate judge and the Panel majority found that the Winnebago Tribal Court had merely exercised authority emanating from the same source of power as that of federal jurisdiction when it convicted Robert Weaselhead, Jr. Accordingly, they concluded that the federal indictment of Weaselhead, subsequent to a tribal conviction, should have been dismissed on Fifth Amendment grounds.

In contrast, the district court (fn22) and the Eighth Circuit Panel dissent (fn23) both concluded that Congress is the final arbiter of the extent of retained tribal sovereignty. Both asserted that the Supreme Court's decisions regarding limitations on tribal sovereignty were based on federal common law. Therefore, both concluded that Congress had merely affirmed tribes' inherent sovereignty as it relates to criminal jurisdiction, and that the Winnebago Tribe's jurisdiction did not emanate from the same source as that of the federal government.

A. Facts

Robert Lee Weaselhead, Jr. is an enrolled member of the Blackfeet Indian Tribe of Montana. In March 1997, Weaselhead was arraigned in Winnebago Tribal Court on several charges alleged to have been committed on the Winnebago Reservation, including sexual assault on a minor child. Pursuant to a plea agreement, Weaselhead pled no contest to one count of first degree sexual assault and the remaining charges were dismissed. The tribal court entered a judgment of con-

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viction and sentenced Weaselhead to 280 days in jail, with 100 days of his sentence suspended.(fn24)

On the same day Weaselhead entered his plea in tribal court, a federal grand jury indicted him on a charge of engaging in a sexual act with an Indian female juvenile.(fn25) Weaselhead pled not guilty and moved to dismiss the indictment on grounds of double jeopardy. The grand jury then returned a superseding indictment, charging three counts of sexual assault for conduct on separate dates, with conduct on one of those dates being that upon which the tribal conviction was based. Weaselhead amended his motion to dismiss to include all counts of the superseding indictment, again on the grounds of double jeopardy.

The magistrate judge submitted a Report and Recommendation to the District Court for the District of Nebraska, suggesting the court dismiss the indictment on double jeopardy grounds.(fn26) The magistrate judge based his recommendation on interpretation of prior case law (fn27) and a subsequent congressional amendment to the Indian Civil Rights Act.(fn28) He concluded that, because the tribal court exercised jurisdiction that emanated from a congressional delegation of power, the Fifth Amendment barred subsequent prosecution by the federal government for the same conduct.

However, the United States District Court for...