UNITED STATES v. LARA

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193 OCTOBER TERM, 2003
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UNITED STATES v. LARA
certiorari to the united states court of appeals for
the eighth circuit
No. 03–107. Argued January 21, 2004—Decided April 19, 2004
After respondent Lara, an Indian who is not a member of the Spirit Lake
Tribe (Tribe), ignored the Tribe’s order excluding him from its reserva-
tion, he struck one of the federal officers arresting him. He pleaded
guilty in Tribal Court to the crime of violence to a policeman. The
Federal Government then charged him with the federal crime of assault-
ing a federal officer. Lara claimed that, because key elements of that
crime mirrored elements of his tribal crime, he was protected by the
Double Jeopardy Clause. The Government countered that the Clause
does not bar successive prosecutions by separate sovereigns, and that
this “dual sovereignty” doctrine determined the outcome. The Govern-
ment noted that this Court has held that a tribe acts as a separate
sovereign in prosecuting its own members, United States v. Wheeler,
435 U. S. 313, 318, 322–323; that, after this Court ruled that a tribe
lacks sovereign authority to prosecute nonmember Indians, see Duro v.
Reina, 495 U. S. 676, 679, Congress specifically authorized such prosecu-
tions; and that, because this statute enlarges the tribes’ self-government
powers to include “the inherent power of Indian tribes . . . to exercise
criminal jurisdiction over all Indians,” 25 U. S. C. § 1301(2), the Tribe
here had exercised its own tribal authority, not delegated federal
authority. Accepting this argument, the Magistrate Judge rejected
Lara’s double jeopardy claim. The en banc Eighth Circuit reversed,
holding that the “dual sovereignty” doctrine did not apply because the
Tribal Court was exercising a federal prosecutorial power, and, thus,
the Double Jeopardy Clause barred the second prosecution.
Held: Because the Tribe acted in its capacity as a sovereign authority, the
Double Jeopardy Clause does not prohibit the Federal Government from
proceeding with the present prosecution for a discrete federal offense.
Pp. 199–210.
(a) Congress has the constitutional power to lift the restrictions on
the tribes’ criminal jurisdiction over nonmember Indians. Pp. 199–207.
(1) Section 1301(2) “recognize[s] and affirm[s]” in each tribe the “in-
herent power” to prosecute nonmember Indians, and its legislative his-
tory confirms that such was Congress’ intent. Thus, it seeks to adjust
the tribes’ status, relaxing restrictions, recognized in Duro, that the

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194 UNITED STATES v. LARA
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political branches had imposed on the tribes’ exercise of inherent prose-
cutorial power. Pp. 199–200.
(2) Several considerations lead to the conclusion that Congress has
the constitutional power to lift these restrictions. First, the Constitu-
tion, through the Indian Commerce and Treaty Clauses, grants Con-
gress “plenary and exclusive” powers to legislate in respect to Indian
tribes. E. g., Washington v. Confederated Bands and Tribes of Yakima
Nation, 439 U. S. 463, 470–471. Second, Congress, with this Court’s
approval, has interpreted these plenary grants of power as authorizing
it to enact legislation that both restricts tribal powers and, in turn,
relaxes those restrictions. Third, Congress’ statutory goal—to modify
the degree of autonomy enjoyed by a dependent sovereign that is not a
State—is not an unusual legislative objective. Fourth, Lara points to
no explicit language in the Constitution suggesting a limitation on Con-
gress’ institutional authority to relax tribal sovereignty restrictions pre-
viously imposed by the political branches. Fifth, the change at issue is
limited, concerning a power similar to the power to prosecute a tribe’s
own members, which this Court has called inherent. Sixth, concluding
that Congress has the power to relax the restrictions imposed by the
political branches on the tribes’ inherent prosecutorial authority is con-
sistent with this Court’s earlier cases. The holdings in Wheeler, supra,
at 326; Oliphant v. Suquamish Tribe, 435 U. S. 191, 209–210; and Duro,
supra, at 686, that the tribes’ power to prosecute nonmembers was di-
vested by treaties and Congress, reflected the Court’s view of the tribes’
retained sovereign status at the time of those decisions; but they did
not set forth constitutional limits prohibiting Congress from taking ac-
tions to modify or adjust that status. The Court there based its de-
scriptions of inherent tribal authority on the sources as they existed at
the time. Congressional legislation was one such important source, but
it is a source subject to change. When Duro, supra, at 686, like other
cases, referred to a statute that “delegated” power to the tribes, it sim-
ply did not consider whether a statute could constitutionally achieve the
same end by removing restrictions on the tribes’ inherent authority.
Thus, none of those cases can be read to hold that the Constitution
forbids Congress to change judicially made federal Indian law through
an amendment to § 1301(2). Wheeler, Oliphant, and Duro, then, are not
determinative because Congress has enacted a new statute, relaxing
restrictions on the bounds of the inherent tribal authority the United
States recognizes. Pp. 200–207.
(b) Lara’s additional arguments cannot help him win his double jeop-
ardy claim. This Court will not consider the merits of his due process
claim that his prosecution was invalid because the Indian Civil Rights
Act of 1968 does not guarantee counsel to an indigent criminal defend-

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ant. Proving that claim does not show that the source of the tribal
prosecution was federal power, something Lara must do to win his dou-
ble jeopardy claim. Like the due process claim, Lara’s argument that
the phrase “all Indians” in “inherent power . . . to exercise criminal
jurisdiction over all Indians” violates the Equal Protection Clause is
beside the point. And Lara simply repeats these due process and equal
protection arguments in a different form when he argues that the Duro
Court found the absence of certain constitutional safeguards, such as an
indigent defendant’s right to counsel, an important reason for concluding
that tribes lacked the “inherent power” to try nonmember Indians.
Pp. 207–209.
324 F. 3d 635, reversed.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, and Ginsburg, JJ., joined. Stevens, J.,
filed a concurring opinion, post, p. 210. Kennedy, J., post, p. 211, and
Thomas, J., post, p. 214, filed opinions concurring in the judgment. Sou-
ter, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 226.
Deputy Solicitor General Kneedler argued the cause for
the United States. On the briefs were Solicitor General
Olson, Assistant Attorney General Wray, Deputy Solici-
tor General Dreeben, Barbara McDowell, and Richard A.
Friedman.
Alexander F. Reichert, by appointment of the Court, 540
U. S. 980, argued the cause for respondent. With him on the
brief were Ronald A. Reichert and James E. Smith.*
*Briefs of amici curiae urging reversal were filed for the State of Idaho
et al. by Lawrence G. Wasden, Attorney General of Idaho, and Clay R.
Smith, Deputy Attorney General, and by the Attorneys General for their
respective States as follows: William H. Pryor, Jr., of Alabama, Richard
P. Ieyoub of Louisiana, Jon Bruning of Nebraska, Larry Long of South
Dakota, and Mark L. Shurtleff of Utah; for the State of Washington et al.
by Christine O. Gregoire, Attorney General of Washington, Robert K. Cos-
tello, Deputy Attorney General, and William Berggren Collins, Senior
Assistant Attorney General, and by the Attorneys General for their re-
spective States as follows: Terry Goddard of Arizona, Bill Lockyer of Cali-
fornia, Ken Salazar of Colorado, Michael A. Cox of Michigan, Mike Mc-
Grath of Montana, Patricia A. Madrid of New Mexico, and Hardy Myers
of Oregon; for the Spirit Lake Sioux Tribe of North Dakota et al. by Tracy
Labin, Richard Guest, and Charles A. Hobbs; and for the National Con-

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196 UNITED STATES v. LARA
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
This case concerns a congressional statute “recogniz[ing]
and affirm[ing]” the “inherent” authority of a tribe to bring
a criminal misdemeanor prosecution against an Indian who
is not a member of that tribe—authority that this Court pre-
viously held a tribe did not possess. Compare 25 U. S. C.
§ 1301(2) with Duro v. Reina, 495 U. S. 676 (1990). We must
decide whether Congress has the constitutional power to
relax restrictions that the political branches have, over time,
placed on the exercise of a tribe’s inherent legal authority.
We conclude that Congress does possess this power.
I
Respondent Billy Jo Lara is an enrolled member of the
Turtle Mountain Band of Chippewa Indians in north-central
North Dakota. He married a member of a different tribe,
the Spirit Lake Tribe, and lived with his wife and children
on the Spirit Lake Reservation, also located in North Da-
kota. See Brief for Spirit Lake Sioux Tribe of North Da-
kota et al. as Amici Curiae 4–5. After several incidents of
serious misconduct, the Spirit Lake Tribe issued an order
excluding him from the reservation. Lara ignored the
order; federal officers stopped him; and he struck one of the
arresting officers. 324 F. 3d 635, 636 (CA8 2003) (en banc).
The Spirit Lake Tribe subsequently prosecuted Lara in
the Spirit Lake Tribal Court for “violence to a policeman.”
Ibid. Lara pleaded guilty and, in respect to that crime,
served 90 days in jail. See ibid.; Tr. of Oral Arg. 28.
gress of American Indians by Carter G. Phillips, Virginia A. Seitz, and
Riyaz A. Kanji.
Briefs of amici curiae urging affirmance were filed for Lewis County,
Idaho, et al. by Tom D. Tobin and Kimron Torgerson; for the Citizens
Equal Rights Foundation by Randy V. Thompson; and for the National
Association of Criminal Defense Lawyers by Virginia G. Villa and Joshua
L. Dratel.
Jon Metropoulos filed a brief of amici curiae for Thomas Lee Morris
et al.

