Quotes From:

BRIEF AMICUS CURIAE OF THOMAS LEE MORRIS,

ELIZABETH S. MORRIS AND ROLAND J. MORRIS,

SUPPORTING RESPONDENT

JON METROPOULOS

Counsel of Record

GOUGH, SHANAHAN, JOHNSON & WATERMAN

33 S. Last Chance Gulch

P.O. Box 1715

Helena, Montana 59624-1715

(406) 442-8560

“The House Report acknowledged that the statute on which the amendments rely to define “Indian,” 18 U.S.C. §1153, “made no distinction regarding the tribal membership of the Indian. The status of non-member Indians…was clarified in United States v. Rogers, 45 U.S. (How.) 567(1846) where the Supreme Court held that the statute applied to Indians as a class, not as members of a tribe, but as part of the family of Indians. 45 U.S. 573.” The legislative history also notes: “Courts have repeatedly held that the term ‘Indian’ includes any Indian in Indian Country, without regard to tribal membership. (Citations omitted) [T]he Committee intends to clarify precisely that the inherent powers of Indian tribes includes the authority to exercise criminal misdemeanor jurisdiction over all Indians in Indian country.” U.S. Code Congressional and Administrative News, Vol. 2, 102d Congress, 1st Session, 1991 at 375…”

“According to the 2000 Census, there are 4,119,301 Indians in the United States, of which, according to the Department of Interior, 1,698,483 are enrolled in a tribe… Under controlling federal law, one can be an Indian and not be a tribal member. Race is the key, immutable factor. Thus, in fact, the ICRA amendments consigned in excess of 4 million U.S. citizens, because of their race, to non-constitutional prosecution and punishment.”

“The fact that every person swept into tribal criminal jurisdiction is, by his or her race, an Indian, demonstrates that this is a racial, not a “political” classification. No compelling federal interest justifies this, and the amendments are not narrowly tailored. Viable alternatives that do not require a racial classification exist. Congress could either expressly empower states to prosecute misdemeanor crimes allegedly committed by all nonmembers or require federal authorities to do so. While these remedies may be unpalatable to the politically powerful forces that pushed for the ICRA amendments, they demonstrate that Congress was not required to employ this racial classification.”

“Moreover, the amendments purport to consign U.S. citizens – nonmember Indians – to prosecution and punishment by tribunals of sovereigns which are not bound by the Constitution and which exclude them, because of their ethnicity, from full and equal rights of participation in the political life of the prosecuting tribe. The goal of prosecuting misdemeanor crimes cannot justify the deprivation of rights, within the territorial confines of the United States, that results from subjecting certain citizens, solely because of their race, to non-constitutional criminal tribunals.”

“Morrises join with Idaho in pointing out, however, that the acceptance of Petitioner’s [DOJ’s] arguments in support of Congress’ attempt to affirm inherent sovereignty which this Court held no longer existed has tremendous consequences for the future of not only the civil rights of Indians but, perhaps, for our constitutional structure resting on the federalism of a durable union of states. Petitioner argues, in rather bland and unrevealing terms, that under the Indian Commerce Clause, Congress may empower tribal governments to exercise non-constitutional, sovereign power over U.S. citizens with no connection to the tribe. Petitioner argues that Congress can take such action to “reaffirm” this power despite this Court’s contrary holding, meaning as a practical matter that such congressional action is unreviewable. Because there is no beginning point in the Constitution for such broad, unreviewable power, Petitioner’s approach contains “no logical stopping point.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275-76 (1986).   If there are cases where a strong argument can be made that in times of national peril, perhaps, certain rights may be limited in particular ways and as to particular people – though not defined as to their race – policing up misdemeanors is not that type of situation. If it is, there truly is no limit to federal power, at least in Indian country. Because the map of this Nation is spangled with Indian reservations, the rule Petitioner advocates, if accepted, would in due time allow an incredible flowering of federal power, via these reservations, to the great detriment of the states.”

“The plain language of the ICRA amendments establishes a racial classification. In Section 1301(2), Congress defined the self-government power of Indian tribes in an explicitly racial manner as ‘mean[ing] the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.”

“First, as a factual matter, when Congress got around to holding hearings on the ICRA amendments after their initial enactment, the legislative history makes it unequivocally clear that it understood that it was subjecting Indians, as a race, not as members of tribes, to tribal criminal jurisdiction.”

“Even if Congress limited the class of people it subjected to tribes’ pre-constitutional criminal jurisdiction to tribal members (i.e., depriving “only” 1.7 million citizens of their rights rather than 4 million) every single one of those people would be an “Indian” by race. Not one non-Indian would suffer that treatment. At the very best, in that case, the person’s membership in a tribe would be an additional factor, but race would be the one indispensable and obviously immutable characteristic of the class of U.S. citizens given such ‘special treatment.’”

“Only in narrowly defined and extraordinary circumstances may the United States prosecute citizens of the United States in tribunals not required to accord the defendant all the protections of the Constitution and its amendments. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). The need or desire to prosecute misdemeanor defendants cannot represent such circumstances. Yet the ICRA amendments, leaving aside for the moment their racially discriminatory aspect, clearly, knowingly subject U.S. citizens to the power of sovereigns unconstrained by the Constitution. This power is real.

“Simply put, Congress cannot constitutionally authorize a political entity within the confines of the United States and under its control to exercise criminal jurisdiction over U.S. citizens without according them the full panoply of basic constitutional rights. First among these are the rights of political participation, i.e., consent, from which all other government power flows. See Duro, 110 S.Ct. at 2064, citing Reid v. Covert, 354 U.S. 1 (1957).”