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The Rise of Tribes and the Fall of Federal Indian Law
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Supreme Court affirms tribal powers over all Indians
Tuesday, April 20, 2004

Reversing a decision widely seen as an erosion of tribal sovereignty, the U.S. Supreme Court on Monday ruled that tribes have criminal jurisdiction over all American Indians and Alaska Natives.

In a closely watched case with significant implications, the justices overturned a 14-year-old decision in which tribes lost the power to prosecute members of other tribes. A majority of the court held that a subsequent change in federal law rendered the Duro v. Reina precedent of 1990 moot.

Congress, Justice Steven G. Breyer wrote, can refine the "metes and bounds of tribal sovereignty" even if they come in conflict with the court's decisions. In this case, he wrote, lawmakers passed a statute "specifically authorizing a tribe to prosecute Indian members of a different tribe."

The decision was hailed as a victory by tribal leaders and Indian legal experts who said it restored an inherent power tribes always possessed. Tex Hall, president of the National Congress of American Indians, called it an "overwhelming" win for tribal rights after years of negative rulings from the high court.

"I really think that tribes took a turn for the good here with the court," Hall said yesterday in an interview. "I think it had to come in bits and pieces. Of course, this bit was a big piece."

John Echohawk, the executive director of the Native American Rights Fund, also characterized the decision as a victory. He said the majority recognized that Congress has the final say in the federal-tribal relationship.

"That's the way Indian policy gets made," he said. "If Congress wants to adjust that, they can do that and that's all this was. It was an adjustment of the status of tribal sovereign authority." NCAI and NARF, through their joint tribal Supreme Court project, submitted an amicus brief in the case.

But the attorney for a North Dakota man who challenged the legality of the Congressional fix said the decision subjects individual Indians to a tribal government in which they have limited rights. "I would imagine that the tribes are fairly excited about this ruling and believe that their sovereignty has been maintained," Alexander Reichert of Grand Forks said yesterday. "But it's at the cost of individual rights."

As a result, Billy Jo Lara faces a second prosecution over an incident for which he was already tried and sentenced by the Spirit Lake Nation of North Dakota. He served 90 days in jail for hitting a Bureau of Indian Affairs police officer who was trying to enforce an exclusion order previously issued by the tribe's court.

Federal prosecutors then moved to try Lara, a member of the Turtle Mountain Ojibwe Tribe of North Dakota, in federal court for assaulting a federal officer. Normally, the second prosecution would be barred by the U.S. Constitution's ban on double jeopardy.

But by a vote of 7-2, the Supreme Court held that the Spirit Lake Nation was acting as a "separate sovereign" when it prosecuted Lara. "Consequently, the Double Jeopardy Clause does not prohibit the federal government from proceeding with the present prosecution for a discrete federal offense," Breyer wrote for the majority.

Breyer's decision was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor, and Ruth Bader Ginsburg. In passing the Duro fix, they held that Congress exercised its board "plenary power to legislate in the field of Indian affairs."

But even though Justices Anthony M. Kennedy and Clarence Thomas agreed with the legality of the fix, they questioned the majority's reasoning. "The court's holding is on a point of major significance to our understanding and interpretation of the Constitution; and, in my respectful view, it is most doubtful," Kennedy wrote.

Thomas wrote that he was forced to "accept" the basic assumption that "Congress (rather than some other part of the federal government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity" and that "tribes retain inherent sovereignty to enforce their criminal laws against their own members."

"As this case should make clear, the time has come to reexamine the premises and logic of our tribal sovereignty cases," he said.

Justice David H. Souter surprised tribal leaders, and even Reichert, by authoring the dissent, which was joined by Justice Antonin Scalia. Souter, who normally sides with tribes in Indian law cases, said he would have upheld the Duro decision and an earlier one that divested tribes of criminal jurisdiction over non-Indians.

"It is not that I fail to appreciate Congress's express wish that the jurisdiction conveyed by statute be treated as inherent, but Congress cannot control the interpretation of the statute in a way that is at odds with the constitutional consequences of the tribes' continuing dependent status," he wrote.

Lara faces a minimal sentence if convicted in federal court, according to Reichert. "As I recall, he's not looking at much, if any, time," he said.

Get the Decision:
Syllabus | Opinion [Breyer] | Concurrence [Stevens] | Concurrence [Kennedy | Concurrence [Thomas] | Dissent [Souter]

Relevant Documents:
Docket Sheet: No. 03-107 (Supreme Court) | Briefs: U.S. v. Lara (NCAI/NARF Supreme Court Project)

Lower Court Decision:
8th Circuit: U.S. v. Lara (en banc) (March 24, 2003) | U.S. v. Lara (panel) (June 20, 2002)

Related Decisions:
9th Circuit: U.S. v. Enas (June 29, 2001) | 7th Circuit: U.S. v. Long (March 20, 2003)

Related Stories:
Supreme Court hears tribal powers case (01/22)
Supreme Court case on jurisdiction attracts attention (01/08)
Bill's tribal jurisdiction provisions contested (07/31)
Tribes air homeland security concerns (7/30)
DOJ's Supreme Court brief backs sovereignty (7/30)
Tribal jurisdiction faces test before Supreme Court (07/03)
Homeland security push leaves tribes behind (05/12)
Inouye ties sovereignty to homeland security (02/25)
Native youth victimization outpaces nation (07/17)
Natives top violent crime list again (4/8)
One in 10 hate crimes target American Indians (10/1)
DOJ: American Indians highest injured (6/25)
DOJ: Violent crime plagues Indian Country (3/19)
Violence in Indian Country (6/15)

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