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After Lara’s tribal conviction, the Federal Government
charged Lara in the Federal District Court for the District
of North Dakota with the federal crime of assaulting a fed-
eral officer. 324 F. 3d, at 636; 18 U. S. C. § 111(a)(1). Key
elements of this federal crime mirror elements of the tribal
crime of “violence to a policeman.” See Brief for United
States 7. And this similarity between the two crimes would
ordinarily have brought Lara within the protective reach
of the Double Jeopardy Clause. U. S. Const., Amdt. 5 (the
Government may not “subject” any person “for the same of-
fence to be twice put in jeopardy of life or limb”); 324 F. 3d,
at 636. But the Government, responding to Lara’s claim
of double jeopardy, pointed out that the Double Jeopardy
Clause does not bar successive prosecutions brought by sepa-
rate sovereigns, and it argued that this “dual sovereignty”
doctrine determined the outcome here. See Heath v. Ala-
bama, 474 U. S. 82, 88 (1985) (the Double Jeopardy Clause
reflects the “common-law conception of crime as an offense
against the sovereignty of the government”; when “a defend-
ant in a single act violates the ‘peace and dignity’ of two
sovereigns by breaking the laws of each, he has committed
two distinct ‘offences’ ”).
The Government noted that this Court has held that an
Indian tribe acts as a separate sovereign when it prosecutes
its own members. United States v. Wheeler, 435 U. S. 313,
318, 322–323 (1978) (a tribe’s “sovereign power to punish
tribal offenders,” while subject to congressional “defea-
sance,” remains among those “ ‘inherent powers of a limited
sovereignty which has never been extinguished’ ” (empha-
sis added and deleted)). The Government recognized, of
course, that Lara is not one of the Spirit Lake Tribe’s own
members; it also recognized that, in Duro v. Reina, supra,
this Court had held that a tribe no longer possessed inherent
or sovereign authority to prosecute a “nonmember Indian.”
Id., at 682. But it pointed out that, soon after this Court
decided Duro, Congress enacted new legislation specifically

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authorizing a tribe to prosecute Indian members of a differ-
ent tribe. See Act of Nov. 5, 1990, §§ 8077(b)–(d), 104 Stat.
1892–1893 (temporary legislation until September 30, 1991);
Act of Oct. 28, 1991, 105 Stat. 646 (permanent legislation).
That new statute, in permitting a tribe to bring certain
tribal prosecutions against nonmember Indians, does not
purport to delegate the Federal Government’s own federal
power. Rather, it enlarges the tribes’ own “ ‘powers of self-
government’ ” to include “the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians,” including nonmembers. 25
U. S. C. § 1301(2) (emphasis added).
In the Government’s view, given this statute, the Tribe,
in prosecuting Lara, had exercised its own inherent tribal
authority, not delegated federal authority; hence the “dual
sovereignty” doctrine applies, Heath, supra, at 88; and since
the two prosecutions were brought by two different sover-
eigns, the second, federal, prosecution does not violate the
Double Jeopardy Clause.
The Federal Magistrate Judge accepted the Government’s
argument and rejected Lara’s double jeopardy claim. 324
F. 3d, at 636–637. An Eighth Circuit panel agreed with the
Magistrate Judge. 294 F. 3d 1004 (2002). But the en banc
Court of Appeals, by a vote of 7 to 4, reached a different
conclusion. 324 F. 3d 635 (2003). It held the Tribal Court,
in prosecuting Lara, was exercising a federal prosecutorial
power; hence the “dual sovereignty” doctrine does not apply;
and the Double Jeopardy Clause bars the second prosecution.
Id., at 640. The four dissenting judges, agreeing with the
Federal Government, concluded that the Tribal Court had
exercised inherent tribal power in prosecuting Lara; hence
the “dual sovereignty” doctrine applies and allows the sec-
ond, federal, prosecution. Id., at 641 (opinion of M. Arnold,
J.).
Because the Eighth Circuit and Ninth Circuit have
reached different conclusions about the new statute, we

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granted certiorari. Cf. United States v. Enas, 255 F. 3d 662
(CA9 2001) (en banc), cert. denied, 534 U. S. 1115 (2002). We
now reverse the Eighth Circuit.
II
We assume, as do the parties, that Lara’s double jeopardy
claim turns on the answer to the “dual sovereignty” ques-
tion. What is “the source of [the] power to punish” non-
member Indian offenders, “inherent tribal sovereignty” or
delegated federal authority? Wheeler, supra, at 322 (em-
phasis added).
We also believe that Congress intended the former answer.
The statute says that it “recognize[s] and affirm[s]” in each
tribe the “inherent” tribal power (not delegated federal
power) to prosecute nonmember Indians for misdemeanors.
See supra, at 198; Appendix, infra (emphasis added). And
the statute’s legislative history confirms that such was Con-
gress’ intent. See, e. g., H. R. Conf. Rep. No. 102–261,
pp. 3–4 (1991) (“The Committee of the Conference notes that
. . . this legislation is not a delegation of this jurisdiction but
a clarification of the status of tribes as domestic dependent
nations”); accord, H. R. Rep. No. 102–61, p. 7 (1991); see also
S. Rep. No. 102–168, p. 4 (1991) (“recogniz[ing] and reaf-
firm[ing] the inherent authority of tribal governments to ex-
ercise criminal jurisdiction over all Indians”); 137 Cong. Rec.
9446 (1991) (remarks of Sen. Inouye) (the “premise [of the
legislation] is that the Congress affirms the inherent jurisdic-
tion of tribal governments over nonmember Indians” (em-
phasis added)); id., at 10712–10714 (remarks of Rep. Miller,
House manager of the bill) (the statute “is not a delegation
of authority but an affirmation that tribes retain all rights
not expressly taken away” and the bill “recognizes an inher-
ent tribal right which always existed”); id., at 10713 (re-
marks of Rep. Richardson, a sponsor of the amendment) (the
legislation “reaffirms” tribes’ power).

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Thus the statute seeks to adjust the tribes’ status. It re-
laxes the restrictions, recognized in Duro, that the political
branches had imposed on the tribes’ exercise of inherent
prosecutorial power. The question before us is whether the
Constitution authorizes Congress to do so. Several consid-
erations lead us to the conclusion that Congress does possess
the constitutional power to lift the restrictions on the tribes’
criminal jurisdiction over nonmember Indians as the statute
seeks to do.
First, the Constitution grants Congress broad general
powers to legislate in respect to Indian tribes, powers that
we have consistently described as “plenary and exclusive.”
E. g., Washington v. Confederated Bands and Tribes of Yak-
ima Nation, 439 U. S. 463, 470–471 (1979); Negonsott v. Sam-
uels, 507 U. S. 99, 103 (1993); see Wheeler, 435 U. S., at 323;
see also W. Canby, American Indian Law 2 (3d ed. 1998)
(hereinafter Canby) (“[T]he independence of the tribes is
subject to exceptionally great powers of Congress to regu-
late and modify the status of the tribes”).
This Court has traditionally identified the Indian Com-
merce Clause, U. S. Const., Art. I, § 8, cl. 3, and the Treaty
Clause, Art. II, § 2, cl. 2, as sources of that power. E. g.,
Morton v. Mancari, 417 U. S. 535, 552 (1974); McClanahan
v. Arizona Tax Comm’n, 411 U. S. 164, 172, n. 7 (1973); see
also Canby 11–12; F. Cohen, Handbook of Federal Indian
Law 209–210 (1982 ed.) (hereinafter Cohen) (also mentioning,
inter alia, the Property Clause). The “central function of
the Indian Commerce Clause,” we have said, “is to provide
Congress with plenary power to legislate in the field of In-
dian affairs.” Cotton Petroleum Corp. v. New Mexico, 490
U. S. 163, 192 (1989); see also, e. g., Ramah Navajo School
Bd., Inc. v. Bureau of Revenue of N. M., 458 U. S. 832, 837
(1982) (“broad power” under the Indian Commerce Clause);
White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 142
(1980) (same, and citing Wheeler, supra, at 322–323).

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The treaty power does not literally authorize Congress to
act legislatively, for it is an Article II power authorizing the
President, not Congress, “to make Treaties.” U. S. Const.,
Art. II, § 2, cl. 2. But, as Justice Holmes pointed out, treat-
ies made pursuant to that power can authorize Congress to
deal with “matters” with which otherwise “Congress could
not deal.” Missouri v. Holland, 252 U. S. 416, 433 (1920);
see also L. Henkin, Foreign Affairs and the U. S. Constitu-
tion 72 (2d ed. 1996). And for much of the Nation’s history,
treaties, and legislation made pursuant to those treaties, gov-
erned relations between the Federal Government and the
Indian tribes. See, e. g., Cohen 109–111; F. Prucha, Ameri-
can Indian Policy in the Formative Years 44–49 (1962).
We recognize that in 1871 Congress ended the practice of
entering into treaties with the Indian tribes. 25 U. S. C. § 71
(stating that tribes are not entities “with whom the United
States may contract by treaty”). But the statute saved ex-
isting treaties from being “invalidated or impaired,” ibid.,
and this Court has explicitly stated that the statute “in no
way affected Congress’ plenary powers to legislate on prob-
lems of Indians,” Antoine v. Washington, 420 U. S. 194, 203
(1975) (emphasis deleted).
Moreover, “at least during the first century of America’s
national existence . . . Indian affairs were more an aspect
of military and foreign policy than a subject of domestic or
municipal law.” Cohen 208 (footnotes omitted). Insofar as
that is so, Congress’ legislative authority would rest in part,
not upon “affirmative grants of the Constitution,” but upon
the Constitution’s adoption of preconstitutional powers nec-
essarily inherent in any Federal Government, namely, pow-
ers that this Court has described as “necessary concomitants
of nationality.” United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 315–322 (1936); Henkin, supra, at 14–22,
63–72; cf. 2 J. Continental Cong. 174–175 (1775) (W. Ford ed.
1905) (creating departments of Indian affairs, appointing In-
dian commissioners, and noting the great importance of “se-

