CERF/CERA’s
Supreme Court Amicus Brief in U.S. v. Lara:
Background,
Introduction and Implications
By Darrel Smith
United States Supreme Court Oral Arguments are Scheduled for Wednesday,
January 21, 2004
The author is a reservation resident. He is the Editor of CERA NEWS and Treasurer of Citizens Equal Rights Foundation (CERF).
In 1990, the Supreme Court ruled in the Duro v. Reina (495 U.S. 676) case that tribal governments do not have criminal jurisdiction over Indians who are not members of their particular tribe. Congress responded to this decision by amending the 1968 Indian Civil Rights Act (ICRA). In this “Duro Fix” amendment, Congress “recognized and affirmed” the “inherent power” of tribes to “exercise criminal jurisdiction over all Indians.”
On June 13, 2001, police officers of the Bureau of Indian Affairs (BIA) arrested Chippewa Band member Billy Jo Lara for violence against a police officer, resisting arrest, and public intoxication on the Spirit Lake Nation Reservation. Lara, who was a nonmember Indian, was convicted in Spirit Lake Nation Tribal Court and served his sentence. Later, he was charged by the federal government for the same offense and defended himself in federal court using the defense of double jeopardy.
In a similar case on June 29, 2001, the Ninth Circuit decided that Congress could overrule the Supreme Court’s Duro decision and reestablish a separate, inherent tribal authority over nonmember Indians thus ruling that double jeopardy did not apply. Just recently, in this case, on March 2003, the Eighth Circuit disagreed with the Ninth Circuit and ruled that double jeopardy did apply. The Eighth Circuit said significant constitutional questions needed to be resolved by the Supreme Courts. The Department of Justice (DOJ) successfully appealed the Eighth Circuit’s decision to the Supreme Court.
The immediate issue of double jeopardy in these cases raises more indirect questions about the Duro decision and the congressional action to overturn it. The DOJ brief argues that the Supreme Court’s Duro decision was based on judge made, common law instead of constitutional principles and therefore can be overturned by the congressional action amending ICRA. The DOJ also maintains that Congress has the authority to reestablish the “inherent power” of tribes to “exercise criminal jurisdiction over all Indians.”
CERF/CERA disagrees with the DOJ’s positions. In the following brief, we argue that the Supreme Court’s Duro decision was based on constitutional principles and can’t be overturned by the congressional action amending the ICRA. CERF maintains that the status of tribal governments, the limits of congressional action, and the rights of citizens should all be based on the Constitution.
If the Supreme Court accepts the DOJ’s arguments, neither congressional Indian policy nor tribal governments will be limited by the Constitution and the problems of federal Indian policy will be practically unsolvable. Federal Indian policy could then become almost as difficult to limit and reform as slavery was after the infamous Dred Scott decision of 1856.
Excerpts from two other briefs are also included in this issue. The Morris’ brief maintains that the ICRA amendments are racist. Another brief from three counties raises the possibility that non-Indians might also be brought under tribal jurisdiction if the Court accepts the DOJ’s position.