A Four Part Series on the Lara Case from Indian Country Today

Duro rides again
Supreme Court review will test extent of tribal sovereignty, Part One

Posted: December 02, 2003 - 12:49pm EST
by: Jerry Reynolds / Washington D.C. correspondent / Indian Country Today

WASHINGTON - Call it the case that won’t die - Duro has come around again.

Duro v. Reina, that is. The 1990 Supreme Court decision put Indian country on the alert that tribal sovereignty was under siege. In ruling that tribes had implicitly lost the sovereign power to prosecute non-member Indians on tribal lands, the Duro court did more than create a loophole in the law allowing criminal Indians to elude the reach of tribal, state and federal law on reservations where they were not tribal members. It also challenged the very core of tribal authority - inherent sovereignty.

Congress and the tribes alike thought they had closed that loophole in the so-called Duro amendment, a 1990 act of Congress that restored tribes’ inherent sovereign jurisdiction over non-member offenders.

But now the challenge thrown down by Duro has been revived. The Supreme Court in September agreed to review a prosecution pursued by both a tribe and the U.S. Department of Justice under the Duro amendment. The crux of the United States v. Lara case is whether the amendment reaffirmed an inherent sovereignty that existed before the U.S. Constitution, as Congress intended, or in fact delegated a new federal power.

On this fine point of law hangs the whole question of whether tribes can regain an inherent sovereign power once it has been lost, as prosecutorial power over non-members was lost under the original Duro court decision. Though tribes regained a power of non-member prosecution with the Duro amendment, the question under review by the Supreme Court is whether they regained it as an inherent sovereign right or as a federal delegation of authority to "dependent governments under the overriding sovereignty of the United States," as an analysis by the law firm of Hobbs Straus Dean & Walker in Washington states it.

The firm, long active in Indian advocacy litigation, foresees three immediate outcomes if the high court were to uphold lower court decisions in Lara that found the Duro amendment a delegation of federal power to dependents:

Tribes would be able to impose jurisdiction on non-member Indians only under delegated federal power - that is, only if the federal government decided not to prosecute the non-member first.

Inherent tribal sovereignty, the basis of tribal self-governance under the Constitution, once lost through dependency would be renewable as a congressional delegation of federal power - representing a permanent loss of inherent sovereign power.

By the Lara precedent if it stands, Supreme Court rulings, rather than acts of Congress, would define the extent to which tribes may have experienced an erosion of their inherent sovereign powers.

Part II of this series will explore the concept of tribal sovereignty, inherent and otherwise, under the Constitution. 
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Inherent sovereignty under siege in Lara appeal
Part Two

Posted: December 05, 2003 - 11:39am EST
by: Jerry Reynolds / Washington D.C. correspondent / Indian Country Today

WASHINGTON - The inherent sovereignty of tribes can be seen as the power of "we the people," the same power that founded America.

But in the case of tribes, it came about much earlier because "we the Indian people," if you will, had been governing themselves in tribes for centuries. And so their inherent sovereignty is said to "predate the Constitution," as recognized in U.S. Courts and international law.

Centuries of antagonism from the British colonies and later American states is held to have extinguished inherent tribal sovereignty over former tribal territories now governed by the United States, or for that matter, states of the United States. This is the general basis for legal arguments that seek to find an extinction of sovereignty. But in negotiating treaties and pressing their legal rights in the U.S. courts, tribes have asserted a pre-existing inherent sovereignty over their own remaining territories, subject to oversight of Congress as the U.S. treaty-making power. This is the general basis for the legal standing of tribes as limited dependent sovereigns.

This is all pretty clear, and readily comprehensible despite the many Indians who speak of tribal sovereignty as if the "limited, dependent" part of the formula doesn’t apply, and the many more non-Indians who speak of tribes as if the "sovereign" part of it doesn’t apply.

But beyond these clear lines of thought, as egos and resources and competing priorities come into play, the limited and dependent, but stubbornly real sovereignty of tribes is subject to periodic legal sieges that would further reduce its arena of relevance. One such anti-sovereignty approach is to translate inherent powers, which require only the consent of the governed for its expression, into delegated powers, which rely on the will of the delegating authority.