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curing and preserving the friendship of the Indian Nations”);
Worcester v. Georgia, 6 Pet. 515, 557 (1832) (“The treaties
and laws of the United States contemplate . . . that all inter-
course with [Indians] shall be carried on exclusively by the
government of the union”).
Second, Congress, with this Court’s approval, has inter-
preted the Constitution’s “plenary” grants of power as au-
thorizing it to enact legislation that both restricts and, in
turn, relaxes those restrictions on tribal sovereign authority.
From the Nation’s beginning Congress’ need for such legisla-
tive power would have seemed obvious. After all, the Gov-
ernment’s Indian policies, applicable to numerous tribes with
diverse cultures, affecting billions of acres of land, of neces-
sity would fluctuate dramatically as the needs of the Nation
and those of the tribes changed over time. See, e. g., Cohen
48. And Congress has in fact authorized at different times
very different Indian policies (some with beneficial results
but many with tragic consequences). Congressional policy,
for example, initially favored “Indian removal,” then “assimi-
lation” and the breakup of tribal lands, then protection of the
tribal land base (interrupted by a movement toward greater
state involvement and “termination” of recognized tribes);
and it now seeks greater tribal autonomy within the frame-
work of a “government-to-government relationship” with
federal agencies. 59 Fed. Reg. 22951 (1994); see also 19
Weekly Comp. of Pres. Doc. 98 (1983) (President Reagan re-
affirming the rejection of termination as a policy and an-
nouncing the goal of decreasing tribal dependence on the
Federal Government); see 25 U. S. C. § 450a(b) (congressional
commitment to “the development of strong and stable tribal
governments”). See generally Cohen 78–202 (describing
this history); Canby 13–32 (same).
Such major policy changes inevitably involve major
changes in the metes and bounds of tribal sovereignty. The
1871 statute, for example, changed the status of an Indian
tribe from a “powe[r] . . . capable of making treaties” to a

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“power with whom the United States may [not] contract
by treaty.” Compare Worcester, supra, at 559, with 25
U. S. C. § 71.
One can readily find examples in congressional decisions to
recognize, or to terminate, the existence of individual tribes.
See United States v. Holliday, 3 Wall. 407, 419 (1866) (“If by
[the political branches] those Indians are recognized as a
tribe, this court must do the same”); Menominee Tribe v.
United States, 391 U. S. 404 (1968) (examining the rights of
Menominee Indians following the termination of their Tribe).
Indeed, Congress has restored previously extinguished
tribal status—by re-recognizing a Tribe whose tribal exist-
ence it previously had terminated. 25 U. S. C. §§ 903–903f
(restoring the Menominee Tribe); cf. United States v. Long,
324 F. 3d 475 (CA7) (upholding against double jeopardy chal-
lenge successive prosecutions by the restored Menominee
Tribe and the Federal Government), cert. denied, 540 U. S.
822 (2003). Congress has advanced policies of integration
by conferring United States citizenship upon all Indians. 8
U. S. C. § 1401(b). Congress has also granted tribes greater
autonomy in their inherent law enforcement authority (in re-
spect to tribal members) by increasing the maximum crimi-
nal penalties tribal courts may impose. § 4217, 100 Stat.
3207–146, codified at 25 U. S. C. § 1302(7) (raising the maxi-
mum from “a term of six months and a fine of $500” to
“a term of one year and a fine of $5,000”).
Third, Congress’ statutory goal—to modify the degree of
autonomy enjoyed by a dependent sovereign that is not a
State—is not an unusual legislative objective. The political
branches, drawing upon analogous constitutional authority,
have made adjustments to the autonomous status of other
such dependent entities—sometimes making far more radical
adjustments than those at issue here. See, e. g., Hawaii—
Hawaii v. Mankichi, 190 U. S. 197, 209–211 (1903) (describing
annexation of Hawaii by joint resolution of Congress and the
maintenance of a “Republic of Hawaii” until formal incorpo-

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ration by Congress); Northern Mariana Islands—note fol-
lowing 48 U. S. C. § 1801 (“in accordance with the [United
Nations] trusteeship agreement . . . [establishing] a self-
governing commonwealth . . . in political union with and
under the sovereignty of the United States”); the Philip-
pines—22 U. S. C. § 1394 (congressional authorization for the
President to “withdraw and surrender all right of . . . sover-
eignty” and to “recognize the independence of the Philippine
Islands as a separate and self-governing nation”); Presiden-
tial Proclamation No. 2695, 60 Stat. 1352 (so proclaiming);
Puerto Rico—Act of July 3, 1950, 64 Stat. 319 (“[T]his Act is
now adopted in the nature of a compact so that people of
Puerto Rico may organize a government pursuant to a con-
stitution of their own adoption”); P. R. Const., Art. I, § 1
(“Estado Libre Asociado de Puerto Rico”); see also Cor-
dova & Simonpietri Ins. Agency Inc. v. Chase Manhat-
tan Bank N. A., 649 F. 2d 36, 39–41 (CA1 1981) (describing
various adjustments to Puerto Rican autonomy through con-
gressional legislation since 1898).
Fourth, Lara points to no explicit language in the Consti-
tution suggesting a limitation on Congress’ institutional au-
thority to relax restrictions on tribal sovereignty previously
imposed by the political branches. But cf. Part III, infra.
Fifth, the change at issue here is a limited one. It con-
cerns a power similar in some respects to the power to prose-
cute a tribe’s own members—a power that this Court has
called “inherent.” Wheeler, 435 U. S., at 322–323. In large
part it concerns a tribe’s authority to control events that
occur upon the tribe’s own land. See United States v. Ma-
zurie, 419 U. S. 544, 557 (1975) (“Indian tribes are unique
aggregations possessing attributes of sovereignty over both
their members and their territory” (emphasis added)); see
also, e. g., S. Rep. No. 102–168, at 21 (remarks of P. Hugen).
And the tribes’ possession of this additional criminal juris-
diction is consistent with our traditional understanding of
the tribes’ status as “domestic dependent nations.” Chero-

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kee Nation v. Georgia, 5 Pet. 1, 17 (1831); see also id., at 16
(describing tribe as “a distinct political society, separated
from others, capable of managing its own affairs and govern-
ing itself ”). Consequently, we are not now faced with a
question dealing with potential constitutional limits on con-
gressional efforts to legislate far more radical changes in
tribal status. In particular, this case involves no interfer-
ence with the power or authority of any State. Nor do we
now consider the question whether the Constitution’s Due
Process or Equal Protection Clauses prohibit tribes from
prosecuting a nonmember citizen of the United States. See
Part III, infra.
Sixth, our conclusion that Congress has the power to relax
the restrictions imposed by the political branches on the
tribes’ inherent prosecutorial authority is consistent with
our earlier cases. True, the Court held in those cases that
the power to prosecute nonmembers was an aspect of the
tribes’ external relations and hence part of the tribal sover-
eignty that was divested by treaties and by Congress.
Wheeler, supra, at 326; Oliphant v. Suquamish Tribe, 435
U. S. 191, 209–210 (1978); Duro, 495 U. S., at 686. But these
holdings reflect the Court’s view of the tribes’ retained sov-
ereign status as of the time the Court made them. They
did not set forth constitutional limits that prohibit Congress
from changing the relevant legal circumstances, i. e., from
taking actions that modify or adjust the tribes’ status.
To the contrary, Oliphant and Duro make clear that the
Constitution does not dictate the metes and bounds of tribal
autonomy, nor do they suggest that the Court should
second-guess the political branches’ own determinations. In
Oliphant, the Court rested its conclusion about inherent
tribal authority to prosecute tribe members in large part
upon “the commonly shared presumption of Congress, the
Executive Branch, and lower federal courts,” a presump-
tion which, “[w]hile not conclusive[,] carries considerable
weight.” 435 U. S., at 206. The Court pointed out that

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206 UNITED STATES v. LARA
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“ ‘Indian law’ draws principally upon the treaties drawn and
executed by the Executive Branch and legislation passed
by Congress.” Ibid. (emphasis added). It added that those
“instruments . . . form the backdrop for the intricate web of
judicially made Indian law.” Ibid. (emphasis added).
Similarly, in Duro, the Court drew upon a host of different
sources in order to reach its conclusion that a tribe does not
possess the inherent power to prosecute a nonmember. The
Court referred to historic practices, the views of experts, the
experience of forerunners of modern tribal courts, and the
published opinions of the Solicitor of the Department of the
Interior. 495 U. S., at 689–692. See also, e. g., Nevada v.
Hicks, 533 U. S. 353, 361, n. 4 (2001) (“Our holding in Worces-
ter must be considered in light of . . . the 1828 treaty” (alter-
ations and internal quotation marks omitted)); South Dakota
v. Bourland, 508 U. S. 679, 695 (1993) (“Having concluded
that Congress clearly abrogated the Tribe’s pre-existing reg-
ulatory control over non-Indian hunting and fishing, we find
no evidence in the relevant treaties or statutes that Congress
intended to allow the Tribes to assert regulatory jurisdiction
over these lands pursuant to inherent sovereignty” (empha-
sis added)); National Farmers Union Ins. Cos. v. Crow
Tribe, 471 U. S. 845, 855–856 (1985) (“[T]he existence and
extent of a tribal court’s jurisdiction will require [inter alia]
a detailed study of relevant statutes, Executive Branch pol-
icy as embodied in treaties and elsewhere, and administra-
tive or judicial decisions”); United States v. Kagama, 118
U. S. 375, 382–383 (1886) (characterizing Ex parte Crow Dog,
109 U. S. 556, 570 (1883), as resting on extant treaties and
statutes and recognizing congressional overruling of Crow
Dog).
Thus, the Court in these cases based its descriptions of
inherent tribal authority upon the sources as they existed
at the time the Court issued its decisions. Congressional
legislation constituted one such important source. And that
source was subject to change. Indeed Duro itself antici-

