indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439   fax: 202 318 2182
Kill The Tobacco Master Settlement Agreement
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Supreme Court case on jurisdiction attracts attention
Thursday, January 8, 2004

When the U.S. Supreme Court meets later this month to hear a case testing jurisdiction in Indian Country, the justices will have plenty of competing arguments to consider.

In addition to the two parties in U.S. v. Lara, a surprising number of interests have joined the dispute. The largest inter-tribal organization, 18 tribes, 14 states, three counties, an anti-treaty rights group, an Indian family and the nation's criminal defense lawyers filed briefs in the case.

Not since the court's infamous 2000-2001 term, when tribes lost five of six cases, has an Indian law case drawn this level of attention. It's all owed to the subject matter -- whether or not tribes have inherent authority to prosecute members of other tribes.

According to the Bush administration, the tribes and some of the states, the answer is yes. They argue that law enforcement on reservations is more effective when tribal governments are active and equal participants.

At the other end of the spectrum is a diverse group that includes prosecutors in three counties, the National Association of Criminal Defense Lawyers, the Citizens Equal Rights Foundation (CERF) and an Indian family in Montana allied with CERF. They contend that tribes have jurisdiction only over their own members, not other Indians.

Somewhere in the middle is a group of six states led by Idaho, whose most recent attorney general was notorious for opposing tribal sovereignty before the Supreme Court. They support shared tribal, state and federal law enforcement but stop short of endorsing the views advanced by the Bush administration and the tribes.

All of this comes to a head January 21, when the justices will take an hour to weigh the varying arguments. And when they do, they will reach back to a case the court decided in 1990. In Duro v. Reina, the Supreme Court held that tribes lack inherent authority over Indians of other tribes.

Members of Congress quickly concluded that the decision was contrary to "two hundred years of the exercise by tribes of criminal misdemeanor jurisdiction over all Indians residing on their reservations," according to a legislative report issued at the time. So lawmakers passed an amendment -- now known as the Duro fix -- to affirm that tribes have jurisdiction over "all Indians" regardless of membership.

According to the government and its supporters, the fix means Billy Jo Lara, a member of the Turtle Mountain Chippewa Tribe, is subject to the laws of the Spirit Lake Nation. Under those laws, Lara was convicted of assaulting a Bureau of Indian Affairs police officer, resisting arrest and public intoxication. He was sentenced to 90 days for the assault on the officer.

But since Lara was also indicted in federal court for the assault, his supporters contend the prosecution by the tribe and the federal government for the same crime violates the U.S. Constitution's ban on double jeopardy. The 8th Circuit Court of Appeals agreed, concluding that the Duro fix is a delegation of power by Congress instead of a recognition of the sovereign rights tribes have always possessed.

For CERF, a national group that opposes all forms of tribal authority over non-Indians, the matter has already been settled. "Congress cannot override the [Duro] decision through legislation," the brief states.

To the Morris family, whose members are active within CERF, the issue is a bit more personal. When Thomas Lee Morris was 17, he was convicted by the Confederated Salish & Kootenai Tribes for speeding. As a member of the Leech Lake Chippewa Tribe, his family contends the conviction is not permitted under Duro.

"While this particular accusation is not itself momentous, determining whether Congress can select nonmember Indians, and only Indians, for criminal prosecution in the courts of sovereigns which exclude them from full and equal rights of political participation on the ground of their ethnicity and which sovereigns and courts are unbounded by the Constitution is momentous indeed," the family writes in its lodging. Thomas Lee is now 20.

The defense lawyers take a similar approach. "The question is what Congress has done, rather than what Congress can do," the brief states. The Duro fix, the organization argues, came too late.

The attorneys in Lewis County in Idaho, Mille Lacs County in Minnesota and Thurston County in Nebraska spend most of their brief arguing that reservations located within their borders don't exist. "Today, armed with tens of millions of dollars in casino profits, Indian tribes are challenging the non-reservation status of these areas and other areas throughout the United states," they complain.

For the Idaho-led coalition, the answer is not so simple. These states agree that the Duro fix is a "congressional attempt to 'restore' retained inherent authority to Indian tribes." But they reject the "extravagant view" that Congress can do whatever it likes when it comes to Indian affairs.

That view is central to the Department of Justice and tribal stance. "Congress has plenary authority to alter the balance of federal and state criminal jurisdiction in Indian Country," the government's final brief argues.

For the tribes, they are mindful of being treated as equals for homeland security, domestic violence and other law enforcement purposes. Currently, NCAI and other tribes are lobbying Congress for another fix that would ensure tribes can arrest non-Indians suspected of terrorist attacks. A Supreme Court victory in the Lara case will ensure the legality of these efforts.

The answer won't be known for several months, though. A decision from the court is expected in the summer.

