On the other hand, Justice Sonia Sotomayor, though Bronx-born, is the child of Puerto Rico-born parents. She wrote her Princeton thesis on Luis Muñoz Marin, political architect of modern Puerto Rico. She, at least, must understand that what today is called “the United States of America” is not the neat construct taught in civics class—federal structure, three-branch government, happy citizens under what poet W.H. Auden called “liberty’s masterful shadow.” In the post-colonial age, American government, and citizenship, are more complicated than that.
The mismatch between constitutional theory and national reality began early. Thomas Jefferson believed that the Constitution did not permit the nation to acquire new territory. Faced with the chance to buy Louisiana, however, he bit his tongue. Since then, the Constitution’s language hasn’t changed, but years of conquest, purchase, and outright theft have given the nation two states, Alaska and Hawaii, physically separated and culturally distinct from the lower 48; hundreds of Indian reservations, Rancherias, Pueblos, and Native Villages, which are separated “dependent nations” incorporated through treaties; a self-governing “Commonwealth” called Puerto Rico; and more than a dozen other “insular areas” such as American Samoa, Guam, and the U.S. Virgin Islands.
Though most news coverage concentrates on the big metropolitan cases—religious freedom, labor unions, abortion, the Affordable Care Act—the outposts of empire have a place on this year’s docket. Alaska’s unique status will come up in Sturgeon v. Frost, the “wandering hovercraft” case, which challenges federal management of the vast majority of the state’s land. Indians have already appeared: in Dollar General Corporation v. Mississippi Band of Choctaw Indians, argued in December, the Court must decide whether Indian tribal courts can hear lawsuits against corporations for torts they allegedly commit on the reservation.
Tribes, and tribal courts, will be back at 1 First St NW later this term. Nebraska v. Parker is a challenge to the Omaha Tribe’s right to tax a liquor store located on land ceded to the tribe by treaty in 1854 but sold by it to private buyers, under a statute passed by Congress, beginning in 1882. Tribal courts are the issue in United States v. Bryant. In 2011, Michael Bryant, an enrolled member of the Northern Cheyenne tribe of southeastern Montana, was indicted in federal court on two counts of domestic assault, and also charged as a “habitual offender.” The “habitual offender” status—which can raise the sentence to as much as 10 years in prison—derived from multiple prior misdemeanor domestic-violence convictions in Northern Cheyenne Tribal Court. If those cases had been heard in state or federal court, Bryant would have been entitled to appointed counsel. But the Sixth Amendment doesn’t apply to tribal courts, and the Indian Civil Rights Act does not require tribes to supply counsel for offenses that carry less than a year in jail. Bryant is challenging the indictment on Sixth Amendment grounds.