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207 Cite as: 541 U. S. 193 (2004)
Opinion of the Court
pated change by inviting interested parties to “address the
problem [to] Congress.” 495 U. S., at 698.
We concede that Duro, like several other cases, referred
only to the need to obtain a congressional statute that “dele-
gated” power to the tribes. See id., at 686 (emphasis added);
Bourland, supra, at 695, n. 15; Montana v. United States,
450 U. S. 544, 564 (1981); Mazurie, 419 U. S., at 556–557.
But in so stating, Duro (like the other cases) simply did not
consider whether a statute, like the present one, could consti-
tutionally achieve the same end by removing restrictions on
the tribes’ inherent authority. Consequently we do not read
any of these cases as holding that the Constitution forbids
Congress to change “judicially made” federal Indian law
through this kind of legislation. Oliphant, supra, at 206;
cf. County of Oneida v. Oneida Indian Nation of N. Y., 470
U. S. 226, 233–237 (1985) (recognizing the “federal common
law” component of Indian rights, which “common law” fed-
eral courts develop as “a ‘necessary expedient’ when Con-
gress has not ‘spoken to a particular issue’ ” (quoting Mil-
waukee v. Illinois, 451 U. S. 304, 313–315 (1981))); id., at 313
(“[F]ederal common law is ‘subject to the paramount author-
ity of Congress’ ” (quoting New Jersey v. New York, 283 U. S.
336, 348 (1931))).
Wheeler, Oliphant, and Duro, then, are not determinative
because Congress has enacted a new statute, relaxing re-
strictions on the bounds of the inherent tribal authority that
the United States recognizes. And that fact makes all the
difference.
III
Lara makes several additional arguments. First, he
points out that the Indian Civil Rights Act of 1968, 82 Stat.
77, lacks certain constitutional protections for criminal de-
fendants, in particular the right of an indigent defendant to
counsel. See 25 U. S. C. § 1302. And he argues that the
Due Process Clause forbids Congress to permit a tribe to
prosecute a nonmember Indian citizen of the United States

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208 UNITED STATES v. LARA
Opinion of the Court
in a forum that lacks this protection. See Argersinger v.
Hamlin, 407 U. S. 25 (1972) (Constitution guarantees indi-
gents counsel where imprisonment possible).
Lara’s due process argument, however, suffers from a criti-
cal structural defect. To explain the defect, we contrast this
argument with Lara’s “lack of constitutional power” argu-
ment discussed in Part II, supra. Insofar as that “constitu-
tional power” argument might help Lara win his double
jeopardy claim, it must proceed in four steps:
Step One: Congress does not possess the constitutional
power to enact a statute that modifies tribal power by “rec-
ogniz[ing] and affirm[ing]” the tribes’ “inherent” authority
to prosecute nonmember Indians. 25 U. S. C. § 1301(2).
Step Two: Consequently, the word “inherent” in the stat-
ute’s phrase “inherent power” is void.
Step Three: The word “inherent” is severable from the rest
of the statute (as are related words). The remainder of the
statute is valid without those words, but it then delegates
federal power to the tribe to conduct the prosecution.
Step Four: Consequently, the Tribe’s prosecution of Lara
was federal. The current, second, prosecution is also fed-
eral. Hence Lara wins his Double Jeopardy Clause claim,
the subject of the present proceeding.
Although the Eighth Circuit accepted this argument, 324
F. 3d, at 640, we reject Step One of the argument, Part
II, supra. That rejection, without more, invalidates the
argument.
Lara’s due process argument, however, is significantly dif-
ferent. That argument (if valid) would show that any
prosecution of a nonmember Indian under the statute is in-
valid; so Lara’s tribal prosecution would be invalid, too.
Showing Lara’s tribal prosecution was invalid, however, does
not show that the source of that tribal prosecution was fed-
eral power (showing that a state prosecution violated the
Due Process Clause does not make that prosecution federal).

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But without that “federal power” showing, Lara cannot win
his double jeopardy claim here. Hence, we need not, and we
shall not, consider the merits of Lara’s due process claim.
Other defendants in tribal proceedings remain free to raise
that claim should they wish to do so. See 25 U. S. C. § 1303
(vesting district courts with jurisdiction over habeas writs
from tribal courts).
Second, Lara argues that Congress’ use of the words “all
Indians,” in the statutory phrase “inherent power . . . to ex-
ercise criminal jurisdiction over all Indians,” violates the
Equal Protection Clause. He says that insofar as the words
include nonmember Indians within the statute’s scope (while
excluding all non-Indians) the statute is race based and with-
out justification. Like the due process argument, however,
this equal protection argument is simply beside the point,
therefore we do not address it. At best for Lara, the argu-
ment (if valid) would show, not that Lara’s first conviction
was federal, but that it was constitutionally defective. And
that showing cannot help Lara win his double jeopardy
claim.
Third, Lara points out that the Duro Court found the ab-
sence of certain constitutional safeguards, for example, the
guarantee of an indigent’s right to counsel, as an important
reason for concluding that tribes lacked the “inherent
power” to try a “group of citizens” (namely, nonmember Indi-
ans) who were not “include[d]” in those “political bodies.”
495 U. S., at 693–694. In fact, Duro says the following: “We
hesitate to adopt a view of tribal sovereignty that would
single out another group of citizens, nonmember Indians, for
trial by political bodies that do not include them.” Id., at
693. But this argument simply repeats the due process and
equal protection arguments rejected above in a somewhat
different form. Since precisely the same problem would
exist were we to treat the congressional statute as delegat-
ing federal power, this argument helps Lara no more than
the others.

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210 UNITED STATES v. LARA
Stevens, J., concurring
IV
For these reasons, we hold, with the reservations set forth
in Part III, supra, that the Constitution authorizes Congress
to permit tribes, as an exercise of their inherent tribal au-
thority, to prosecute nonmember Indians. We hold that
Congress exercised that authority in writing this statute.
That being so, the Spirit Lake Tribe’s prosecution of Lara
did not amount to an exercise of federal power, and the Tribe
acted in its capacity of a separate sovereign. Consequently,
the Double Jeopardy Clause does not prohibit the Federal
Government from proceeding with the present prosecution
for a discrete federal offense. Heath, 474 U. S., at 88.
The contrary judgment of the Eighth Circuit is
Reversed.
APPENDIX TO OPINION OF THE COURT
Title 25 U. S. C. § 1301(2), as amended by Act of Oct. 28,
1991, 105 Stat. 646, provides:
“ ‘[P]owers of self-government’ means and includes all gov-
ernmental powers possessed by an Indian tribe, executive,
legislative, and judicial, and all offices, bodies, and tribunals
by and through which they are executed, including courts of
Indian offenses; and means the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians.”
Justice Stevens, concurring.
While I join the Court’s opinion without reservation, the
additional writing by my colleagues prompts this comment.
The inherent sovereignty of the Indian tribes has a historical
basis that merits special mention. They governed territory
on this continent long before Columbus arrived. In con-
trast, most of the States were never actually independent
sovereigns, and those that were enjoyed that independent

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211 Cite as: 541 U. S. 193 (2004)
Kennedy, J., concurring in judgment
status for only a few years. Given the fact that Congress
can authorize the States to exercise—as their own—inherent
powers that the Constitution has otherwise placed off limits,
see, e. g., Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 437–
438 (1946), I find nothing exceptional in the conclusion that
it can also relax restrictions on an ancient inherent tribal
power.
Justice Kennedy, concurring in the judgment.
The amendment to the Indian Civil Rights Act of 1968
(ICRA) enacted after the Court’s decision in Duro v. Reina,
495 U. S. 676 (1990), demonstrates Congress’ clear intention
to restore to the tribes an inherent sovereign power to pros-
ecute nonmember Indians. Congress was careful to rely on
the theory of inherent sovereignty, and not on a delegation.
Justice Souter’s position that it was a delegation nonethe-
less, post, at 231 (dissenting opinion), is by no means without
support, but I would take Congress at its word. Under that
view, the first prosecution of Lara was not a delegated fed-
eral prosecution, and his double jeopardy argument must
fail. That is all we need say to resolve this case.
The Court’s analysis goes beyond this narrower rationale
and culminates in a surprising holding: “For these reasons,
we hold . . . that the Constitution authorizes Congress to
permit tribes, as an exercise of their inherent tribal author-
ity, to prosecute nonmember Indians.” Ante, at 210. The
Court’s holding is on a point of major significance to our un-
derstanding and interpretation of the Constitution; and, in
my respectful view, it is most doubtful.
Were we called upon to decide whether Congress has this
power, it would be a difficult question. Our decision in
United States v. Wheeler, 435 U. S. 313 (1978), which the
Court cites today but discusses very little, is replete with
references to the inherent authority of the tribe over its own
members. As I read that case, it is the historic possession
of inherent power over “the relations among members of a

