indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Native American Bank - Native people investing in Native communities
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...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
National Park Service finalizes rule for tribal gathering of plants (6/30)
Five tribes donate over $500K to Democratic party's convention (6/30)
Bureau of Indian Affairs still hoping to reach land-into-trust goal (6/30)
Port Gamble S'Klallam Tribe secures proclamation for 410 acres (6/30)
Seminole Tribe takes a big step forward with land-into-trust bid (6/30)
Tohono O'odham Nation signs health self-governance compact (6/30)
Native Sun News: Lakota and Cheyenne people join forces again (6/30)
Lakota Country Times: Paper continues to reach large audience (6/30)
Cronkite News: Senate committee takes on tribal water issues (6/30)
Dave Archambault: A day for all of Indian Country to remember (6/30)
Vi Waln: Don't let politics get in way of our children's education (6/30)
Leonard Peltier: My last best hope for freedom lies with Obama (6/30)
Shinnecock Nation weighs options to reclaim ancestral territory (6/30)
White Mountain Apache Tribe welcomes 'significant' discovery (6/30)
Confederated Salish and Kootenai Tribes press for water pact (6/30)
Mille Lacs Band slams county for ending law enforcement deal (6/30)
County might end Grand Traverse Band land-into-trust appeal (6/30)
Tlingit and Haida Tribes acquire government contracting firm (6/30)
Donald Trump approved Indian gaming attack ads in New York (6/30)
Judge focuses on Mashpee Wampanoag Tribe casino decision (6/30)
Eastern Cherokee youth push for change in gaming per capita (6/30)
Buena Vista Rancheria signs updated Class III casino compact (6/30)
Connecticut tribes still working on plan for potential new casino (6/30)
Effort builds for missing and murdered Native women and girls (6/29)
Native talent among diverse group asked to join film academy (6/29)
Richard Peterson: New era of tribal-state cooperation in Alaska (6/29)
Mark Trahant: A Native champion on the ballot in South Dakota (6/29)
Lakota Country Times: Outdoor movies a success at Pine Ridge (6/29)
Delphine Red Shirt: American history ignores tribal perspective (6/29)
Gabe Galanda: The growing chorus against tribal disenrollment (6/29)
Woman from Crow Tribe dies after brutal attack on reservation (6/29)
Man charged with murdering girlfriend on Fort Peck Reservation (6/29)
Nooksack Tribe fires elder who spoke out against disenrollment (6/29)
Mashpee Wampanoag Tribe gets ready for 95th annual powwow (6/29)
Citizen Potawatomi Nation members serve on city commission (6/29)
A Tribe Called Red goes to Alaska next month for Native benefit (6/29)
Sorry but DNA tests cannot confirm a person's Native ancestry (6/29)
Church denies connection to vandalism at Otomi site in Mexico (6/29)
Former Choctaw Nation casino worker gets two months for theft (6/29)
Tohono O'odham Nation shares $1.2M from controversial casino (6/29)
Grande Ronde Tribes consider hotel but not a casino at old track (6/29)
Meskwaki Tribe looks for fugitive reportedly seen at casino hotel (6/29)
Supreme Court puts an end to another tribal jurisdiction dispute (6/28)
Native women hail Supreme Court decision on domestic violence (6/28)
Navajo Nation leaders reflect on historic Supreme Court session (6/28)
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.