from: Native American Press 
http://www.press-on.net/index.html

U.S. Court of Appeals upholds 'Duro Amendment' 

By Jeff Armstrong - June 28, 2002

A divided three-judge panel of the 8th U.S. Circuit Court of Appeals this week rejected constitutional challenges to the extension by Congress of criminal jurisdiction over non-member Natives to tribal courts. Appellant Billy Jo Lara contended that his federal prosecution for assaulting a BIA officer constituted double jeopardy, since he had previously pleaded guilty to tribal charges deriving from the same incident in the Spirit Lake reservation court. 

A similar argument previously made before the 8th Circuit, which includes Minnesota and six other states, left a panel of ten judges evenly divided on the case and the issue unresolved. 

In 1990, the U.S. Supreme Court ruled in Duro v. Reina that tribal courts could not exercise criminal jurisdiction over Indians enrolled in different tribes. The court had earlier held in Oliphant v. Suquamish that tribes had lost their inherent right to prosecute non-Natives within their territory and could only regain such jurisdiction through congressional authorization. The justices reasoned in Duro that because the defendant could not serve on a tribal jury, vote in reservation elections or run for tribal office, he had the same legal status as a non-Native, a class held by the court to be generally immune from tribal prosecutorial authority. 

"While Congress has special powers to legislate with respect to Indians," the Duro court ruled, "Indians like all citizens are entitled to protection from unwarranted intrusions on their personal liberty. This Court's cases suggest constitutional limits even on the ability of Congress to subject citizens to criminal proceedings before a tribunal, such as a tribal court, that does not provide constitutional protections as a matter of right." 

Shortly after the Duro decision, Congress amended the Indian Civil Rights Act to counteract the ruling based on claims that it left a jurisdictional void on reservations. The U.S. legislation was worded in terms of "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." 

In the recent case, Lara argued that if a tribe possessed no inherent criminal jurisdiction over non-members, it naturally followed that the exercise of such authority by virtue of a congressional act constituted an exertion of delegated federal power. The United States Constitution explicitly prohibits prosecution more than once for the same offense, but the courts have interpreted it to allow separate prosecutions by distinct jurisdictions. If the tribe was acting under U.S. authority rather than its retained inherent sovereignty, Lara argued, the federal government was barred from prosecuting him under the same authority twice. 

Both the U.S. District Court in North Dakota and the federal appeals panel ruled that the Duro ruling was based on federal common law, rather than the U.S. Constitution. 

"Like the district court, we conclude that Duro grounds its holding in federal common law, not Constitutional law, because Duro discusses tribal sovereignty without reference to the Constitution," the majority opinion stated. "The plain language of the amended ICRA together with the amendment's legislative history convinces us that Congress intended to recognize inherent tribal power, not to expressly delegate Congressional authority." 

In a lengthy dissent, circuit judge Hanson sharply disputed the court's conclusion. 

"It is beyond Congress's power to declare that the inherent sovereignty of a tribe has always provided it with criminal authority over nonmember Indians where the Supreme Court has found the facts to be otherwise," wrote Hanson. "This conclusion is firmly grounded in constitutional principles which guarantee equal protection to all citizens regardless of race and also protect personal liberties; it is inextricably linked to the very basis on which our constitutional system was established--that the authority to govern is derived from the consent of the governed."