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212 UNITED STATES v. LARA
Kennedy, J., concurring in judgment
tribe” that is the whole justification for the limited tribal
sovereignty the Court there recognized. Id., at 326. It is
a most troubling proposition to say that Congress can relax
the restrictions on inherent tribal sovereignty in a way that
extends that sovereignty beyond those historical limits.
Cf., e. g., Strate v. A–1 Contractors, 520 U. S. 438, 445–446
(1997) (“In the main . . . ‘the inherent sovereign powers of
an Indian tribe’—those powers a tribe enjoys apart from ex-
press provision by treaty or statute—‘do not extend to the
activities of nonmembers of the tribe’ ” (quoting Montana v.
United States, 450 U. S. 544, 565 (1981))). To conclude that
a tribe’s inherent sovereignty allows it to exercise jurisdic-
tion over a nonmember in a criminal case is to enlarge the
“unique and limited character” of the inherent sovereignty
that Wheeler recognized. 435 U. S., at 323.
Lara, after all, is a citizen of the United States. To hold
that Congress can subject him, within our domestic borders,
to a sovereignty outside the basic structure of the Constitu-
tion is a serious step. The Constitution is based on a theory
of original, and continuing, consent of the governed. Their
consent depends on the understanding that the Constitution
has established the federal structure, which grants the citi-
zen the protection of two governments, the Nation and the
State. Each sovereign must respect the proper sphere of
the other, for the citizen has rights and duties as to both.
See U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838–
839 (1995) (Kennedy, J., concurring). Here, contrary to this
design, the National Government seeks to subject a citizen
to the criminal jurisdiction of a third entity to be tried for
conduct occurring wholly within the territorial borders of
the Nation and one of the States. This is unprecedented.
There is a historical exception for Indian tribes, but only to
the limited extent that a member of a tribe consents to be
subjected to the jurisdiction of his own tribe. See Duro,
supra, at 693. The majority today reaches beyond that lim-
ited exception.

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Kennedy, J., concurring in judgment
The Court resolves, or perhaps avoids, the basic question
of the power of the Government to yield authority inside the
domestic borders over citizens to a third sovereign by using
the euphemistic formulation that in amending the ICRA
Congress merely relaxed restrictions on the tribes. See
ante, at 196, 200, 202, 205, and 207. There is no language in
the statute, or the legislative history, that justifies this un-
usual phrase, cf. 25 U. S. C. § 1301(2) (referring to “the inher-
ent power of Indian tribes, hereby recognized and affirmed,
to exercise criminal jurisdiction over all Indians”); and, in
my respectful view, it obscures what is actually at stake in
this case. The terms of the statute are best understood as
a grant or cession from Congress to the tribes, and it should
not be doubted that what Congress has attempted to do is
subject American citizens to the authority of an extraconsti-
tutional sovereign to which they had not previously been
subject. The relaxing-restrictions formulation is further
belied by the involvement of the United States in all aspects
of the tribal prosecution of a nonmember Indian. Federal
law defines the separate tribes, § 1301, the broader class of
“Indians,” the maximum penalty which the tribes may im-
pose for crimes, and the procedural protections to which de-
fendants are entitled in the trials, § 1302. This does not
indicate the sort of detachment from the exercise of pros-
ecutorial authority implicit in the description of Congress’
Act as having relaxed restrictions.
In addition to trying to evade the important structural
question by relying on the verbal formula of relaxation, the
Court also tries to bolster its position by noting that due
process and equal protection claims are still reserved.
Ante, at 210. That is true, but it ignores the elementary
principle that the constitutional structure was in place before
the Fifth and Fourteenth Amendments were adopted. To
demean the constitutional structure and the consent upon
which it rests by implying they are wholly dependent for
their vindication on the Due Process and Equal Protection

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214 UNITED STATES v. LARA
Thomas, J., concurring in judgment
Clauses is a further, unreasoned holding of serious import.
The political freedom guaranteed to citizens by the federal
structure is a liberty both distinct from and every bit as
important as those freedoms guaranteed by the Bill of
Rights. Cf. Clinton v. City of New York, 524 U. S. 417, 449–
453 (1998) (Kennedy, J., concurring). The individual citizen
has an enforceable right to those structural guarantees of
liberty, a right which the majority ignores. Perhaps the
Court’s holding could be justified by an argument that by
enrolling in one tribe Lara consented to the criminal jurisdic-
tion of other tribes, but the Court does not mention the
point. And, in all events, we should be cautious about
adopting that fiction.
The present case, however, does not require us to address
these difficult questions of constitutional dimension. Con-
gress made it clear that its intent was to recognize and affirm
tribal authority to try Indian nonmembers as inherent in
tribal status. The proper occasion to test the legitimacy of
the Tribe’s authority, that is, whether Congress had the
power to do what it sought to do, was in the first, tribal
proceeding. There, however, Lara made no objection to the
Tribe’s authority to try him. In the second, federal proceed-
ing, because the express rationale for the Tribe’s authority
to try Lara—whether legitimate or not—was inherent sover-
eignty, not delegated federal power, there can be no double
jeopardy violation. Cf. Grafton v. United States, 206 U. S.
333, 345 (1907) (“[B]efore a person can be said to have been
put in jeopardy of life or limb the court in which he was
acquitted or convicted must have had jurisdiction to try him
for the offense charged”). For that reason, I concur in the
judgment.
Justice Thomas, concurring in the judgment.
As this case should make clear, the time has come to re-
examine the premises and logic of our tribal sovereignty
cases. It seems to me that much of the confusion reflected

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Thomas, J., concurring in judgment
in our precedent arises from two largely incompatible and
doubtful assumptions. First, Congress (rather than some
other part of the Federal Government) can regulate virtually
every aspect of the tribes without rendering tribal sover-
eignty a nullity. See, e. g., United States v. Wheeler, 435
U. S. 313, 319 (1978). Second, the Indian tribes retain inher-
ent sovereignty to enforce their criminal laws against their
own members. See, e. g., id., at 326. These assumptions,
which I must accept as the case comes to us, dictate the
outcome in this case, and I therefore concur in the judgment.
I write separately principally because the Court fails to
confront these tensions, a result that flows from the Court’s
inadequate constitutional analysis. I cannot agree with the
Court, for instance, that the Constitution grants to Congress
plenary power to calibrate the “metes and bounds of tri-
bal sovereignty.” Ante, at 202; see also ante, at 210 (hold-
ing that “the Constitution authorizes Congress” to regulate
tribal sovereignty). Unlike the Court, ante, at 200–201,
I cannot locate such congressional authority in the Treaty
Clause, U. S. Const., Art. II, § 2, cl. 2, or the Indian Com-
merce Clause, Art. I, § 8, cl. 3. Additionally, I would ascribe
much more significance to legislation such as the Act of Mar.
3, 1871, Rev. Stat. § 2079, 16 Stat. 566, codified at 25 U. S. C.
§ 71, that purports to terminate the practice of dealing with
Indian tribes by treaty. The making of treaties, after all, is
the one mechanism that the Constitution clearly provides for
the Federal Government to interact with sovereigns other
than the States. Yet, if I accept that Congress does have
this authority, I believe that the result in Wheeler is ques-
tionable. In my view, the tribes either are or are not sepa-
rate sovereigns, and our federal Indian law cases untenably
hold both positions simultaneously.
I
In response to the Court’s decision in Duro v. Reina, 495
U. S. 676 (1990) (holding that the tribes lack inherent author-

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216 UNITED STATES v. LARA
Thomas, J., concurring in judgment
ity to prosecute nonmember Indians), Congress amended
the Indian Civil Rights Act of 1968 (ICRA). Specifically,
through this “Duro fix,” Congress amended ICRA’s defini-
tion of the tribes’ “powers of self-government” to “recog-
niz[e] and affir[m]” the existence of “inherent power . . . to
exercise criminal jurisdiction over all Indians.” 25 U. S. C.
§ 1301(2). There is quite simply no way to interpret a recog-
nition and affirmation of inherent power as a delegation of
federal power, as the Court explains. Ante, at 199. Dele-
gated power is the very antithesis of inherent power.
But even if the statute were less clear, I would not inter-
pret it as a delegation of federal power. The power to bring
federal prosecutions, which is part of the putative delegated
power, is manifestly and quintessentially executive power.
Morrison v. Olson, 487 U. S. 654, 691 (1988); id., at 705
(Scalia, J., dissenting). Congress cannot transfer federal
executive power to individuals who are beyond “meaningful
Presidential control.” Printz v. United States, 521 U. S. 898,
922–923 (1997). And this means that, at a minimum, the
President must have some measure of “the power to appoint
and remove” those exercising that power. Id., at 922; see
also Morrison, supra, at 706–715 (Scalia, J., dissenting).
It does not appear that the President has any control over
tribal officials, let alone a substantial measure of the appoint-
ment and removal power. Cf. Brief for National Congress
of American Indians as Amicus Curiae 27–29. Thus, at
least until we are prepared to recognize absolutely independ-
ent agencies entirely outside of the Executive Branch with
the power to bind the Executive Branch (for a tribal prosecu-
tion would then bar a subsequent federal prosecution), the
tribes cannot be analogized to administrative agencies, as the
dissent suggests, post, at 227 (opinion of Souter, J.). That
is, reading the “Duro fix” as a delegation of federal power
(without also divining some adequate method of Presidential
control) would create grave constitutional difficulties. Cf.
INS v. St. Cyr, 533 U. S. 289, 299–300 (2001); Solid Waste