Time after time, U.S. history demonstrates that political will is a major problem for tribes - which however justly courts may reason, congressional willpower may lag behind. The Marshall decisions of the early 19th century may have established the basis of tribal rights, for instance, but President Andrew Jackson famously suggested the chief justice ought to also enforce his rulings and instead proceeded with Cherokee removal. More recently, a judge opined that the Black Hills takings were as rank and dishonorable a piece of wrong dealing as the government has ever engaged in, but concluded that nothing could be done about it (beyond offering a cash payment) at this later stage of history. And only a month ago, Congress overruled the clear reasoning and just decision of the courts by stalling a court-ordered historical accounting of the trust funds - not because one isn’t past due or because Indian trust beneficiaries haven’t been harmed, but because the wealthiest nation in the history of the world can’t afford to pay for it.

A modern philosopher has noted that the "obstacles to comprehension" have less to do with understanding than with lack of willpower. In each of these cases and many others, it becomes clear the U.S. Congress could do what courts and the Constitution require of it if it had the will. As one commentator said of congressional intervention in the trust funds case, "If they had the will to do an historical accounting, they would find the money."

Against this background, the Supreme Court’s decision to hear an appeal in United States v. Lara could indeed prove to be a significant test of tribes’ inherent sovereign powers, as the Washington law firm of Hobbs Straus Dean & Walker LLP, long active in Indian-specific litigation and co-drafter of a "friend of the court" brief in the case, has already suggested.

Brief details of the Byzantine legal proceedings in the case were recounted in the first installment of this series; suffice to say here that by letting a lower-court ruling stand in Lara, the court would establish the principle that inherent sovereign powers, once lost, cannot be restored by Congress. If the high court overturns the lower court, on the other hand, the precedent will be set for replacing a tribe’s lost inherent sovereign power with delegated federal power - the kind that is subject to the political will of Congress before the reasoning of courts.

Clear facts on the ground: Lara breeds fine points for sovereignty
Part Three

Posted: December 22, 2003 - 11:03am EST
by: Jerry Reynolds / Washington D.C. correspondent / Indian Country Today

WASHINGTON - When U.S. v. Lara is argued before the U.S. Supreme Court Jan. 21, tribes will be interested in their inherent sovereignty to punish misdemeanor crime in their territories, states will be interested in the federal apportionment of local power under the Constitution, the United States will be interested in prosecuting a federal offense; and all of them together will be interested in law and order on reservations.

And lest we forget, defendant Billy Jo Lara will be interested in avoiding a federal assault charge for knocking a BIA police officer out cold in the course of an arrest.

But to judge from the weight of commentary given in the several amicus curiae or "friend of the court" briefs filed in the case, the Supreme Court justices, not surprisingly for that matter, may be more interested in much finer points of law. Indeed, the case has been made on background that come what may of the Lara appeal, the primary problem it presents to tribes is psychological - at a time when challenges to tribal authority are coming thick and fast, Lara (depending of course on its ultimate disposition) may appear to be one more whittling away of tribal sovereignty.

By this reading, tribes and tribal leaders who already feel their sovereignty besieged may react to the facts in Lara as if they portend a loss of actual sovereignty, when in fact the worst loss they are likely to bring about is more perceived than actual - a setting aside of theoretical authority that isn’t of major importance in practice. The view here is that at the end of the day, tribes won’t miss prosecuting the minor crimes of non-members in those instances where they can instead make way for the federal prosecution of major crime.

This current consideration of Lara, third of a four-part series, will return to the finer points of law before the Supreme Court. But first, before the complexities of the case become too daunting, a review of the facts on the ground is in order.

They begin in 1990, when the Supreme Court ruled in Duro v. Reina that as a constituent feature of their dependent status, tribes had lost that attribute of inherent sovereignty enabling them to prosecute Indians who are not members of their tribes for minor crimes committed on reservations (major crimes on reservations are prosecuted, then and now, by the federal government). The court recognized that its holding would create a jurisdictional gap where so-called minor crime, including domestic abuse, public intoxication and breaking the peace for instance, could flourish. For if the sovereign tribe could not prosecute non-members, so were federal and state officers prevented from doing so by the tribe’s sovereign authority within its borders.

But crucially, the court also recognized in plain language that Congress might provide a remedy if one proved necessary.

In no time, so it proved. Many tribes had to release non-member miscreants during the few months when the jurisdictional void obtained, and by the end of the year Congress had amended the Indian Civil Rights Act (25 United States Code, Section 1301(2) to be exact). One of the main reasons for the Duro decision had been that Congress had not explicitly recognized tribal sovereignty over non-member Indians. Now Congress recognized and affirmed, again in plain language, the inherent sovereign authority of tribes to prosecute non-member Indians for minor crimes committed on the host reservations.

For more than 10 years, the Duro amendment or "Duro fix" as it is also known, worked well in protecting tribal communities from nonmember minor crime.

