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Tribal jurisdiction faces test before Supreme Court
THURSDAY, JULY 3, 2003

The Bush administration is appealing a case to the Supreme Court that tribal leaders say is an important test of their sovereign rights.

In March, a divided panel of the 8th Circuit Court of Appeals concluded that tribes in five Plains states lack inherent authority over non-members. The 7-4 ruling struck down dual tribal and federal prosecution of an Indian man convicted by the Spirit Lake Nation of North Dakota.

The majority said the tribe's criminal jurisdiction stemmed from Congress -- not its own sovereignty -- thereby violating the U.S. Constitution's ban on double jeopardy "The Spirit Lake Nation exercises authority over external relations only to the extent that such a power has been delegated to it by Congress," Judge Roger L. Wollman wrote.

The ruling is in direct conflict with holdings in two other circuits, making the dispute ripe for resolution by the nation's highest court. In fact, that is what the 8th Circuit majority suggested on March 24.

"We conclude that the distinction between a tribe's inherent and delegated powers is of constitutional magnitude and therefore is a matter ultimately entrusted to the Supreme Court," the court stated.

The issue is significant one for tribes nationwide due to the Supreme Court's decision in Duro v. Reina. The 1990 case, decided by a 7-2 vote, held that tribal governments only have criminal jurisdiction over their own members.

Congress responded the following year by enacting what is known as the "Duro fix," which was legislation that recognized inherent tribal sovereignty. The 9th Circuit, in June 2001, and the 7th Circuit, in March of this year, upheld the underpinnings of the statute, agreeing that tribes possess criminal jurisdiction over all American Indians and Alaska Natives.

Through the Tribal Sovereignty Protection Initiative, a joint venture of the National Congress of American Indians and the Native American Rights Fund, tribes are weighing their response. The case was discussed at NCAI's mid-year session two weeks ago and will be the subject of another meeting July 22-24 in Portland, Oregon.

With Bush administration backing, the case could prove a win for tribal rights in an era where the Supreme Court has been overwhelmingly negative. Tribes have lost 80 percent of cases in the last 20 years.

The issue is also significant in light of a tribal push to have Congress recognize their authority over non-Indians through homeland security legislation. A hearing on S.578, introduced by Sen. Daniel Inouye (D-Hawaii), will be held July 30 before the Senate Indian Affairs Committee.

Solicitor General Ted Olson, who handles Supreme Court litigation for the Bush administration, moved to appeal the case on June 12. The Department of Justice is being given extra time to file a petition for writ of certiorari, due by July 22.

The 8th Circuit ruling in U.S. v. Lara, No. 01-3695, covers tribes in the states of North Dakota, South Dakota, Minnesota, Nebraska and Iowa.

The 7th Circuit case is U.S. v. Long, No. 02-1473. The circuit covers tribes in Wisconsin. It applied to the Menominee Nation, whose federal status was terminated, and later restored, by Congress. The court drew no distinction in affirming the tribe's sovereignty.

The 9th Circuit case, U.S. v. Enas, No. 99-10049, drew the attention of American Indian Movement activist Russell Means. In order to avoid prosecution by the Navajo Nation for a domestic violence-related dispute, he contends that tribes lack jurisdiction over non-tribal members.

Means' attorney, John Trebon, participated in oral arguments in the Enas case. The Supreme Court let the decision stand in January 2002.

Relevant Documents:
Docket Sheet: No. 02A1059 (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)

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