U.S. v. LARA

Saw oral arguments at the Supreme Court for the first time today; the case was U.S. v. Lara, a case coming out of the 8th Circuit concerning the jurisdiction of native tribes over members of other tribes. (See here.) This is not an issue that I know very much about, but here are a few --disconnected and not necessarily very interesting -- things about the arguments that struck me:

• Lara's lawyer was attempting to argue the proposition that Congress cannot take away a power that the tribes exercise by virtue of inherent sovereignty and then give it back again qua power exercised by virtue of inherent sovereignty. Congress can only delegate powers that it has taken away from the tribe; it can't reestablish a sovereign power. I'm not sure on this, but as far as I understand it, the argument for this position would have to be that a sovereign power cannot be taken away without the sovereign's consent. The argument seems strange to me, since the normative and the factual are blended -- something could be normatively a sovereign power even though Congress takes it away from the tribes; if Congress then realizes the error of its ways, I see no reason to say that it can't "restore" the sovereign power. Justice Stevens seemed to be making an argument along this line. It's not clear to me that the concept of "dependent sovereign" couldn't be stretched to cover congressional restoration of an inherent sovereign power, though. Whether or not that concept makes sense is another question.


• The concept of sovereignty, however, is a strange concept because it seems to require a blend of the normative and the factual, something that I'm generally fine with but that I find particularly troubling here, for reasons that I'll have to think about. A sovereign power would seem on the one hand to be a power that is self-sufficient and self-sustaining in some way, at least in relations with other sovereign powers. But power, in and of itself, can also be unjustly exercised, or at least exercised in a way that can reasonably criticized as unjust. What to do when sovereign power is established in such a way? Can there be an unjust sovereign power?


• I doubt that there will be any explicit connection made between this case and the detention cases having to do with the war on terrorism, but I was struck by Scalia's doubts concerning the power of Congress to subject non-member U.S. citizens (or, as he put it, a "white man") to tribal jurisdiction by a simple act of statute. I'm not sure why this would be any worse than Congress's power to subject citizens to military tribunals, or, more precisely, the assertion of an implied delegation of such power to the executive branch. I am sure that there are all sorts of reason not to make the analogy, but it struck me as interesting nonetheless.

P.S.: Thanks to Michel for suggesting that we go. We were both pleasantly surprised that some of the questions were at least partially visibile (at least) for non-experts.