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
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Supreme Court hears tribal powers case
Thursday, January 22, 2004

The U.S. Supreme Court heard oral arguments on Wednesday in a case testing the relationship between the federal government and tribal nations.

During an hour of debate, the justices posed difficult questions to both parties in the pivotal dispute. They openly struggled to reconcile an earlier decision of the court with legislation aimed at overturning that precedent.

The case, U.S. v. Lara, started out about jurisdiction and whether tribes can prosecute members of other tribes. It soon turned into a larger debate about the ability of Congress to define the parameters of tribal sovereignty.

Edwin S. Kneedler, a Department of Justice attorney, told the court that federal law recognizes tribal jurisdiction over all Indians, regardless of membership. "Congress has plenary power over the exercise of a tribe's own powers," he said.

But some members of the court had trouble accepting this line of thought. Led by Justice Antonin Scalia, they wondered whether Congress could end up subjecting non-Indians to tribal governments.

"That's a step I'm not prepared to contemplate," Scalia said.

Agreeing with these sentiments was the lawyer for Billy Jo Lara, an Indian man who served time in tribal court for an offense for which the federal government later indicted him. Alexander F. Reichert, a public defender from North Dakota, argued that Congress went too far by overturning a Supreme Court decision.

"Congress cannot restore tribal sovereignty, by definition," he said.

The justices, however, weren't inclined to side with Reichert either. They pressed him to explain what keeps lawmakers from changing the nature and status of tribal sovereignty.

"I don't see anything in the Constitution that would stop Congress from doing that," said Justice Stephen G. Breyer.

At issue is a piece of legislation commonly known as the "Duro fix." Passed in 1991, it was named for a Supreme Court decision handed down a year before. In Duro v. Reina, the court ruled that tribes lack authority to prosecute members of other tribes.

The ruling stirred a fury in Indian Country that Congress was quick to address. Lawmakers said the fix "recognized and affirmed" the inherent power of tribes to exercise criminal jurisdiction over "all Indians."

How the law is interpreted is key to resolution of the case. It can be viewed as illegal, leaving the Duro decision intact. Or it can be seen as a delegation of federal power to tribes, in which case dual tribal-federal prosecution is barred by the double jeopardy clause of the Constitution.

Kneedler argued the third scenario -- that the fix was a proper exercise of Congressional power. He said Supreme Court cases predating Duro contemplated the need for Congress to "modify" the rules of tribal sovereignty.

Justice David H. Souter questioned whether adopting this argument would mean rewriting the concept of tribal sovereignty the court has adopted in the past 30 years. In several decisions, the justices have said that a tribe can only exercise powers that are not inconsistent with its status as a "domestic dependent nation."

"The tribe can't have that power if we consider the tribe to be a subordinate sovereign," Souter said.

In addition to attacking the law itself, Reichert said it delegated federal authority to tribes. He said Lara, who had been ousted from the Spirit Lake Reservation in North Dakota for domestic violence incidents before being convicted for punching a Bureau of Indian Affairs officer, should not be punished twice for the same crime. Lara is a member of the Turtle Mountain Chippewa Tribe, also of North Dakota.

The Bush administration brought the dispute to the court's attention because lower courts have arrived at different conclusions. The 9th Circuit concluded that Congress properly recognized tribal sovereignty while the 8th Circuit disagreed. Both circuits cover a significant number of reservations.

The National Congress of American Indians (NCAI), the largest inter-tribal organization, 18 tribes and several states have sided with the government in favor of the Duro fix. Another group of states supported the government in part but questioned whether Congress has absolute power to change the federal-tribal relationship.

The National Association of Criminal Defense Lawyers, three counties with reservation lands, the Citizens Equal Rights Foundation (CERF) and an Indian family in Montana allied with CERF filed briefs in support of Lara. They cautioned against an expansion of tribal jurisdiction.

A decision is expected by July.

