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Law
Supreme Court move settles tribal authority cases


Tribal jurisdiction over all Indians appears to be safe after the U.S. Supreme Court on Monday rejected two cases, including a long-running challenge from activist Russell Means.

Means, a member of the Oglala Sioux Tribe, is accused of committing a crime on the Navajo Nation in 1997. He has repeatedly claimed that the can't be held responsible because he isn't a Navajo citizen.

But after a string of appeals in tribal and federal court, the author and actor can now be prosecuted for allegedly beating up his former father-in-law during a domestic violence incident. The U.S. Supreme Court's refusal to hear his case clears the way for tribal jurisdiction.

And in a separate action, the Supreme Court rejected the case of an Ojibwe man whose family belongs to the Citizens Equal Rights Alliance, an anti-treaty right group. Thomas Lee Morris was given a ticket for speeding on the Flathead Reservation in Montana but he claimed the Confederated Salish and Kootenai Tribes had no authority over him.

Monday's actions put to rest some of the lingering questions over inherent tribal sovereignty. Congress, through a piece of legislation known as the "Duro" fix -- named for a Supreme Court case from 1990 -- has recognized tribal jurisdiction over "all" Indians.

In a critical 2004 ruling, the Supreme Court upheld the Duro fix as a proper exercise of Congressional power. In US v. Lara, the court also said tribal prosecution does not violate the Double Jeopardy Clause of the U.S. Constitution because tribes are separate sovereigns.

Means and Morris took the constitutional issues further by raising Due Process and Equal Protection questions. Tribal advocates were worried that the Supreme Court could have eroded the Duro fix but the 9th Circuit Court of Appeals' decisions in both cases now stand.

Despite the rejection of the cases, Kevin Gover, the former head of the Bureau of Indian Affairs, said the current makeup of the court could pose problems for sovereignty in the future. Of the seven justices that ruled in favor of the Duro fix back in 2004, two of them -- the late Chief Justice William H. Rehnquist and former Justice Sandra Day O'Connor -- are no longer part of the court.

Of the remaining five, Gover pointed out that two of them -- Justice Anthony M. Kennedy and Clarence Thomas -- didn't agree with the reasoning behind the decision. The opinion by Thomas raised the question that tribal sovereignty is "inconsistent" with the Congressional power at issue in the Duro fix.

"I think that's a little scary," Gover said at the National Congress of American Indians annual conference last week in Sacramento.

The two justices who voted against the Duro fix -- David H. Souter and Antonin Scalia -- remain on the court. With the views of new Chief Justice John G. Roberts and Justice Samuel Alito -- who is often considered a protege of Scalia -- an unknown, Gover said it's very risky for tribes to have sovereignty cases in the courts.

"We don't know right now where the majority of the court is," he told tribal leaders.

Gover, who is now a law professor at Arizona State University, urged tribes to treat Congress as an "ally" on sovereignty issues. "The courts can't be doing this," he said. "Only Congress can jack us around."

Tribes have sought to extend their authority over Indians and non-Indians through acts of Congress. Gover said blanket jurisdiction over non-Indians is a highly controversial and political issue that may not ever see fruition.

Jurisdiction over non-Indians in discrete cases -- such as domestic violence, homeland security or drug trafficking -- might be more palatable to members of Congress, he added. But in order to achieve that goal, tribes must be willing to negotiate, he said.

"The tribe are going to have to give something to get something," said Gover, a member of the Pawnee Tribe of Oklahoma.

Russell Means Jurisdiction Decision:
Russell Means v. Navajo Nation (August 23, 2005)

Thomas Lee Morris Jurisdiction Decision:
Morris v. Tanner (December 22, 2005)

US v. Lara Decision:
Syllabus | Opinion [Breyer] | Concurrence [Stevens] | Concurrence [Kennedy | Concurrence [Thomas] | Dissent [Souter]

Relevant Links:
Russell Means - http://www.russellmeans.com
Navajo Nation - http://www.navajo.org
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html