Enter Billy Jo Lara. A Turtle Mountain Chippewa tribal member, Lara married a Spirit Lake tribal member and moved to that North Dakota reservation. The tribe made many advantages and benefits available to him. "Unfortunately," one of the amicus briefs maintains, "Mr. Lara was not a model citizen of the Spirit Lake Tribal community."

The tribe asked for federal assistance in prosecuting Lara for repeated offenses, but the North Dakota system couldn’t help (one of the reasons for Congress’s quick action in amending the ICRA is that the Duro decision had exposed the limits of such prosecutorial assistance for tribes in light of overloaded federal court dockets). Eventually the tribe expelled him from its territories, arguably its severest penalty.

But on June 13, 2001, Lara was back on the reservation. Two officers, one with the tribal police force and one with the BIA, set out to apprehend him for violating the expulsion order. A scuffle took place at the point of arrest as Lara, intoxicated and belligerent, struck the tribal officer. Back at the station, apprised that he was in violation of the expulsion order, Lara kayoed the BIA officer, according to police reports cited in the court briefs.

He pleaded guilty in tribal court to infractions of the tribal code stemming from all this. The penalties levied against him included a 90-day jail sentence for striking the tribal officer. Then the federal prosecutors in North Dakota brought charges of assault on a federal officer.

Now, Lara had already pleaded guilty in the tribal case, and all the elements in the federal case against him were the same. Under any ordinary scenario, that would put him in "double jeopardy," a violation of the Fifth Amendment to the U.S. Constitution, which protects citizens from being tried twice over for the same alleged offenses.

But what seemed to remove the Lara case from the realm of double jeopardy was the presence of separate sovereigns. One sovereign, the tribe, was bringing one set of charges, and another sovereign, the federal government, was bringing the graver charge, both on the same case elements. In the same way, different states, acting as separate sovereigns, will often bring charges for the same crimes committed within their separate jurisdictions.

This interpretation depends on the validity of Congressional intent to restore inherent tribal sovereignty that had been set aside by the Supreme Court in Duro. Lara argued, however, that Congress delegated the federal sovereign power to the tribe for prosecution of nonmembers. If the Supreme Court finds that Congress did delegate its own federal powers, rather than restoring tribal powers that exist (or not) separate from the federal government, the sovereigns in the case will not be considered separate and Lara may conceivably "skate," as the slang saying goes, on the federal assault charge, having already been tried on the lesser tribal charges.

The amicus briefs in the case all agree, and the congressional record makes it clear, that Congress intended to restore inherent tribal sovereignty over the minor crimes of all Indians on reservations. And the Supreme Court’s own words in Duro indicate that Congress should fashion a remedy if Duro opened a dangerous jurisdictional gap, as it did in the view of Congress, many tribes, and multiple state and federal law enforcement agencies.

But while one can’t predict any court’s deliberations, the amicus briefs imply that much will hinge on one subtlety of law - whether Congress created federal common law in amending the Indian Civil Rights Act to restore inherent tribal sovereignty over nonmembers, or overreached its authority by reinterpreting law to the contrary as finalized by the Supreme Court in Duro.

The latter is forbidden under the Constitution’s separation of powers doctrine - it is for the courts, not the legislative branch, finally to say what the law is.

This and several other fine points of the Lara case will be considered in the fourth and final installment of this series. Meanwhile, the amicus briefs in the case, and much further information, can be found on the Native American Rights Fund Web site: http://doc.narf.org/sc/lara/index.html.

(Continued in Part Four) 
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U.S. v. Lara: two questions
Part Four

Posted: December 30, 2003 - 4:15pm EST
by: Jerry Reynolds / Washington D.C. correspondent / Indian Country Today

WASHINGTON - The questions that will come before the Supreme Court Jan. 21 in U.S. v. Lara boil down to an essential two, two that were settled differently in separate circuit courts.

As the U.S Department of Justice frames them, arguing in behalf of tribal authority over nonmember Indian miscreants … Does a tribe act on its sovereign authority in prosecuting a member of another tribe for minor crimes committed on its territories, as held by the 9th Circuit Court of Appeals in 2001? Or does it act as an instrumentality of the United States, as the 8th Circuit determined in 2003?

In resolving this difference of opinion, the high court may address perhaps the highest-profile issue in Indian country - inherent sovereignty. Within the framework of Constitutional law, tribes possess this attribute independent of the U.S. federal system, by virtue of self-governance over centuries long before "We the People" of the United States sought to establish a "more perfect union" in founding documents. But to what degree has inherent tribal sovereignty been compromised by dependence and the "plenary power" of Congress to work its own sovereign will, and to what degree do tribes still exercise authority within their dominions?