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217 Cite as: 541 U. S. 193 (2004)
Thomas, J., concurring in judgment
Agency of Northern Cook Cty. v. Army Corps of Engineers,
531 U. S. 159, 173 (2001). Accordingly, the Court has only
two options: Either the “Duro fix” changed the result in
Duro or it did nothing at all. 1
II
In Wheeler, 435 U. S., at 322–323, the Court explained that,
prior to colonization, “the tribes were self-governing sover-
eign political communities.” The Court acknowledged, how-
ever, that, after “[t]heir incorporation within the territory of
the United States,” the tribes could exercise their inherent
sovereignty only as consistent with federal policy embodied
in treaties, statutes, and Executive Orders. Id., at 323; see
also id., at 327–328. Examining these sources for potential
conflict, the Court concluded that the tribes retained the
ability to exercise their inherent sovereignty to punish their
own members. Id., at 323–330.
Although Wheeler seems to be a sensible example of fed-
eral common lawmaking, I am not convinced that it was cor-
rectly decided. To be sure, it makes sense to conceptualize
1 I am sympathetic to Justice Kennedy’s position that we need not
resolve the question presented. Ante, at 211 (opinion concurring in judg-
ment). If Congress has power to restore tribal authority to prosecute
nonmember Indians, respondent’s tribal prosecution was the legitimate
exercise of a separate sovereign. As such, under the dual sovereignty
doctrine, it does not bar his subsequent federal prosecution. On the other
hand, if the amendment to ICRA had no effect (the only other possibility),
jeopardy did not attach in the tribal prosecution. See, e. g., Serfass v.
United States, 420 U. S. 377, 391 (1975); Grafton v. United States, 206 U. S.
333, 345 (1907) (noting “that before a person can be said to have been put
in jeopardy of life or limb the court in which he was acquitted or convicted
must have had jurisdiction to try him for the offense charged”); United
States v. Phelps, 168 F. 3d 1048, 1053–1054 (CA8 1999) (holding tribal court
prosecution without jurisdiction did not bar subsequent federal prosecu-
tion). Jeopardy could have attached in the tribal prosecution for federal
purposes only if the Federal Government had authorized the prosecution.
But Congress did not authorize tribal prosecutions, and nothing suggests
that the Executive Branch prompted respondent’s tribal prosecution.

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218 UNITED STATES v. LARA
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the tribes as sovereigns that, due to their unique situation,
cannot exercise the full measure of their sovereign powers.
Wheeler, at times, seems to analyze the problem in just this
way. See, e. g., id., at 323–326; id., at 323 (relying on Oli-
phant v. Suquamish Tribe, 435 U. S. 191 (1978), discussed
infra).
But I do not see how this is consistent with the apparently
“undisputed fact that Congress has plenary authority to leg-
islate for the Indian tribes in all matters, including their
form of government.” 435 U. S., at 319. The sovereign is,
by definition, the entity “in which independent and supreme
authority is vested.” Black’s Law Dictionary 1395 (6th ed.
1990). It is quite arguably the essence of sovereignty not
to exist merely at the whim of an external government.
Further, federal policy itself could be thought to be incon-
sistent with this residual-sovereignty theory. In 1871, Con-
gress enacted a statute that purported to prohibit entering
into treaties with the “Indian nation[s] or tribe[s].” 16 Stat.
566, codified at 25 U. S. C. § 71. Although this Act is consti-
tutionally 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 U. S. 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 demonstrate that
the tribes had lost their sovereignty. After all, States re-
tain sovereignty despite the fact that Congress can regulate
States qua States in certain limited circumstances. See,
e. g., Katzenbach v. Morgan, 384 U. S. 641 (1966); cf. New
York v. United States, 505 U. S. 144, 160–161 (1992); Garcia
v. San Antonio Metropolitan Transit Authority, 469 U. S.
528 (1985). But the States (unlike the tribes) are part of a
constitutional framework that allocates sovereignty between
the State and Federal Governments and specifically grants
Congress authority to legislate with respect to them, see

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219 Cite as: 541 U. S. 193 (2004)
Thomas, J., concurring in judgment
U. S. Const., Amdt. 14, § 5. And even so, we have explained
that “the Framers explicitly chose a Constitution that con-
fers upon Congress the power to regulate individuals, not
States.” New York, 505 U. S., at 166; id., at 162–166; see
also Printz, 521 U. S., at 910–915.
The tribes, by contrast, are not part of this constitutional
order, and their sovereignty is not guaranteed by it. As
Chief Justice Marshall explained:
“[T]he relation of the Indians to the United States is
marked by peculiar and cardinal distinctions which exist
no where else. . . .
“[Y]et it may well be doubted whether those tribes
which reside within the acknowledged boundaries of the
United States can, with strict accuracy, be denominated
foreign nations. They may, more correctly, perhaps, be
denominated domestic dependent nations.” Cherokee
Nation v. Georgia, 5 Pet. 1, 16–17 (1831).
Chief Justice Marshall further described the tribes as “inde-
pendent political communities, retaining their original natu-
ral rights,” and specifically noted that the tribes possessed
the power to “mak[e] treaties.” Worcester v. Georgia, 6 Pet.
515, 559 (1832). Although the tribes never fit comfortably
within the category of foreign nations, the 1871 Act tends to
show that the political branches no longer considered the
tribes to be anything like foreign nations. And it is at least
arguable that the United States no longer considered the
tribes to be sovereigns.2 Federal Indian policy is, to say the
least, schizophrenic. And this confusion continues to infuse
federal Indian law and our cases.
2 Additionally, the very enactment of ICRA through normal legislation
conflicts with the notion that tribes possess inherent sovereignty. Title
25 U. S. C. § 1302, for example, requires tribes “in exercising powers of
self-government” to accord individuals most of the protections in the Bill
of Rights. I doubt whether Congress could, through ordinary legislation,
require States (let alone foreign nations) to use grand juries.

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220 UNITED STATES v. LARA
Thomas, J., concurring in judgment
Nevertheless, if I accept Wheeler, I also must accept that
the tribes do retain inherent sovereignty (at least to enforce
their criminal laws against their own members) and the
logical consequences of this fact. In Heath v. Alabama, 474
U. S. 82, 88 (1985), the Court elaborated the dual sover-
eignty doctrine and explained that a single act that violates
the “ ‘peace and dignity’ of two sovereigns by breaking the
laws of each” constitutes two separate offenses. This, of
course, is the reason that the Double Jeopardy Clause does
not bar successive prosecutions by separate sovereigns.
But whether an act violates the “peace and dignity” of a
sovereign depends not in the least on whether the perpetra-
tor is a member (in the case of the tribes) or a citizen (in the
case of the States and the Nation) of the sovereign.
Heath also instructs, relying on Wheeler, that the
separate-sovereign inquiry “turns on whether the two enti-
ties draw their authority to punish the offender from distinct
sources of power.” Heath, supra, at 88. But Wheeler
makes clear that the tribes and the Federal Government do
draw their authority to punish from distinct sources and that
they are separate sovereigns. Otherwise, the subsequent
federal prosecution in Wheeler would have violated the Dou-
ble Jeopardy Clause.3 It follows from our case law that In-
dian tribes possess inherent sovereignty to punish anyone
who violates their laws.
In Duro v. Reina, 495 U. S. 676 (1990), the Court held that
the Indian tribes could no longer enforce their criminal laws
against nonmember Indians. Despite the obvious tension,
Duro and Wheeler are not necessarily inconsistent. Al-
though Wheeler and Heath, taken together, necessarily imply
that the tribes retain inherent sovereignty to try anyone
who violates their criminal laws, Wheeler and Duro make
3 I acknowledge that Wheeler focused specifically on the tribes’ authority
to try their own members. See 435 U. S., at 323–330. But, as I discuss
below, the distinction between the tribes’ external and internal powers is
not constitutionally required.

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clear that conflict with federal policy can operate to prohibit
the exercise of this sovereignty. Duro, then, is not a case
about “inherent sovereignty” (a term that we have used too
imprecisely); rather, it is a case about whether a specific ex-
ercise of tribal sovereignty conflicts with federal policy.
Indeed, the Court in Duro relied primarily on Oliphant v.
Suquamish Tribe, 435 U. S. 191 (1978), which held that tribes
could not enforce their criminal laws against non-Indians.
In reaching that conclusion, the Court in Oliphant carefully
examined the views of Congress and the Executive Branch.
Id., at 197–206 (discussing treaties, statutes, and views of the
Executive Branch); id., at 199 (discussing Attorney General
opinions, including 2 Op. Atty. Gen. 693 (1834) (concluding
that tribal exercise of criminal jurisdiction over non-Indians
was inconsistent with various treaties)). Duro at least re-
hearsed the same analysis. 495 U. S., at 688–692. Thus, al-
though Duro is sprinkled with references to various constitu-
tional concerns, see, e. g., id., at 693–694, Duro, Oliphant,
and Wheeler are classic federal-common-law decisions. See
also County of Oneida v. Oneida Indian Nation of N. Y., 470
U. S. 226, 233–236 (1985).
I acknowledge that our cases have distinguished between
“tribal power [that] is necessary to protect tribal self-
government or to control internal relations” and tribal power
as it relates to the external world. Montana v. United
States, 450 U. S. 544, 564 (1981); see also Nevada v. Hicks,
533 U. S. 353, 358–359 (2001); South Dakota v. Bourland, 508
U. S. 679, 695, n. 15 (1993); Duro, supra, at 685–686; Wheeler,
435 U. S., at 322–325. This distinction makes perfect sense
as a matter of federal common law: Purely “internal” matters
are by definition unlikely to implicate any federal policy.
But, critically, our cases have never drawn this line as a con-
stitutional matter. That is why we have analyzed extant
federal law (embodied in treaties, statutes, and Executive
Orders) before concluding that particular tribal assertions of
power were incompatible with the position of the tribes.

