SYMMETRY NOT ALWAYS BEST FOR INTERACTIONS BETWEEN INDIAN AND FEDERAL LAW, RESEARCHER FINDS

"It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government."
Justice Thurgood Marshall, in McClanahan v. State Tax Comm’n of Arizona, 1973.

"In the eyes of the government, we are just one race here. It is American."
Justice Antonin Scalia, in Adarand Constructors, Inc. v. Pena, 1995.

FAYETTEVILLE, Ark. — An Indian tribe seeks to continue its fishing rights under an old treaty, but the state fights on the grounds that the fish they take have become an endangered species. A non-Indian commits a crime on an Indian reservation, but the tribal court cannot prosecute him.

As interactions between American Indian tribes and non-Indian Americans become more commonplace, so do clashes between the laws of these sovereign nations. A University of Arkansas law professor believes that interactions between the courts of Indian nations and the state and federal governments should not always be reciprocally symmetrical, but should honor the tribes’ historic sovereignty. In other words, Indian tribal law, and the practice of it, should not be forced to conform to state law and its practice.

Robert Laurence, Robert A. Leflar Professor of Law, argues his case in a recent issue of the Arizona Law Review.

Laurence takes the broad view of symmetry and asymmetry from physics. He discovered through the writings of Richard Feynman and others that the concept of asymmetry in physics is broader than the term is more commonly used in everyday language. Physical laws do not always apply in the same way through various translations. In particular, the laws of physics apply differently to small and large objects.

"Different rules apply when you create large and small airplanes, for instance, or when you build very large or very small structures," Laurence said. "Looking at symmetry and asymmetry starts the conversation about what the rules should be regarding small governments that deal with large governments."

He extends this concept to apply to the laws governing the United States, a very large country, and the much smaller sovereign nations of American Indian tribes, and argues that the law should not insist that Indian governments mimic the Federal or state government structure.

"With a few notable exceptions, tribes are generally small," Laurence said. In a typical Indian nation, a few thousand people live in a county-sized area. People from different branches of government may work in the same room, or have overlapping responsibilities. A judge is likely to know most of the people who come before the court, as do the members of any assembled jury. Under these circumstances, the laws must necessarily differ from neighboring states. Laurence points out that the smallest state, with a population of 600,000 is three to four times larger than the largest Indian tribe and a hundred times the size of a typical tribe.

Laurence also applies symmetry and asymmetry concepts to interactions between Federal and Indian courts, particularly when it comes to enforcing judgements that directly affect the other entity. The states are equal under the concept of Full Faith and Credit, which means that they respect each other’s judgements.

He argues that Full Faith and Credit should not always apply to interactions between Indian tribal courts and state courts. If a state judgement adversely affects the tribes’ sovereignty, then it should not be enforced, he said.

"When you only have 2000 people, an off-reservation ruling can have a devastating impact on a small tribal community," Laurence said. "Importation of a judgement into California will have little impact on the state of California."

In the case of tribal hunting rights versus endangered species, Laurence believes that the historic treaties should be honored.

"It is almost always the actions of the dominant society, not the Indians, that result in a threat to a species’ continued existence," he writes.

Laurence also uses the symmetry and asymmetry principles to show how the Supreme Court has ruled misguidedly in some cases. For instance, it is acceptable, according to the Court, for a tribal court to tax a non-Indian, but not acceptable for that court to criminally prosecute a non-Indian.

His overall thesis would allow symmetry in all cases, except where the tribal nation’s sovereignty might be threatened.

"The fact that the universe tolerates some asymmetry means that the law can too," Laurence said.

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