Although US v. Lara is a tremendous victory for Indian tribes, I'm not
sure that the courts would automatically treat tribal treaties the same as
foreign treaties.
Justice Marshall's characterization of tribes as "domestic dependant
nations" is still used to differentiate tribes from foreign nations.
Congress ceased making treaties with tribes in 1871, but they still ratify
foreign treaties occasionally.
--
Gavin Clarkson
Assistant Professor
University of Michigan
School of Information
School of Law
Native American Studies
303C West Hall
Ann Arbor, MI 48109-1092
734-763-2284
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http://www.si.umich.edu/~gsmc
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The notion that the treaty power might extend further than the Commerce
Clause, though not necessarily without *any* regard to federalism, was
settled in Missouri v. Holland. This decision is regarded by some as
questionable, esp. in light of recent federalism cases. But earlier
today, the Supreme Court reiterated, in United States v. Lara, that:
“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, sec. 2. But, as
Justice Holmes pointed out, treaties 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) . . .
This doesn’t precisely resolve the question you posed – nor the question
of whether there are other potential infirmities here, such as delegating
quasi-judicial, quasi-legislative power to tribunals appointed outside the
Article III process – but it does suggest that Article I, and the 14th
Amendment, don’t state the limits of the treaty power, nor (in all
likelihood) the power to make congressional-executive agreements.
Best regards,
Ed Swaine
P.S. I realize this response will likely incite some Maureresque slur
against Penn, but I am prepared to contact representatives of Auburn,
Clemson, UT Austin, and Canada to put together a defamation suit. Well,
okay, not Canada. But everybody else.
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