The Supreme Court may go so far as to address these issues.

Then again, it may not. Especially not if it takes any bearings from the amicus curiae or "friend of the court" brief filed by six states that argue against tribal authority over nonmembers as it comes before the court in Lara - that is, as a restoration of retained inherent authority.

These states oppose the congressional restoration of inherent power to tribes following the 1990 Duro decision, arguing that it would "operate wholly outside the parameters of the Constitution" and "lay the doctrinal foundation for incalculable damage in the future to the very fabric of the Constitution." In fact these states - Idaho, Alabama, Louisiana, Nebraska, South Dakota, Utah - use the phrase "retained inherent authority" insistently throughout their brief instead of the "inherent power" Congress preferred in laying down the law at issue (the so-called "Duro fix" that restored tribal power to prosecute nonmember Indians for minor crimes on reservations).

Yet in some indication of the case’s myriad complex layers (touched on in the previous three parts of this series), the same states urge a solution on the court that would neither undermine the separate sovereignty of tribes in their tribal courts, nor address their overall inherent authority. The defendant Billy Jo Lara’s claim of "double jeopardy" (prosecution twice by the same sovereign power, federal sovereign power in this instance, on the same case elements) should fail, because his "tribal court conviction was the act of a separate sovereign and did not bar his subsequent federal court conviction." Tribal authority is therefore moot and the high court should not address it in Lara.

Under this proposed disposition of the case, these states accept tribes as separate sovereigns and would not challenge their authority over nonmember Indians, not at least on the facts in Lara.

Their primary distress in the case is with Congress and the position taken in Lara by the U.S. Department of Justice. Their sticking point is restoration of authority the Duro court found extinguished. Restoration of retained inherent authority, as legislated by Congress and now litigated by the DOJ, could lead to recognition of inherent tribal authority over states, the brief maintains. "Congress cannot create the authority" it tried to restore - it erred in assuming it could. And to resist congressional dispensations of authority on dodgy legal grounds is a longstanding tradition of states.

Certain "canons of construction" in U.S. jurisprudence discourage courts from raising difficult constitutional issues where that can be avoided, this particular argument goes on. The canon at issue here, according to these states, dictates that terms taken by Congress from common law to become part of new legislation retain their common law meanings. The common law meaning of tribal "inherent power," as Congress describes what it sought to restore in the Duro fix, is "retained inherent tribal authority" - which the Supreme Court’s original Duro opinion found missing for tribal prosecution of nonmember Indian minor crimes, as an extension of tribes’ dependent status.

"The United States, however, essentially contends that Congress can assume pursuant to its Indian Commerce Clause the duties traditionally discharged by the courts and thus discharge both roles even to the point of legislatively vetoing a decision by this court."

If the high court follows this line of reasoning, one would expect it to do so in light of its own instruction accompanying the 1990 Duro decision. Recognizing at that time that its cancellation of tribal prosecutorial power over nonmember Indians could create a jurisdictional gap, the court also recognized in plain language that Congress might provide a remedy if one proved necessary.

In a separate amicus brief, eight other states support Congress in its "Duro fix" and tribes in their authority over nonmember Indians. Washington, Arizona, California, Colorado, Michigan, Montana, New Mexico, Oregon - all note that tribes have a history of authority over nonmember Indians. Many reservations are home to confederated tribes of several tribal lineages, federal obligations are due to nonmember Indian residents of reservations, and U.S. history is replete with instances of tribal diversity within singly self-governed communities.

For these states too, common law comes up. Congress cannot overrule a final constitutional holding of the Supreme Court, for it is the judiciary role to say what law is under the Constitution’s separation of powers clause. If that were that, Congress would indeed have overstepped in supplying the Duro fix.

But these states maintain that Congress changed common law, not a constitutional holding. This was in keeping with its unquestioned authority to "amend statutes and treaties like those that formed the backdrop for this Court’s holding in Duro that help to define the powers of Indian tribes." In so helping to define the powers of tribes, Congress restored the sovereign power to prosecute nonmembers.

In addition, these states argue that tribes’ authority to prosecute nonmember crime has not been nullified by dependency, but rather has been modified by amendment in the same way the Duro fix now amends the Indian Civil Rights Act. "In enacting the 1990 and 1991 amendments … Congress validly restored Tribes’ sovereign power to prosecute non-member Indians. The enactment has the effect of amending treaties, other laws, and federal common law that expressly or impliedly withdrew tribes’ power to prosecute non-member Indians."