Can Congress, using their “plenary” powers over Indian affairs,
administer federal law and policies beyond the limitations of the Constitution?
Can Congress, through federal Indian policy, rewrite history,
overturn United States Supreme Court decisions, and unilaterally
alter the “checks and balances” between the Congress and Supreme Court?
We at CERF ask the question, “Who speaks for and protects
the individual rights of American citizens under federal Indian policy?”
On January 21, 2004 the United States Supreme Court heard the case of United States v. Billy Jo Lara. Billy Jo(e) Lara is an enrolled member of the Turtle Mountain Band of Chippewa Indians. While visiting the Spirit Lake Reservation, Mr. Lara was arresting for public intoxication. During his arrest, he struck tribal officers, one of which was a Bureau of Indian Affairs officer, a federal law enforcement agent.
Mr. Lara plead guilty in tribal court, paid fines and served time in jail. Following his tribal court conviction, the United States charged Mr. Lara with assaulting a federal officer. Mr. Lara appealed claiming such a prosecution was a violation of his 5th Amendment rights under the Constitution. The question arises, does this second prosecution of Mr. Lara constitute a violation of his double jeopardy protection?
Mr. Lara moved to dismiss the federal prosecution on double jeopardy grounds but the district court denied his motion. The case then went to a panel of the the United States Court of Appeals – 8th district where the panel affirmed the prosecution, ruling the two prosecutions were derived from two separate sovereign powers – federal and inherent tribal powers, not federally delegated powers.
U.S. v. Lara (panel) – June 20, 2002
The 8th Circuit Court of Appeals, responding to a petition from Mr. Lara, sitting en banc then reversed the “panel” decision on the grounds the tribal prosecution was delegation of federal sovereignty, not an inherent tribal power and ordered the indictment dismissed.
8th Circuit: U.S. v. Lara (en banc) – March 24, 2003
One of the perplexing questions arising from the Lara case is the conflict with 1990 United States Supreme Court case of Duro v. Reina where the Court ruled that Indian tribes lacked the inherent power to prosecute crimes by anyone other than their own tribal members.
So how is it possible for the Spring Lake Nation to try Mr. Lara? While he is an Indian and an enrolled member of a tribe, he’s not a member of the Spring Lake Nation who prosecuted him.
The tribal prosecution was empowered by an amendment to the Indian Civil Rights Act of 1968, (ICRA).
Duro concluded by noting that any practical deficiencies in law enforcement schemes over non-members Indians in Indian Country resulting from the Duro decision could be addressed by Congress “…which has the ultimate authority over Indian affairs.”
Following the 1990 Duro decision, Congress amended the ICRA . The legislation redefined tribal powers of self-government to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” See the amended section: 25 U.S.C. § 1301.
This case centers the legal interpretation of the amendment to ICRA. This amendment, known as the “Duro Fix”, might be viewed as a Congressional affirmation of inherent tribal power OR as a delegation of power from Congress. The 8th Circuit Court ruled the “Duro Fix” was indeed a grant of federal authority and therefore the dual prosecutions were a constitutional violation of the double jeopardy clause.
At this point, we believe the federal government realized that if the 8th Circuit Court decision was to stand, a tribal prosecution could preempt a federal prosecution on double jeopardy grounds. This is especially important because tribes are asking for and Congress is considering giving Indian tribes full territorial powers over non-Indians through an amendment to the Homeland Security Act of 2002.
see tribal efforts to expand jurisdiction over non-Indians through Congress:
If the Court decides the “Duro Fix” is a delegation of federal powers and Congress “recognizes” full territorial powers in tribes through legislation, those powers would be applied to everyone within “Indian Country” and tribal court decisions (for better or worse) would stand as federal decisions as well.
The federal government, not wanting tribal convictions to preempt federal prosecutions, filed their brief which promotes the concept that the Mr. Lara’s tribal prosecution was an exercise of “inherent” power in the tribal government and not a federal delegation of power. This is called the “separate sovereign” doctrine.
This then is the federal governments position articulated in their brief to the Supreme Court.
Mr. Lara, having already paid his fines and served his time in jail, must now face the federal appeal of the 8th Circuit Court decision, in his favor, to the Supreme Court. Mr. Lara’s attorney filed a respondent’s brief in this case.
If the Court adopts the position of the Department of Justice, that Congress can “affirm” or “recognize” “inherent tribal powers”, tribes may wield any powers Congress decides to “affirm.” This outcome raises several concerns.
Recognizing “inherent” tribal powers could be influenced by political pressure through tribal lobbyists and big money campaign contributions from gaming tribes.
