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Supreme Court case impacts homeland security proposal
Tuesday, July 29, 2003

The Bush administration is urging the Supreme Court to affirm the inherent powers of tribal governments in a case with ramifications for homeland security legislation being debated this week.

The Department of Justice wants to overturn a decision that struck down dual tribal and federal prosecution of an American Indian man who committed a crime on a North Dakota reservation. The 8th Circuit Court of Appeals in March held that the Spirit Lake Nation lacked jurisdiction over him because he was a member of another tribe.

In a July 22 brief, government attorneys argue that the ruling conflicts with the 9th Circuit, which affirmed tribal jurisdiction over all American Indians. Unless the Supreme Court steps in and reconciles the decisions, "law enforcement in Indian Country will be significantly undermined," Solicitor General Ted Olson wrote.

At issue is legislation enacted in 1991 that recognizes the sovereign power of tribes to exercise criminal jurisdiction over "all Indians," regardless of membership. Commonly referred to as the "Duro fix," it was named after the Supreme Court's 1990 Duro v. Reina decision, which held that tribes, lacking Congressional or treaty support, have authority only over their own members.

The theory behind Duro fix is the same being applied to legislation that will be debated before a Senate committee tomorrow. Sen. Daniel Inouye (D-Hawaii) has introduced legislation that recognizes tribal sovereign powers over non-Indians.

Many tribal leaders support the bill, in the form of amendments to the Homeland Security Act of 2002, because it would counteract a series of negative Supreme Court decisions that have chipped away at their authority. They say it ensures that Indian Country is prepared for terrorist or biological attacks because tribal governments, as first responders, would have the same powers of local and state governments.

"The exclusion of tribal governments in implementation of a national homeland security strategy places both Indian and non-Indian populations at risk," said National Congress of American Indians (NCAI) President Tex Hall in a statement about the bill.

The Justice brief backs the underpinnings of the Duro fix, which was in the form of an amendment to the Indian Civil Rights Act (ICRA) of 1968. "Nothing in the Constitution," Olson writes, "prevents Congress from prospectively redefining the scope of tribal sovereignty as it did in the ICRA amendment, to include the power to prosecute non-member Indians."

The 9th Circuit isn't the only court to recognize inherent tribal authority. In a decision this past March, the 7th Circuit upheld the criminal jurisdiction of the Menominee Nation, whose federal status was terminated, then later restored, by Congress.

The Supreme Court has given Billy Jo Lara, the defendant in the 8th Circuit case, until August 21 to reply to the Bush administration's petition for writ of certiorari. If accepted, the case would likely be heard next year.

Get the Brief:
Petition: U.S. v. Lara (July 22, 2003)

Relevant Documents:
Docket Sheet: No. 03-107 (Supreme Court) | Tribal Government Amendments to the Homeland Security Act of 2002 (S.578)

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

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