WikiLeaks I: Tribal Sovereignty and U.S. Confidence

Part I: The Congressional Research Service
The Congressional Research Service (CRS), institutionally located within the Library of Congress, is the confidential, nonpartisan research unit for the U.S. Congress. Popularly referred to as a “think tank,” it is where congressional members and staffers commission particular research on issues that might generate potential congressional action–including those both foreign and domestic, legal and economic. It is staffed by around 700 people, including lawyers, economists, librarians, social, natural and physical scientists, with an operating budget around $100 million annually.
CRS is linked to the Congressional Budget Office and the Government Accounting Office with the primary difference being that the reports generated by the CRS are confidential, distributed first to the specific official or staffer who commissioned them and only occasionally released to the public. Though some lawmakers have fought to make the reports public, the bills to do so have been rejected almost every year since 1998, reports WikiLeaks. “The CRS, as a branch of Congress, is exempt from the Freedom of Information Act.”
As reported by WikiLeaks, “CRS archives as a whole are firewalled from public access,” no doubt because they represent the “off the record” political agendas of those directing them. “The reports top the list of the “10 Most-Wanted Government Documents” compiled by the Washington based Center for Democracy and Technology.”
In 2009, WikiLeaks secured over 127,000 pages of material from CRS, including those addressing the U.S. relationship with Israel, the wars in Iraq and Afghanistan, and the 2008 foreclosure crisis.

Over the next few blogs, I will review some of the CRS documents that pertain to American Indian tribes, Alaska Native villages, and Native Hawaiians–the three legal categories of Indigenous peoples, as defined by the United Nations, within U.S. territory. My initial inquiry is guided by concerns about how the U.S. Congress is “paying attention” to Indigenous nations and individuals–what concerns and issues do they request be investigated? How are those investigations important to congressional oversight, policy directives, and legislative proposals? How should Indigenous groups respond to these investigations, the majority of which they have not been made privy to either in conduct or in their circulation/use?
Part II: Tribal Sovereignty and Nonmembers
On April 2004, Nathan Brooks, a legislative attorney with the American Law Division of CRS, issued an analysis (Report RL32361) entitled Tribal Sovereignty Over Nonmember Indians: United States v. Billy Jo Lara. Brooks summarizes the SCOTUS case as follows:

On April 19, 2004, the Supreme Court handed down its decision in United States v.Billy Jo Lara allowing Indian tribes and the federal government to each prosecute nonmember defendants for the same on-reservation crime without violating the Double Jeopardy Clause. This case presented interesting questions of Indian tribal sovereignty and how Indian tribes fit into the American Constitutional structure of government. The case centered around a tribe’s authority to prosecute nonmember Indians for crimes committed on that tribe’s reservation. Billy Jo Lara, an Indian, was arrested by Bureau of Indian Affairs (BIA) officers on the Spirit Lake Indian Reservation in 2001 for public intoxication. In the course of his arrest, Lara, who is not a member of the Spirit Lake Nation, struck one of the officers and subsequently pled guilty to three violations of the Spirit Lake Tribal Code. Lara was later charged in federal court with assaulting a federal officer, and moved to dismiss on the ground that his having to stand trial in both tribal and federal court for the same offense violated the Double Jeopardy Clause of the Fifth Amendment. The Eighth and Ninth Circuits, when confronted with this issue, had each reached very different conclusions, and the Supreme Court granted certiorari to resolve this split. In order to answer the question of whether or not the federal prosecution violated Double Jeopardy, the Court had to explicate more clearly than in its previous cases the source of Indian tribal sovereignty. Relatedly, the Court also had to determine whether the answer to this question is grounded in the Constitution or in federal common law and legislation.

Brooks, working through a limited number of scholarly journals and the standard fare of SCOTUS opinions concerning tribal jurisdiction, provides a rather unremarkable conclusion about the implications of the case:

The Supreme Court’s holding in Billy Jo Lara preserves Congress’s ability to allow tribes to prosecute nonmember Indians, while retaining the federal government’s authority to prosecute those same defendants. It seems likely that the Court’s holding also, in essence, eliminates the long-standing distinction between inherent and delegated authority in that Congress now clearly has the power to classify authority as “inherent” at its choosing. It should be noted, though, that according to the Eighth Circuit’s dissenting opinion, which utilized reasoning similar to that of the Supreme Court majority, delegation would still come into play in those situations where Congress does not have the power to restore aspects of tribal sovereignty. It is not clear, however, under what circumstances such a situation could arise.

Somewhat speculative, the conclusion emphasizes congressional authority to allow tribal courts to prosecute nonmember Indians even while federal authorities maintain ability to prosecute those same defendants. It likewise infers federal plenary authority and its rather meager limits under the U.S. Constitution as a central premise of Indian law. In other words, Congress can pretty much exercise whatever powers it wants in relation to tribes. Hardly a shocking revelation, at least for tribal people.

Part III: Questioning Tribal Sovereignty

While we learn a great deal overall from the documents provided in WikiLeaks about U.S. surveillance of tribal governments, we learn far less than the fictionalized drama of a novel or film might suggest we would.

For instance, we do not learn who Nathan Brooks is, only that he is listed as the author of numerous reports dealing with diverse legislative issues from the American Law Division of the CRS. We learn that most of the reports concern tribal issues are issued from the American Law Division and seem to concern the character and scope of tribal legal standing and rights to sovereignty and self-determination–constitutionally, congressionally, and otherwise.

Further, we do not know who initiated a given report or to whom they are circulated, including but not only this report on the SCOTUS decision in United States v. Billy Jo Lara.

As a consequence, we can only muse as to the report’s intent and function.

2004, an election year, was a busy one for the members of the Senate Committee on Indian Affairs–including several who were up for re-election. It had generated or was partnered in producing 500 reports on its fiscal duties ending in 2004. There does not appear to be any specific bill or committee report that explicitly addresses issues for/at Spirit Lake Indian Reservation or Lara. Neither does it appear that the committee heard testimony concerning either Spirit Lake Indian Reservation or the Lara decision.

But clearly someone in Congress–on or off the Senate Committee–was concerned enough about the SCOTUS decision and its precedent to ask the CRS for a confidential student and analysis on the issues it raised. Was someone interested in or concerned about the American Indian Probate Reform Act of 2004 (amending the Indian Land Consolidation Act affecting ownership rights in trust or restricted lands)?
The issue, then, is not merely about the confidentiality of the request and the use of the report, but the short and long term goals of securing an analysis of tribal jurisdiction and due process on tribal lands.

Did these questions inform challenges later to the reauthorization of the Violence Against Women Act or the passage of the Tribal Law and Order Act, as questions challenging the scope of tribal jurisdiction over nonmember Indians and non-Indians on tribal lands? (See the Federalist Society, the FBI, the Red State, and Citizens for Equal Rights Alliance for an idea of how these arguments were made).

Was someone mobilizing evidence in support or challenge of tribal sovereignty? Shouldn’t such efforts, federally funded, be transparent to tribes?

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s