by Lisa Morris
In 1990, the U.S. Supreme Court ruled that Indian tribes had no authority to criminally prosecute Indians from other tribes. (Duro v. Reina, 1990). However, the Court also wrote that Congress could address possible shortcomings in tribal jurisdiction because it “has the ultimate authority over Indian affairs.”
The tribes claimed that this decision created a jurisdictional “gap” that needed fixing, and soon afterwards, Congress amended the Indian Civil Rights Act (ICRA) to include “the inherent powers of Indian tribes…to exercise criminal jurisdiction over all Indians.” Thus, tribal governments were given criminal jurisdiction over non-member Indians. (Westlaw, United States v. Billy Jo Lara, No. 01-3695, June 24, 2002, page 5).
Recently, a series of U.S. Supreme Court decisions have confirmed that tribal governments don’t have jurisdiction over non-Indians. Afterward, according to a November 2002 article in Indian Country Today, “…Justices O’Connor and Breyer met with Indian jurists and leaders, (and) Justice O’Connor was asked…whether the Court was willing to re-examine some of the older, more troubling cases in Indian law, and, perhaps, overrule them… She said that ‘maybe’ it was time for tribes to approach Congress to seek a legislative solution."
During a February 2002 hearing, Senate Committee on Indian Affairs Chairman Daniel Inouye was recorded as saying, "…we should act on this trend. Can we impose upon both of you …for assistance in drafting appropriate legislation? We are not in the practice of overturning the Supreme Court. We have done that in some cases, like the Duro v. Reina case, but it is not common practice here. May we call upon both of you?" After receiving an affirmative answer, Senator Inouye went on, “…It appears…that more and more the Court seems to be applying a principle that tribal exercise of criminal, civil, judicial, or regulatory jurisdiction over non-members would be inconsistent with the domestic status of tribal governments. Statutorily, do you believe we can prevent the Court from applying this principle?"
Thus, the tribal establishment is claiming there is another jurisdictional “gap” that needed fixing, and tribal entities are proposing the "Tribal Governance and Economic Enhancement Initiative", a 2003 legislative proposal countering "pro" non-member Supreme Court decisions in Hicks and Atkinson. According to this initiative, “Congress should reaffirm the fundamental principle that Indian tribes retain their inherent right to govern all people and places within Indian country unless that power has been specifically limited by treaty or federal statute. Indian tribes, therefore, would be squarely recognized as the primary governments within Indian country with broad civil and criminal court jurisdiction and broad regulatory authority, including taxation.”
This history, and these developments raise some very fundamental questions. Do tribal governments have an inherent right to jurisdiction over non-members? Can Congress pass a law overturning a Supreme Court decision (Duro v. Reina) and subject nonmember Indians to tribal jurisdiction when they are excluded from participation in these governments? If so, can Congress pass a similar law subjecting non-Indians to that same tribal jurisdiction?
According to the Legislative History in the 1991 House Report, No. 102-61, “Throughout the history of this country, the Congress has never questioned the power of tribal courts to exercise misdemeanor jurisdiction over non-tribal member Indians in the same manner that such courts exercise misdemeanor jurisdiction over tribal members.” But Professor L. Scott Gould, in “The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution,” disagrees. "The (Supreme) Court rejected the Ninth Circuit's contacts-based approach. The test constituted little more than implied consent, and would apply as well to non-Indians, who form the numerical majority on many reservations. Since Oliphant v. Suquamish rejected implied consent as a basis for jurisdiction over non-Indians, the similar status of non-member Indians required a similar result…” “The Court opined…that the tribe's powers were subject to the same limitations." Thus the Supreme Court considered Duro's relationship with the tribe as the same as a non-Indian's. Will Congress pass a law putting non-Indians into the same legal position as the amended ICRA put nonmember Indians? If so, what constitutional authority will they have for the law?
Both Native Americans and non-Indians on reservations are U.S. Citizens. Court rulings or legislative acts that diminish a citizen’s constitutional rights on the basis of tradition are no more justified than similar slavery or “separate but equal” justifications of the past. It has been argued that the Court should allow such non-constitutional Indian jurisdiction and tribunals because, in some cases, it is allowed in territories of the United States that aren’t slated to become part of the United States when fundamental rights are not involved. However, in this case, the “territory” at issue has been part of the United States for over a century and the rights involved are fundamental.
In the Nevada v. Hicks decision, Supreme Court Judges Souter, Kennedy and Thomas referred to the earlier Oliphant v. Suquamish Indian Tribe (1978) decision ruling that tribes lack inherent sovereign power to prosecute non-Indians for misdemeanors. This confirmed the general principle that tribes lack civil jurisdiction over nonmembers (Montana v. United States). The important point here is that tribes are not bound by either state or federal constitutions protections. In a recent brief in support of tribal government, the State of Montana conceded “that tribal assertion of authority over non-Indians is ‘replete with constitutional issues.’” They also admitted that the 1990 ICRA amendments have a “significant racial component” in relation to jurisdiction over non-member Indians. In other words, there is a danger that constitutionally protected rights of due process and equal protection for non-members would be jeopardized. In addition, the differences between the treatment of Indians and non-Indians in the 1990 congressional amendments to the ICRA are racist.
Pre-constitutional tradition, along with the purported inefficiency of the current system, are reasons tribal governments claim a need for legal jurisdiction over all people within reservation boundaries. However, constitutional issues clearly exist and must be addressed. Unlike a similar situation of a U.S. citizen moving from one state to another, non-members, whether Indian or not, including those whose ancestors resided in that area prior to it becoming a reservation, can never become voting members of a tribal community. They will never obtain the rights and privileges of that community, be allowed to vote, hold office, or serve on a tribal jury. Their constitutional rights must be protected and should not be ignored for the sake of tradition or convenience.