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The Rise of Tribes and the Fall of Federal Indian Law
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States back tribal sovereignty in Supreme Court case
Wednesday, November 26, 2003

When the state of Montana earlier this year joined a Supreme Court brief supporting tribal sovereignty, there was cause to celebrate. Montana was known for siding against tribes before the high court -- and for bringing cases against them too.

"We used to call Montana the 'Deep North,'" National Congress of American Indians (NCAI) President Tex Hall said back in February.

Now, tribal leaders around the country have even greater reason to take notice. Earlier this month, Montana and seven other states submitted an amicus brief in a case that tribes say is an important test of their rights. The show of solidarity marks only the second time in more than 200 years that tribes and states are on the same side when it comes to sovereignty.

The unity is owed to behind-the-scenes lobbying in several key states. Tribal leaders in New Mexico, Arizona, Washington and even Montana enjoy close relationships with their governors, attorneys general and other top state officials. This year alone, these states have signed onto two briefs before the Supreme Court. One brief chastised a California county for raiding a tribal casino armed with boltcutters and a couple of police officers.

Now, California is on the tribes' side in the upcoming case U.S. v. Lara. So is Oregon, where tribal leaders and attorneys convinced the state to take its name off a brief that endorsed the boltcutter tactic. Newcomers to the coalition include Colorado, which is home to two prominent tribes, and Michigan, which has 12 federally recognized tribes.

The state participation is all the more notable because the Lara case is about jurisdiction. Normally, states are loathe to recognize tribal authority unless they absolutely have to. In the past, whenever an Indian law case was before the Supreme Court, anywhere from 12 to 24 states would argue against the tribe's position. Now, they are arguing that tribes play a vital role in ensuring public safety.

In their November 14 brief, the states wrote that they "have been working with the tribes in their respective states to strengthen cooperative relationships between tribal and state governments, particularly in the area of law enforcement."

The Lara case, to be argued January 14, concerns whether tribes have inherent jurisdiction over all Indians, not just their own members. If they do, then tribes can prosecute non-member Indians for crimes that occur on their reservations.

But if they don't, the states argue that neither tribal, federal nor state governments will be able to enforce law and order. "Should this court determine that Congress' effort to restore inherent sovereignty over non-member Indians is invalid, it will reopen a jurisdictional gap, where no government will have jurisdiction over misdemeanors committed by non-member Indians in Indian Country," the states warn in their brief.

"It is not in the interest of tribal or state law enforcement to have such a gap develop and result in lawlessness," the states add.

It's hard to tell whether the state involvement plays a role in the way the Supreme Court rules. In the boltcutter case, Inyo County v. Bishop Paiute Tribe, the justices didn't ask questions about the brief the states submitted.

But the attorney who argued that case on behalf of the tribe said the brief sent a message to the Supreme Court. "They took notice," Reid Peyton Chambers said at a panel discussion back in March.

U.S. v. Lara was decided this past March by the 8th Circuit Court of Appeals. In a 7-4 ruling, the court concluded that tribes lack independent authority over non-member Indians. The court said that Billy Jo Lara, a member of the Turtle Mountain Ojibwe Tribe of North Dakota, could not be prosecuted for the same crime by the Spirit Lake Nation and the federal government.

The ruling conflicted with one from the 9th Circuit Court of Appeals. In a unanimous June 2001 decision, the court held that dual tribal-federal prosecution does not violate the U.S. Constitution's ban on double jeopardy.

Ed. Note: Future articles will examine the briefs filed by 18 tribes, the National Congress of American Indians, the Department of Justice and other states, including the state of Idaho.

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

Get the 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:
DOJ's Supreme Court brief backs sovereignty (7/30)
Tribal jurisdiction faces test before Supreme Court (07/03)
Court rulings on tribal jurisdiction are in conflict (04/16)
Supreme Court tussles with tribal sovereignty case (04/01)
Supreme Court case too close to call for some (04/01)
Tribes and states stress cooperation not conflict (02/28)
Inouye ties sovereignty to homeland security (02/25)
Tribes seek to overturn Supreme Court (2/27)
Native man denied by Supreme Court (01/22)
Court upholds dual tribal, federal prosecutions (7/2)

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