This decision would place much of federal Indian policy under federal common law which cannot be reviewed by the Supreme Court unless that policy created a clear constitutional question. Such a result would weaken the time-honored concept of checks and balances between Government branches on this important policy.
Perhaps the most important concern is the potential for disenfranchising the hundreds of thousands of non-Indians who live in “Indian Country.” This website contains numerous articles detailing why this change would be potentially catastrophic to non-Indians.
Amicus Curiae briefs have been filed in favor of the Department of Justice position by the National Congress of American Indians (NCAI) and 18 individual Indian tribes. It is interesting to note these briefs were prepared in a cooperative effort between the individual tribes, NCAI and with some Attorneys General from the Western States. In that regard, all these briefs support the idea that Congress has the right under the Constitution to define “inherent” or preexisting powers of Indian tribes which are extra-constitutional.
How Can the Government Give More Than it Possesses?
The primary position of NCAI and the 18 tribes is relatively simple. They want full territorial sovereignty over all people and activities within Indian Country without restrictions to their powers from the US Constitution or the Bill of Rights.
Note: In an unrelated case where tribes are seeking funds from the federal government, tribal attorneys argue that federal legislation cannot Constitutionally overturn federal court rulings, the exact opposite argument proposed in the Lara case.
The remaining players supporting expansion of tribal jurisdiction are several Western States. The briefs submitted by these States side with the Department of Justice. While the briefs define the States view on the law, CERF suspects the real motives for filing their briefs is unstated in these briefs.
States usually consider tribal governments as competitors for local jurisdiction and have, in the past, opposed broader tribal powers. In this case, CERF believes the States’ position is one of avoidance. If the Supreme Court decides Mr. Lara’s prosecution and conviction is a delegation of federal authority and the “Duro Fix” passed by Congress is un-constitutional, non-Indian and non-member Indian crimes may fall under the responsibility of states and local governments. States are well aware of the jurisdictional nightmare that already exists in Indian Country and appear sufficiently motivated to avoid this added responsibility that they are willing to cast off the individual rights of their own citizens to tribal jurisdictions.
While CERF does not support or defend the behavior of Mr. Lara that instigated this case, CERF does support Mr. Lara’s constructional right to be free of double jeopardy prosecutions. CERF is deeply concerned in protecting the individual rights of US citizens who live on or travel through Indian Country. Non-Indians who conduct business with or patronize tribal businesses are in danger of exposing themselves to a legal system hostile to their constitutional rights.
While the federal government is protecting their prosecutorial powers, tribes are seeking greater powers and states are hoping to avoid law enforcement responsibilities, we at CERF rise to ask the questions, “Who is standing up and protecting the individual rights of American citizens from this jurisdictional quagmire?”
This brief addresses Constitutional concerns and the rights of US citizens
In addition to the CERF brief seeking a decision on Constitutional grounds raised by this case, two additional briefs have been filed supporting, in part, some of the issues raised by the CERF brief and raising some new questions of their own.
This brief seeks to find the ICRA amendments ruled as un-constitutional as a violation the 5th Amendment (due process) and 14th Amendment (equal protection).
Three Counties Brief
This brief argues Congress does not have the power to affirm inherent powers in tribes but argues for a simple finding of delegated federal authority.
This brief argues for a simple finding of delegated federal authority to tribes
Warning: The following review was written by the Congressional Research Service. The CRS is, hypothetically, a source of information free of political bias for Congress. Each report is supposed to provide a comprehensive and balanced review of federal issues of interest to lawmakers in Congress.
The deadline for submitting briefs to the Supreme Court in Lara was Dec. 15, 2003. The government CRS report on Lara was published Dec. 18, 2003 and yet NO mention was made of the briefs opposing the federal position in this case . Additionally, the CRS ERRONEOUSLY misidentifies the Spirit Lake Tribe and the “San Carlos Tribe”.
Despite these egregious errors, we offer the flawed review that our elected federal officials will be reading!
Lara Case in the News
July 28, 2002
US Court Upholds Duro Amendment
July 29, 2003
Lara Case Tied Issues in Pending Legislation
October 1, 2003
Lara Accepted for Argument Before Supreme Court
November 22, 2003
Tribal Argument Turns 180 Degrees
November 26, 2003
NCAI and NARF’s PR Efforts Lack Full Truth
December 2, 2003
Indian Country Today’s Four Part Lara Case Articles
December 19, 2003
Defense Attorney Discusses Lara Case
January 21, 2004
Lara Case Heard Before the Supreme Court
January 27, 2004
Indian Country Today Writer Suggests Feds Defer to Tribal Courts