from http://www.legix.com/soc030825.cfm

Social and General Update
August 25, 2003

Cert Requested for Lara Case. The federal government has asked the Supreme Court to review the Eight Circuit’s decision in United States v. Lara, 324 F.3d 635 (8th Cir. 2003). The case arose on the Spirit Lake Nation Reservation when Billy Jo Lara, a non-member Indian, struck a Bureau of Indian Affairs (“BIA”) police officer while in the process of being arrested for public intoxication. Charges against Lara included several violations to the Sprit Lake Tribal Code. Lara pled guilty and was sentenced by the tribal court to jail. A grand jury subsequently issued an indictment charging Lara with assault on a federal officer. Lara moved to dismiss the indictment based on double jeopardy. Although the Fifth Amendment prohibits any person from being prosecuted twice for the same offense, it does not apply if two independent sovereigns are involved and each draws its authority to punish the offender from different sources of power. Therefore, Lara’s claim of double jeopardy turned on whether the tribe exercised authority arising from a source distinct from the federal government’s authority. In analyzing the issue, the Court looked to the source of the tribe’s power to assert jurisdiction over non-member Indians within the boundaries of its reservation. In 1978, the Supreme Court held that a tribe did not have inherent power to prosecute non-member Indian residents of its reservation. Duro v. Reina, 495 U.S. 676 (1990) ( tribe retained inherent power only over tribal members). In response, Congress amended the Indian Civil Rights Act (“ICRA”), commonly known as the “Duro fix,” affirming a tribe’s inherent power to exercise criminal jurisdiction over all Indians. 

Whether Congress can make such amendments in response to Supreme Court decisions about tribal jurisdiction is now in question. The Ninth Circuit has held that Congress can override common law created by the courts. United States v. Enas, 255 F.3d 662 (9th Cir. 2001). Lara, on the other hand, alleges that tribal sovereignty involves issues of a “constitutional magnitude,” not common law, and must be decided by the Supreme Court, not Congress. The court ultimately did not rule the amendments void, but concluded that, as far as double jeopardy is concerned, the tribe exercises only delegated, not inherent, authority over non-members. Because Lara was prosecuted by the tribe under Congressionally-delegated power, the ultimate source of power was the same as the federal government, and therefore the Court granted the motion to dismiss the indictment. The National Congress of American Indians (“NCAI”) reports that the split in the federal Circuits makes it likely that the Supreme Court will accept review of the Lara case and asks for the support of tribal governments through joining in an amicus brief, collecting information through tribal prosecutors, and discussing the matter with state attorneys general. While no one knows how the Supreme Court may decide the matter, getting the correct law in front of the Justices is important. For more information about NCAI’s collective effort to respond, contact John Dossett, NCAI, at (503) 248-0783.