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)

Copyright 2000-2003 Indianz.Com
More headlines...
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Olympic medalist visits Pine Ridge Reservation (9/12)
Bryan Brewer: Bill for Native language immersion a high priority (9/12)
Sen. Tester applauds approval of final Cobell settlement payout (9/12)
Kenneth Deer: UN meeting an opportunity for indigenous peoples (9/12)
Judge won't issue injunction in Pojoaque Pueblo compact dispute (9/12)
Ex-manager for Shingle Springs Band's casino told to pay $2.4M (9/12)
Briefs filed in lawsuit over United Keetoowah Band's gaming site (9/12)
Quapaw Tribe expands agricultural program at casino restaurant (9/12)
Judge approves motion to distribute Cobell settlement payment (9/11)
Native Sun News: Final Cobell payment might 'almost' be ready (9/11)
Mark Trahant: Affordable Care Act is worthy of debate in election (9/11)
Gyasi Ross: Support Quechan skate park and self-determination (9/11)
Disaster declared after Moapa Paiute Reservation hit by flooding (9/11)
Brian Pierson: Recent federal court decisions affecting Indian law (9/11)
Navajo Nation presidential candidate a target over fluency issue (9/11)
Northern Arapaho Tribe withdraws from joint Wind River council (9/11)
Editorial: Standing Rock Sioux Tribe trying to make budget work (9/11)
University of Utah creates scholarships for students of Ute Tribe (9/11)
Nez Perce Tribe seeks update to historic trail from 1877 journey (9/11)
Miccosukee Tribe seeks removal of judge in dispute with lawyers (9/11)
Jessica Carro: Native people treated like foreigners in Argentina (9/11)
Peru investigates murders of four prominent indigenous leaders (9/11)
SCIA sets hearing on bill to block Tohono O'odham Nation casino (9/11)
Forest County Potawatomi Tribe and state in compact arbitration (9/11)
Choctaw Nation reduces height of casino hotel amid FAA concern (9/11)
Seminole Tribe wins ruling over state taxation at gaming facilities (9/11)
Maine tribes hopeful for casino as lawmakers examine new study (9/11)
Editorial: Mohegan Tribe's gaming plan is right for Massachusetts (9/11)
Native Sun News: Tribes worried about Black Hills uranium mines (9/10)
Native Sun News: DOJ report highlights activity in Indian Country (9/10)
Mark Trahant: Native voters bring element of surprise in election (9/10)
Audio from Senate Indian Affairs Committee hearing on irrigation (9/10)
Audio: House Subcommittee on Indian and Alaska Native Affairs (9/10)
9th Circuit to broadcast arguments in Big Lagoon casino dispute (9/10)
Ruben Balderas: Tohono O'odham Nation casino breaks promise (9/10)
Jay Daniels: Return per cap if you oppose resource development (9/10)
Opinion: Decision signals shift on state taxation in Indian Country (9/10)
Julianne Jennings: Fear of witches and Indians in Massachusetts (9/10)
Cobell buy-back program includes base offer of $75 for interests (9/10)
Chippewa Cree Tribe only receives 4.5 percent of loan revenues (9/10)
Oglala Sioux Tribe stands behind police chief despite complaints (9/10)
Fort Sill Apache Tribe contributes $1500 to Democratic candidate (9/10)
Alabama AG vows to drop Indian gaming case if he loses decision (9/10)
Opinion: Menominee Nation off-reservation casino a win for state (9/10)
Mohegan Tribe spent $100M on New York commercial casino bid (9/10)
Blog: Many interests at stake for expansion of gaming in Florida (9/10)
Native Sun News: Native woman warrior honored at White House (9/9)
Barry Brandon: DOJ places a chokehold on tribal loan enterprises (9/9)
Steven Newcomb: Court describes Native activities as 'parasitic' (9/9)
Vince Two Eagles: Indian family seen as threat in urban Chicago (9/9)
Chippewa Cree Tribe was awarded $1.1M over payday loan deal (9/9)
Native woman competes for the top prize on 'The Biggest Loser' (9/9)
Moapa Paiute Tribe evacuates more than 100 due to flash floods (9/9)
Vice chairman from Nisqually Tribe appears in court in theft case (9/9)
North Dakota tribe holds primary for chairman and council seats (9/9)
Montana tribes receive $2M in grants for language preservation (9/9)
Opinion: Salt River Tribe must deal with growing gang problems (9/9)
Opinion: Cherokee Nation loses land to land grab a century ago (9/9)
Opinion: Caddo language word for 'friendly' gave name to Texas (9/9)
Opinion: NFL leader must go over handling of domestic violence (9/9)
Cherokee Nation to announce $80M retail development at casino (9/9)
Non-Indian gaming facility in New York is highest-grossing in US (9/9)
Don Marks: First Nations unfairly pushed to share casino revenue (9/9)
Shoshone-Bannock Tribes name manager for hotel next to casino (9/9)
Authorities investigate shooting by Poarch Creek casino entrance (9/9)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.