In 1803, President Thomas Jefferson concluded the Constitution didn’t allow acquisition of new territory. But Louisiana was on the market; he wanted it; he grabbed it.
This is the logic of empire. Opportunity. Seizure. Legality much later, if at all.
The Supreme Court has to deal with the untidy legal heritage of empire-building. In the last week, the Court dealt with three such cases, which concluded the following: American Indian defendants, convicted of domestic abuse in tribal court, may later be punished in federal court as “habitual offenders” even though they did not have lawyers in their earlier trials. Defendants convicted in federal court may not be prosecuted in Puerto Rican courts for the same offense, because Puerto Rico isn’t a separate jurisdiction, but just a part of the federal government. And the Court will not review a lower-court decision that residents of American Samoa (which has been ruled by the U.S. for 116 years) are not made birthright U.S. citizens by the Fourteenth Amendment’s citizenship clause.
The result in all three cases has been a decision that strengthens the hand of Congress. Empire, the Court is suggesting, belongs to politicians, not lawyers.
The tribal-court case, United States v. Bryant, concerned a defendant who, over a decade and a half, committed at least seven brutal assaults on different domestic partners. Michael Bryant is a Northern Cheyenne, as were his victims. The crimes were committed on the tribe’s reservation in Montana. Thus, on the first five offenses, he was tried in tribal court and sentenced to a year or less in jail—the maximum the court could give. After the last two assaults, however, the federal government prosecuted him in federal district court, under a 2006 statute that provides up to five years in federal prison for anyone who “commits a domestic assault within . . . Indian country” if the defendant already has two or more domestic-abuse convictions “in federal, state, or Indian tribal-court proceedings.” Bryant drew a nearly four-year sentence this time.