The Legal Residue of American Empire

Imperialism has left tricky sovereignty questions with which the U.S. Supreme Court is only now reckoning.

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.

Indian tribes were once sovereign and independent nations. Congress has the power to “extinguish” specific parts of that sovereignty, but where it hasn’t, the tribes remain nominally independent of the federal government. For that reason, the Bill of Rights doesn’t apply to tribal governments; instead, tribal courts must comply with the Indian Civil Rights Act—which requires appointed counsel only for crimes carrying a sentence of more than one year. (In federal and state court, the Sixth Amendment requires counsel for crimes carrying imprisonment at all.)

There’s no question that the earlier convictions were valid; Congress’s power to regulate due process on reservations is unchallenged (by anyone except Justice Clarence Thomas). But Bryant argued that first, he couldn’t have been sent to prison by a federal court unless he had a lawyer, and second, a federal court couldn’t consider the convictions in order to sentence him under the federal habitual offender statute.

The Court unanimously rejected this argument. In her opinion, Justice Ruth Bader Ginsburg wrote: “Bryant’s 46-month sentence for violating [the “habitual offender” statute] punishes his most recent acts of domestic assault, not his prior crimes prosecuted in tribal court. Bryant was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court”—because he did have a lawyer during his federal trial.

But that formalistic distinction occupied one sentence in Ginsburg’s opinion; the major basis for the decision was a pragmatic recognition that the women of Indian country desperately need protection. “‘Compared to all other groups in the United States,’ Native American women ‘experience the highest rates of domestic violence,’” Ginsburg wrote, citing statistics showing that nearly half of all Native women have been victims of domestic assault. Tribal courts haven’t been able to put the offenders away for a long time; many states don’t have criminal jurisdiction over reservations, and those that do “have not devoted their limited criminal justice resources to crimes committed in Indian country,” she wrote.

“That leaves the federal government,” she added.

At bottom, this is the logic of conquest, the inescapable burden of the conqueror. Congress can do what it wants in Indian country, Ginsburg suggests, and thus must have the power, and also the responsibility, to deal with an epidemic of violence.

Conquest also lurks behind the decision in Puerto Rico v. Sanchez Valle, which asks whether Puerto Rico has any sovereignty or is, in effect, a federal agency. The Spanish-American War was supposedly a quest for Cuban independence. But, as George Herring recounted in From Colony to Superpower: U.S. Foreign Relations Since 1776, national leaders agreed that Puerto Rico was up for grabs. The war hero Theodore Roosevelt spoke for many Americans when he wrote to Senator Henry Cabot Lodge, “prevent any talk of peace until we get Porto Rico [sic].” American forces grabbed the island days before the cease-fire.

Congress in 1917 provided that Puerto Ricans are birthright citizens of the U.S. The Supreme Court, however, suggested in a famous set of Puerto Rico-related decisions called the Insular Cases that the Constitution doesn’t apply in full force to the island; in legal terms, the U.S. ran the show in San Juan. With the advent of the United Nations, the island’s outright colonial status became an embarrassment. As a result, the U.S. invited the Puerto Ricans to convene a constitutional convention and create a government with three branches, including independent courts. In 1952, the island’s voters approved the constitution of the “commonwealth”; Congress made a few changes and approved it. In 1953, another Senator Lodge—Henry Cabot Lodge Jr., the son of TR’s co-conspirator—reported to the U.N. that “the people of Puerto Rico have obtained a full measure of self-government.”

Six decades later, the Court concluded Monday in Puerto Rico v. Sanchez Valle that, well, maybe not so much. In 2008, a Puerto Rican grand jury indicted two residents for illegal gun sales. Before the case came to trial, however, the federal government swooped in and indicted them for the same offense. The defendants pleaded guilty in federal court, then moved to dismiss the original charge as a violation of the Fifth Amendment’s double-jeopardy clause.

If Puerto Rico were a state, or an Indian tribe, that plea wouldn’t work. State and federal prosecutions for the same crime don’t violate double jeopardy, because, the Court said in 1922, a defendant in that situation has committed crimes against two distinct sovereigns—and thus “by one act . . . has committed two offenses.”

But Puerto Rico is not a state. The supreme courts of both Puerto Rican and the U.S. have now held that it is, in essence, a possession of Congress. Thus, the “ultimate source” of the commonwealth’s criminal-justice system is the federal government, and double jeopardy applies.

Justice Elena Kagan wrote for the majority; Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented. Neither opinion confronts one glaring fact of Puerto Rican history—the island, like much of mainland Indian country, was inhabited for 4,000 years by Native people, and, like the American Southwest, was settled, populated, and governed by Spain for nearly 400 years before the U.S. gobbled it up.

The only concern on either side of the Court is the status of the Puerto Rican constitution—was it a charter granted as a boon by Congress, or an act of the people, like, say the Constitution of Idaho? When Congress granted the island “a full measure of self-government,” its language made clear that, for all that it might be called a “commonwealth,” Puerto Rico remained a U.S. territory, and thus subject complete congressional control.

In other words: The U.S. took the island, the U.S. has the island, and the U.S. can do what it wants.

And then there’s the matter of American Samoa, a territory first seized by the U.S. in 1899. Though it has a legislature, an elected governor, and a two-member Supreme Court, the ultimate authority over American Samoa is Secretary of the Interior Sally Jewell. It is considered “unincorporated territory”—that is, part of the United States, but, as one opinion in the Insular Cases suggested, “no part of the union.” Unless Congress provides otherwise, children born there are not birthright citizens of the United States.

It has not so provided. Unless one parent is a citizen, children born in the American Samoa are known as “U.S. nationals.” They may move to the U.S. and acquire citizenship, but the citizenship clause does not apply to them. The exclusion seems cruel and ironic: American Samoans are intensely American—their rate of military enlistment is the highest in the country, as is the percentage of the population playing in the National Football League. A group of Samoans sued in federal court, arguing that the clause should cover them and their children. In an amicus brief, the leaders of the territory argued that the full application of the Constitution might imperil the laws that prevent outsiders from buying Samoan communal land.

D.C. Circuit Judge Janice Rogers Brown wrote that the Clause didn’t apply because American Samoa actually is self-governing. “We are skeptical [of the claim that] the framers plainly intended to extend birthright citizenship to distinct, significantly self-governing political territories within the United States’ sphere of sovereignty—even where, as is the case with American Samoa, ultimate governance remains statutorily vested with the United States Government.” The Supreme Court on Monday denied a petition to review that decision.

In all three cases, the decisions were effectively this: self-government or no self-government, Congress gets to decide. Judges live in the world of law. Don’t ask us to make sense of your empire.