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222 UNITED STATES v. LARA
Thomas, J., concurring in judgment
See, e. g., National Farmers Union Ins. Cos. v. Crow Tribe,
471 U. S. 845, 853–854 (1985); Oliphant, supra, at 204 (“While
Congress never expressly forbade Indian tribes to impose
criminal penalties on non-Indians, we now make express our
implicit conclusion of nearly a century ago [referring to In
re Mayfield, 141 U. S. 107 (1891)] that Congress consistently
believed this to be the necessary result of its repeated legis-
lative actions”).4
As noted, in response to Duro, Congress amended ICRA.
Specifically, Congress “recognized and affirmed” the exist-
ence of “inherent power . . . to exercise criminal jurisdiction
over all Indians.” 25 U. S. C. § 1301(2). President Bush
signed this legislation into law. See 27 Weekly Comp. of
Pres. Doc. 1573–1574 (1991). Further, as this litigation dem-
onstrates, it is the position of the Executive Branch that the
tribes possess inherent authority to prosecute nonmember
Indians.
In my view, these authoritative pronouncements of the po-
litical branches make clear that the exercise of this aspect of
sovereignty is not inconsistent with federal policy and there-
fore with the position of the tribes. Thus, while Duro may
have been a correct federal-common-law decision at the time,
the political branches have subsequently made clear that the
4 Justice Souter believes that I have overlooked Oliphant’s reliance
on sources other than “treaties, statutes, and the views of the Executive
Branch.” Post, at 230, n. 2. Justice Souter quotes the following pas-
sage from Oliphant: “[E]ven ignoring treaty provisions and congressional
policy, Indians do not have criminal jurisdiction over non-Indians absent
affirmative delegation of such power by Congress. . . . Indian tribes are
prohibited from exercising both those powers of autonomous states that
are expressly terminated by Congress and those powers inconsistent with
their status.” 435 U. S., at 208 (emphasis added; internal quotation marks
and citation omitted). The second quoted sentence is entirely consistent
with federal common lawmaking and is difficult to understand as anything
else. I admit that the first sentence, which removes from consideration
most of the sources of federal common law, makes the second sentence
puzzling. But this is precisely the confusion that I have identified and
that I hope the Court begins to resolve.

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tribes’ exercise of criminal jurisdiction against nonmember
Indians is consistent with federal policy. The potential con-
flicts on which Duro must have been premised, according to
the political branches, do not exist. See also ante, at 205.
I therefore agree that, as the case comes to us, the Tribe
acted as a separate sovereign when it prosecuted respond-
ent. Accordingly, the Double Jeopardy Clause does not bar
the subsequent federal prosecution.
III
I believe that we must examine more critically our tribal
sovereignty case law. Both the Court and the dissent, how-
ever, compound the confusion by failing to undertake the
necessary rigorous constitutional analysis. I would begin
by carefully following our assumptions to their logical con-
clusions and by identifying the potential sources of federal
power to modify tribal sovereignty.
The dissent admits that “[t]reaties and statutes delineating
the tribal-federal relationship are properly viewed as an in-
dependent elaboration by the political branches of the fine
details of the tribes’ dependent position, which strips the
tribes of any power to exercise criminal jurisdiction over
those outside their own memberships.” Post, at 228. To
the extent that this is a description of the federal-common-
law process, I agree. But I do not understand how the dis-
sent can then conclude that “the jurisdictional implications
[arising from this analysis are] constitutional in nature.”
Ibid. By this I understand the dissent to mean that Con-
gress cannot alter the result, though the dissent never
quite says so.
The analysis obviously has constitutional implications. It
is, for example, dispositive of respondent’s double jeopardy
claim. But it does not follow that this Court’s federal-
common-law decisions limiting tribes’ authority to exercise
their inherent sovereignty somehow become enshrined as
constitutional holdings that the political branches cannot

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224 UNITED STATES v. LARA
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alter. When the political branches demonstrate that a par-
ticular exercise of the tribes’ sovereign power is in fact
consistent with federal policy, the underpinnings of a
federal-common-law decision disabling the exercise of that
tribal power disappear. Although I do not necessarily agree
that the tribes have any residual inherent sovereignty or
that Congress is the constitutionally appropriate branch to
make adjustments to sovereignty, see Part II, supra, it is
important to recognize the logical implications of these
assumptions.
Similarly unavailing is the dissent’s observation that when
we perform the separate-sovereign analysis “we are under-
taking a constitutional analysis based on legal categories of
constitutional dimension.” Post, at 229. The dissent con-
cludes from this that our double jeopardy analysis in this
context “must itself have had constitutional status.” Ibid.
This ipse dixit does not transform our common-law decisions
into constitutional holdings. Cf. Dickerson v. United States,
530 U. S. 428, 459–461 (2000) (Scalia, J., dissenting).
I do, however, agree that this case raises important consti-
tutional questions that the Court does not begin to answer.
The Court utterly fails to find any provision of the Constitu-
tion that gives Congress enumerated power to alter tribal
sovereignty. The Court cites the Indian Commerce Clause
and the treaty power. Ante, at 200. I cannot agree that
the Indian Commerce Clause “ ‘provide[s] Congress with ple-
nary power to legislate in the field of Indian affairs.’ ” Ibid.
(quoting Cotton Petroleum Corp. v. New Mexico, 490 U. S.
163, 192 (1989)). At one time, the implausibility of this as-
sertion at least troubled the Court, see, e. g., United States
v. Kagama, 118 U. S. 375, 378–379 (1886) (considering such
a construction of the Indian Commerce Clause to be “very
strained”), and I would be willing to revisit the question.
Cf., e. g., United States v. Morrison, 529 U. S. 598 (2000);
United States v. Lopez, 514 U. S. 549 (1995); id., at 584–593
(Thomas, J., concurring).

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225 Cite as: 541 U. S. 193 (2004)
Thomas, J., concurring in judgment
Next, the Court acknowledges that “[t]he treaty power
does not literally authorize Congress to act legislatively,
for it is an Article II power authorizing the President, not
Congress, ‘to make Treaties.’ ” Ante, at 201 (quoting U. S.
Const., Art. II, § 2, cl. 2). This, of course, suffices to show
that it provides no power to Congress, at least in the absence
of a specific treaty. Cf. Missouri v. Holland, 252 U. S. 416
(1920). The treaty power does not, as the Court seems to
believe, provide Congress with free-floating power to legis-
late as it sees fit on topics that could potentially implicate
some unspecified treaty. Such an assertion is especially
ironic in light of Congress’ enacted prohibition on Indian
treaties.
In the end, the Court resorts to citing past examples of
congressional assertions of this or similar power. Ante,
at 202–203. At times, such history might suffice. Cf.
Dames & Moore v. Regan, 453 U. S. 654, 686 (1981); Youngs-
town Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611
(1952) (Frankfurter, J., concurring). But it does not suffice
here for at least two reasons. First, federal Indian law is at
odds with itself. I find it difficult to reconcile the result in
Wheeler with Congress’ 1871 prospective prohibition on the
making of treaties with the Indian tribes. The Federal Gov-
ernment cannot simultaneously claim power to regulate vir-
tually every aspect of the tribes through ordinary domestic
legislation and also maintain that the tribes possess anything
resembling “sovereignty.” See Part II, supra. In short,
the history points in both directions.
Second, much of the practice that the Court cites does not
actually help its argument. The “Insular Cases,” which in-
clude the Hawaii and Puerto Rico examples, ante, at 203–204,
involved Territories of the United States, over which Con-
gress has plenary power to govern and regulate. See Reid
v. Covert, 354 U. S. 1, 13 (1957); U. S. Const., Art. IV, § 3,
cl. 2. The existence of a textual source for congressional
power distinguishes these cases. And, incidentally, al-

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226 UNITED STATES v. LARA
Souter, J., dissenting
though one might think that Congress’ authority over the
tribes could be found in Article IV, § 3, cl. 2, the Court has
held that the Territories are the United States for double
jeopardy purposes, see, e. g., Wheeler, 435 U. S., at 321–322;
Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U. S. 253, 264–266
(1937), which would preclude the result in Wheeler. It is for
this reason as well that the degree of autonomy of Puerto
Rico is beside the point. See Wheeler, supra, at 321; post,
at 229.
The Court should admit that it has failed in its quest to
find a source of congressional power to adjust tribal sover-
eignty. Such an acknowledgment might allow the Court to
ask the logically antecedent question whether Congress (as
opposed to the President) has this power. A cogent answer
would serve as the foundation for the analysis of the sover-
eignty issues posed by this case. We might find that the
Federal Government cannot regulate the tribes through or-
dinary domestic legislation and simultaneously maintain that
the tribes are sovereigns in any meaningful sense. But
until we begin to analyze these questions honestly and rigor-
ously, the confusion that I have identified will continue to
haunt our cases.
Justice Souter, with whom Justice Scalia joins,
dissenting.
It is as true today as it was in 1886 that the relationship
of Indian tribes to the National Government is “an anoma-
lous one and of a complex character.” United States v.
Kagama, 118 U. S. 375, 381. Questions of tribal jurisdiction,
whether legislative or judicial, do not get much help from
the general proposition that tribes are “domestic dependent
nations,” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), or
“wards of the [American] nation,” Kagama, supra, at 383.
Our cases deciding specific questions, however, demonstrate
that the tribes do retain jurisdiction necessary to protect
tribal self-government or control internal tribal relations,

