restricted access 181. United States v. Wheeler, March 22, 1978
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286 adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. . . . We recognize that some Indian tribal court systems have become increasingly sophisticated and resemble in many respects their state counterparts. We also acknowledge that with the passage of the Indian Civil Rights Act of 1968, which extends certain basic procedural rights to anyone tried in Indian tribal court, many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared . Finally, we are not unaware of the prevalence of non-Indian crime on today’s reservations which the tribes forcefully argue requires the ability to try non-Indians. But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try nonIndians . They have little relevance to the principles which lead us to conclude that Indian tribes do not have inherent jurisdiction to try and to punish non-Indians. . . . [435 U.S. Reports, 206–12.] 181. United States v. Wheeler March 22, 1978 The inherent sovereignty of an Indian tribe was affirmed by the Supreme Court in a case involving double jeopardy. A Navajo Indian prosecuted in a federal court had previously been convicted in a tribal court of a lesser included offense arising out of the same incident. The court found no double jeopardy because the tribal court and the federal court were arms of separate sovereigns. . . . . It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain “a separate people, with the power of regulating their internal and social relations.” . . . Their right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions . . . . The controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress? A The powers of Indian tribes are, in general , “inherent powers of a limited sovereignty which has never been extinguished.” F. Cohen , Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political communities . . . . Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws. Indian tribes are, of course, no longer “possessed of the full attributes of sovereignty .” . . . Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others. But our cases recognize that the Indian tribes have not given up their full sovereignty . . . . The sovereignty that the Indian tribes retain is of a unique and limited character . It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes 287 still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. . . . B It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that “[i...


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