From Indianz.Com.
URL: http://www.indianz.com/News/archives/001733.asp 


Supreme Court to rule on tribal-federal prosecution
Wednesday, October 1, 2003 

The U.S. Supreme Court announced on Tuesday that it will resolve whether tribal governments have inherent sovereignty over all American Indians, not just members of their own tribes. 

In a case with national significance, the justices accepted an appeal filed by the Bush administration. The Department of Justice is arguing that dual tribal and federal prosecution of Indian offenders does not violate the U.S. Constitution's ban on double jeopardy. 

The 8th Circuit Court of Appeals concluded otherwise and said that an Indian man who pleaded guilty in tribal court could not be tried for the same offense in federal court. A divided panel of judges voted 7-4 in March to strike down a federal indictment against Billy Jo Lara on charges that he punched a police officer on the Spirit Lake Reservation in North Dakota. 

But the 9th Circuit arrived at a different conclusion in June 2001. In an 11-0 decision that escaped review by the Supreme Court, a full panel of judges said tribes who prosecute members of other tribes are exercising sovereignty independent of the federal government. 

The government is pushing for resolution of the conflict because the two circuits, along with the 10th, represent the "vast majority" of the American Indian and Alaska Native population. The 8th Circuit covers North Dakota, South Dakota, Minnesota, Nebraska and Iowa while the 9th Circuit affects California, Oregon, Washington, Arizona, Montana, Idaho, Nevada and Alaska. 

The 8th Circuit decision "undermines effective law enforcement in Indian Country," Solicitor General Ted Olson wrote in a July 22 brief. 

Alexander F. Reichert, the attorney representing Lara, disputes the ruling's impact. In an interview, he said it will encourage tribal and federal government to work together on reservations. 

"What I think it's going to do is force more cooperation between U.S. attorneys, tribal prosecutors and tribal courts," he said yesterday. "It will force the federal authorities to take a close look at tribal courts and tribal jurisdiction." 

Tribes across the country are interested in the case because it impacts their push to regain full authority over their lands. The National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) plan to submit an amicus brief siding with the government, an NCAI spokesperson said yesterday 

At issue is an amendment to the Indian Civil Rights Act (ICRA) of 1968. Known as the "Duro fix," it was passed in 1991 in response to the Supreme Court's Duro v. Reina, decision, which held that tribes lack criminal jurisdiction over members of other tribes. 

The 8th Circuit interpreted the Duro fix as an extension of tribal jurisdiction, not a recognition of it. "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 in U.S. v. Lara. 

The 9th Circuit determined that Congress acted appropriately to affirm tribal rights. "When a tribe exercises inherent power, it flexes its own sovereign muscle, and the dual sovereignty exception to double jeopardy permits federal and tribal prosecutions for the same crime," wrote Judge M. Margaret McKeown in U.S. v Enas. 

Although not fully discussed in the government's brief, the 7th Circuit, in U.S. v. Long, has upheld the inherent jurisdiction of the Menominee Nation of Wisconsin even though the tribe's federal status was terminated and later restored by Congress.

ALSO

from Helena Independent Record

Indians fighting double jeopardy

BY SHAWN WHITE WOLF - IR Staff Writer - 10/03/03

The U.S. Supreme Court accepted an appeal by the Bush administration earlier this week to determine whether or not tribal governments have inherent sovereignty over all American Indians, rather than just members of their own tribes. 

The case, in which federal prosecutors argue that dual tribal and federal prosecution of Indian offenders does not violate the U.S. ban on double jeopardy, involves an American Indian who pleaded guilty in a tribal court to punching a police officer on the Spirit Lake Reservation in North Dakota.

The 8th Circuit Court of Appeals first struck down a federal indictment against Billy Jo Lara, but in a previous case the 9th Circuit concluded that tribes lack criminal jurisdiction over Indians enrolled in other tribes.

"By reviewing the case, the U.S. Supreme Court will force federal authorities to take a closer look at tribal courts and tribal jurisdictions," said Alexander F. Reichert, attorney representing Lara.

In addition, the review questions a 1991 amendment to the Indian Civil Rights Act of 1968, which didn't afford tribes criminal jurisdiction over non-tribal members or non-Indians who commit crimes on reservations. 


The 1968 Act passed by Congress forced tribal governments to recognize some of the U.S. constitutional rights of individual Indians that have always been afforded to non-Indians. Prior to the passage of the 1968 Act, individual Indians had no constitutional rights under their tribal governments.

Congress was able to impose the law on tribal governments, despite their sovereignty, because a tribal government's status is known as dependent sovereigns, not independent sovereigns.

The National Congress of American Indians and the Native American Rights Fund said that they plan to submit an amicus brief siding with the U.S. government.

Indians gaining political power

An article in Thursday's USA Today highlighted a national trend of American Indians using their gaming earnings and Get-Out-The-Vote campaigns to influence state and national politics in various locations throughout the nation.

While the article highlights wealthy gaming tribes who are donating multi-millions of dollars to campaigns, it doesn't necessarily reflect the historic state-tribal politics in Montana.

Since the beginning of the self-determination era of the mid-'70s, Montana's Indians have involved themselves in campaigns and state politics. Get-Out-The-Vote campaigns have been the primary way tribal members have gotten non-voting Indians to the voting booths.

Indians have repeatedly won seats in the Montana Legislature for nearly 30 years.

Prior to 1970, only one American Indian, Dolly Akers Cusker,D-Poplar, had held a seat in Montana's Legislature. Cusker was elected in 1933.

Beginning with Sen. Percy DeWolfe, D-Browning, who began his political career in 1957 and remained in the Montana Legislature for 17 years, Montana's Indians have been successful in obtaining numerous seats in the House and Senate of the Montana Legislature.

However, the most recent growth in Indians running for a state seat in the Montana Legislature began in the mid-'80s with then Sen. William P. "Bill" Yellowtail, D-Wyola. Half of the 20 Indians who have held a seat in the Montana Legislature have been elected since 1985.

Alaska is the only other state in the Union that has repeatedly had more Indian Legislators — 12 in 2001 — in recent history.