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Souter, J., dissenting
Montana v. United States, 450 U. S. 544, 564 (1981), including
the right to prosecute tribal members for crimes, United
States v. Wheeler, 435 U. S. 313, 323–324 (1978), a sovereign
right that is “inherent,” ibid., but neither exclusive, Ka-
gama, supra, at 384–385 (federal criminal jurisdiction), nor
immune to abrogation by Congress, Wheeler, supra, at 323
(“the sufferance of Congress”). Furthermore, except as
provided by Congress, tribes lack criminal jurisdiction over
non-Indians, Oliphant v. Suquamish Tribe, 435 U. S. 191, 212
(1978), and over nonmember Indians, Duro v. Reina, 495
U. S. 676, 685, 688 (1990).
Of particular relevance today, we held in Duro that be-
cause tribes have lost their inherent criminal jurisdiction
over nonmember Indians, any subsequent exercise of such
jurisdiction “could only have come to the Tribe” (if at all)
“by delegation from Congress.” Id., at 686. Three years
later, in South Dakota v. Bourland, 508 U. S. 679 (1993), we
reiterated this understanding that any such “delegation”
would not be a restoration of prior inherent sovereignty; we
specifically explained that “tribal sovereignty over nonmem-
bers cannot survive without express congressional delega-
tion, and is therefore not inherent.” Id., at 695, n. 15 (em-
phasis in original; citation and internal quotation marks
omitted).1 Our precedent, then, is that any tribal exercise
of criminal jurisdiction over nonmembers necessarily rests
on a “delegation” of federal power and is not akin to a State’s
congressionally permitted exercise of some authority that
would otherwise be barred by the dormant Commerce
Clause, see New York v. United States, 505 U. S. 144, 171
(1992). It is more like the delegation of lawmaking power
to an administrative agency, whose jurisdiction would not
even exist absent congressional authorization.
1 Bourland was a civil case about the regulation of hunting and fishing
by non-Indians. Its applicability in the criminal context is presumably
a fortiori.

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228 UNITED STATES v. LARA
Souter, J., dissenting
It is of no moment that we have given ostensibly alternat-
ing explanations for this conclusion. We have sometimes in-
dicated that the tribes’ lack of inherent criminal jurisdiction
over nonmembers is a necessary legal consequence of the
basic fact that the tribes are dependent on the Federal Gov-
ernment. Wheeler, supra, at 326 (“[The tribes’ inability to]
try nonmembers in tribal courts . . . rest[s] on the fact that
the dependent status of Indian tribes within our territorial
jurisdiction is necessarily inconsistent with their freedom in-
dependently to determine their external relations”); Oli-
phant, 435 U. S., at 210 (“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 . . .”). At other times, our language has
suggested that the jurisdictional limit stems from congres-
sional and treaty limitations on tribal powers. See id., at
204 (“Congress’ various actions and inactions in regulating
criminal jurisdiction on Indian reservations demonstrated an
intent to reserve jurisdiction over non-Indians for the federal
courts”); National Farmers Union Ins. Cos. v. Crow Tribe,
471 U. S. 845, 853–854 (1985) (“In Oliphant we . . . concluded
that federal legislation conferring jurisdiction on the fed-
eral courts to try non-Indians for offenses committed in
Indian Country had implicitly pre-empted tribal jurisdic-
tion”). What has never been explicitly stated, but should
come as no surprise, is that these two accounts are not incon-
sistent. Treaties and statutes delineating the tribal-federal
relationship are properly viewed as an independent elabora-
tion by the political branches of the fine details of the tribes’
dependent position, which strips the tribes of any power to
exercise criminal jurisdiction over those outside their own
memberships.
What should also be clear, and what I would hold today, is
that our previous understanding of the jurisdictional implica-
tions of dependent sovereignty was constitutional in nature,
certainly so far as its significance under the Double Jeopardy

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229 Cite as: 541 U. S. 193 (2004)
Souter, J., dissenting
Clause is concerned. Our discussions of Indian sovereignty
have naturally focused on the scope of tribes’ inherent legis-
lative or judicial jurisdiction. E. g., Nevada v. Hicks, 533
U. S. 353 (2001) ( jurisdiction of tribal courts over civil suit
against state official); South Dakota v. Bourland, supra
(tribal regulations governing hunting and fishing). And ap-
plication of the double jeopardy doctrine of dual sovereignty,
under which one independent sovereign’s exercise of crimi-
nal jurisdiction does not bar another sovereign’s subsequent
prosecution of the same defendant, turns on just this ques-
tion of how far a prosecuting entity’s inherent jurisdiction
extends. Grafton v. United States, 206 U. S. 333, 354–355
(1907). When we enquire “whether the two [prosecuting]
entities draw their authority to punish the offender from dis-
tinct sources of power,” Heath v. Alabama, 474 U. S. 82, 88
(1985), in other words, we are undertaking a constitutional
analysis based on legal categories of constitutional dimension
(i. e., is this entity an independent or dependent sovereign?).
Thus, our application of the doctrines of independent and
dependent sovereignty to Indian tribes in response to a dou-
ble jeopardy claim must itself have had constitutional status.
See Wheeler, supra, at 326 (holding that tribes’ inability to
prosecute nonmembers “rest[s] on the fact that the depend-
ent status of Indian tribes within our territorial jurisdiction
is necessarily inconsistent with their freedom independently
to determine their external relations”).
That means that there are only two ways that a tribe’s
inherent sovereignty could be restored so as to alter applica-
tion of the dual sovereignty rule: either Congress could grant
the same independence to the tribes that it did to the Philip-
pines, see ante, at 204, or this Court could repudiate its exist-
ing doctrine of dependent sovereignty. The first alternative
has obviously not been attempted, and I see no reason for us
to venture down a path toward the second. To begin with,
the theory we followed before today has the virtue of fitting
the facts: no one could possibly deny that the tribes are sub-

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230 UNITED STATES v. LARA
Souter, J., dissenting
ordinate to the National Government. Furthermore, while
this is not the place to reexamine the concept of dual sover-
eignty itself, there is certainly no reason to adopt a canon of
broad construction calling for maximum application of the
doctrine. Finally, and perhaps most importantly, principles
of stare decisis are particularly compelling in the law of
tribal jurisdiction, an area peculiarly susceptible to confu-
sion. And confusion, I fear, will be the legacy of today’s
decision, for our failure to stand by what we have previously
said reveals that our conceptualizations of sovereignty and
dependent sovereignty are largely rhetorical.2
2 Justice Thomas’s disagreement with me turns ultimately on his readi-
ness to discard prior case law in this field and, indeed, on his rejection in
this very case of the concept of dependent sovereignty. He notes, for
example, ante, at 220 (opinion concurring in judgment), that the Court in
Heath v. Alabama, 474 U. S. 82, 88 (1985), explained that one act that
violates the peace and dignity of two sovereigns constitutes two separate
offenses for purposes of double jeopardy. Justice Thomas then con-
cludes that whether an act violates a sovereign’s peace and dignity does
not depend (when the sovereign is an Indian tribe) on whether the perpe-
trator is a member of the tribe. Justice Thomas therefore assumes that
tribes “retain inherent sovereignty to try anyone who violates their crimi-
nal laws.” Ante, at 220. This Court, however, has held exactly to the
contrary: a tribe has no inherent jurisdiction to prosecute a nonmember.
In rejecting this precedent, Justice Thomas implicitly rejects the con-
cept of dependent sovereignty, upon which our holdings in United States
v. Wheeler, 435 U. S. 313 (1978), and Oliphant v. Suquamish Tribe, 435
U. S. 191 (1978), rested. Reciting Oliphant’s examination of treaties, stat-
utes, and views of the Executive Branch, Justice Thomas attempts to
suggest that these opinions were only momentary expressions of malleable
federal policy. But he somehow ignores Oliphant’s own emphasis that its
analysis did not rest on historical expressions of federal policy; rather,
“even ignoring treaty provisions and congressional policy, Indians do not
have criminal jurisdiction over non-Indians absent affirmative delegation
of such power by Congress. . . . Indian tribes are prohibited from exercis-
ing both those powers of autonomous states that are expressly terminated
by Congress and those powers inconsistent with their status.” Id., at
208 (emphasis in original; citation and internal quotation marks omitted);
see also Duro v. Reina, 495 U. S. 676, 686 (1990). There is simply no basis
for Justice Thomas’s recharacterization of this clear holding.

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Souter, J., dissenting
I would therefore stand by our explanations in Oliphant
and Duro and hold that Congress cannot reinvest tribal
courts with inherent criminal jurisdiction over nonmember
Indians. It is not that I fail to appreciate Congress’s ex-
press wish that the jurisdiction conveyed by statute be
treated as inherent, but Congress cannot control the inter-
pretation of the statute in a way that is at odds with the
constitutional consequences of the tribes’ continuing depend-
ent status. What may be given controlling effect, however,
is the principal object of the 1990 amendments to the Indian
Civil Rights Act of 1968, 25 U. S. C. § 1301 et seq., which was
to close “the jurisdictional void” created by Duro by recog-
nizing (and empowering) the tribal court as “the best forum
to handle misdemeanor cases over non-member Indians,”
H. R. Rep. No. 102–261, p. 6 (1991). I would therefore honor
the drafters’ substantive intent by reading the Act as a del-
egation of federal prosecutorial power that eliminates the
jurisdictional gap.3 Finally, I would hold that a tribe’s
exercise of this delegated power bars subsequent federal
prosecution for the same offense. I respectfully dissent.
3 Justice Thomas suggests that this delegation may violate the separa-
tion of powers. Ante, at 215–217. But we are not resolving the question
whether Lara could be “prosecuted pursuant to . . . delegated power,” 324
F. 3d 635, 640 (CA8 2003), only whether the prosecution was in fact the
exercise of an inherent power, see Pet. for Cert. (I), and whether the
exercise of a delegated power would implicate the protection against dou-
ble jeopardy.