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:
Lara case called most important of generation (1/21)
Supreme Court case on jurisdiction attracts attention (01/08)
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:
Gathering scheduled in June at site of former BIA insane asylum (4/29)
Native Sun News: Tribal college student overcomes challenges (4/29)
Ivan Star Comes Out: Ancestors are gone but language lives on (4/29)
Mike Rounds: Eliminate 'hateful' and 'paternalistic' federal laws (4/29)
Harlan McKosato: White privilege fuels Donald Trump's fanbase (4/29)
Indian Health Service faulted for lengthy waits for patient care (4/29)
Mescalero Apache woman to compete for Miss United States (4/29)
Environmental Protection Agency pays little to tribes for spill (4/29)
Measure to declare bison as official mammal ready for Obama (4/29)
John Wayne's negative views about tribes resurface in debate (4/29)
Chumash Tribe picks Kenneth Kahn as first new leader in years (4/29)
Mille Lacs Band announces upgrades as casino marks 25 years (4/29)
Timbisha Shoshone Tribe sees warmer reception to casino bid (4/29)
Florida racks up legal bills in gaming fight with Seminole Tribe (4/29)
Rosebud Sioux Tribe sues Indian Health Service over shutdown (4/28)
Senate Indian Affairs Committee approves eight bills at meeting (4/28)
Lakota Country Times: Oglala Sioux Tribe to debut justice center (4/28)
Native Sun News: Northern Cheyenne official fired from tribal job (4/28)
Native Sun News: Comments sought on Black Hills mine cleanup (4/28)
Editorial: Native Sun News endorses Hillary Clinton for president (4/28)
Cronkite News: EPA slammed for response to Gold King Mine spill (4/28)
Steve Russell: Donald Trump advisor accuses tribes of terror plot (4/28)
Alex Jacobs: Hillary Clinton must answer to role in Honduras coup (4/28)
Northwest tribes inch closer to reburial of Kennewick Man remains (4/28)
Santee Sioux Tribe hosts task force to address substance abuse (4/28)
Huge crowds flock to New Mexico for annual Gathering of Nations (4/28)
Muckleshoot Tribe to host $50K 'Gold Cup' for Indian relay racing (4/28)
Member of Puyallup Tribe develops 'Teepee' tribal directory app (4/28)
Man in long fight with Shingle Springs Band faces longer sentence (4/28)
Tunica-Biloxi Tribe enters gaming agreement with Mohegan Tribe (4/28)
Timbisha Shoshone Tribe sees casino as a path to self-sufficiency (4/28)
Forest County Potawatomi Tribe announces another hire at casino (4/28)
Mashpee Wampanoag Tribe welcomes rejection of rival casino bid (4/28)
Senate passes measure to include Indian Country in tourism plans (4/27)
Amanda Blackhorse to deliver commencement speech at Haskell (4/27)
Native Sun News: Standing Rock Sioux Tribe aims to stop pipeline (4/27)
Lakota Country Times: Pine Ridge artist gains national recognition (4/27)
Brandon Ecoffey: 'Bull Dawg' represents the Oglala Lakota Nation (4/27)
Mark Trahant: Tribes endorse Native candidates for US Congress (4/27)
John Thune: Tribal citizens suffer with Indian Health Service care (4/27)
Cronkite News: Tribes support more protections at Grand Canyon (4/27)
Gabe Galanda: A moral responsibility to stop tribal disenrollment (4/27)
Vernice Moncooyea Willis: Bernie Sanders deserves our support (4/27)
Jennifer Denetdale: University must stop celebrating genocide (4/27)
Eastern Cherokee group hails Tribal Marijuana Sovereignty Act (4/27)
Leader of Fort Peck Tribes blames baby's death on drug abuse (4/27)
Chippewa Cree Tribe and FBI investigate theft of drugs at clinic (4/27)
Former comptroller of Crow Tribe accused of embezzling $28K (4/27)
Congress set to pass bill to declare bison as national mammal (4/27)
Donald Trump and Hillary Clinton moving closer to nominations (4/27)
Fond du Lac Band won't confirm plan for site adjacent to casino (4/27)
Graton Rancheria on track to complete $175M casino expansion (4/27)
Pokagon Band to debut casino expansion project by end of year (4/27)
Connecticut tribes delay decision on potential casino until 2017 (4/27)
Oregon Lottery official fired as Lewis and Clark ads come down (4/27)
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.