TRIBAL JURISDICTION OVER NON-MEMBERS:

On September 30, 2003, the United States Supreme Court accepted the appeal of an Eight Circuit Court of Appeals decision that will have far-reaching implications for the jurisdiction that tribes exercise over nonmembers. U.S. v. Lara, 324 F.3d 635 (8th Cir. 2003) (en banc). The case involves the dual tribal and federal prosecutions of a non-member Indian. However, the Court’s decision will not just impact tribal prosecutions.

The ramifications of the decision will be felt by all tribes as the Court may resolve the issue as to whether tribal governments have inherent sovereignty over all Native Americans, not just members of the particular tribe.

At play in Lara, is the concept of dual sovereignty. Dual prosecutions of separate sovereigns do not violate the Double Jeopardy Clause of the Fifth Amendment. Therefore, the primary question in Lara is not whether tribes have criminal jurisdiction over nonmembers, but whether this jurisdiction currently exercised is an inherent or delegated power. If the power is considered delegated, then dual tribal/federal prosecutions would violate the Constitution’s prohibition on Double Jeopardy.

Billy Jo Lara, a member of the Turtle Mountain Band of Chippewa Indians, was first convicted of assaulting a police officer by the Spirit Lake Nation tribal court. Three months later, the federal government indicted Lara for assault of a federal officer.

The charges stemmed from the same incident.

The defendant moved to dismiss the indictment on double jeopardy grounds. The district court denied the motion, and Lara entered a conditional guilty plea, reserving his right to appeal the denial of his motion. A panel of the Eighth Circuit Court of Appeals upheld the district court’s decision, explaining that the Spirit Lake Nation’s power to prosecute derives from its inherent power to prosecute and not from Congressional delegation.

Therefore, the conviction on the federal charge did not violate the Double Jeopardy Clause of the Fifth Amendment. The Eighth Circuit Court of Appeals, sitting en banc, reversed the order denying the motion to dismiss on double jeopardy grounds. The Eight Circuit held that "the distinction between a tribe’s inherent and delegated powers is of a constitutional magnitude and therefore is a matter ultimately entrusted to the Supreme Court." Lara, at 639. The Eight Circuit explained that Congress, in giving the tribes inherent power to exercise criminal jurisdiction over non-member Indians through an amendment to the Indian Civil Rights Act, was attempting to override a Supreme Court decision by re-writing history.

In 1990, the United States Supreme Court ruled that tribes do not have the power to criminally prosecute non-member Indians. Duro v. Reina, 495 U.S. 676 (1990). In 1990, Congress enacted the "Duro fix" as an amendment to the Indian Civil Rights Act. 25 U.S.C. § 1301(2). The amendment recognized that tribes have the "inherent power" to exercise criminal jurisdiction over all Indians.

In Lara, the Eighth Circuit did not go so far as to declare the "Duro fix" void. However, the court held that the while Congress could grant criminal jurisdiction over non-member Indians to the tribe, it could not go so far as to re-write history and declare these delegated powers to be inherent. The court was careful to note, however, that "[n]othing in our decision today in any way circumscribes the jurisdiction so conferred." Lara at 640.

The Eight Circuit’s decision in Lara was ripe for appeal as other circuits have previously ruled differently. The Ninth Circuit Court of Appeals held last year that a tribe exercises its inherent power when prosecuting non-member Indians. U.S. v. Enas, 255 F. 3d 662 (2001) (en banc), cert. denied, 534 U.S. 1115 (2002).

Therefore, the court held that the Double Jeopardy Clause was not violated by dual tribal/federal prosecutions.

The Supreme Court will likely have to answer the question of whether tribes retain inherent or delegated jurisdiction over non-members. The Supreme Court has issued a number of opinions which seemingly limit the exercise of inherent sovereign power to the tribe’s own members. See Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001); Nevada v. Hicks, 533 U.S. 353 (2001).

Through a review of Lara, the Supreme Court may be forced to explicitly define the inherent power that tribes retain with respect to all non-members in both the criminal and civil contexts.

Perhaps the more important issue that the Court will address is whether Congress has the power to declare that a power is either delegated or inherent. The question arises as to whether Congress was attempting to re-write history through overriding Duro. In the alternative, the Supreme Court may find as did the Ninth Circuit, that Congress has the authority to identify the "parameters of tribal sovereignty." Enas, 255 F. 3d at 670 (2001).

Tribes have recently supported the idea of Congressional initiatives to correct the current trend of the Supreme Court to limit sovereignty over nonmembers. If the Court finds the "Duro fix" to be an unconstitutional exercise of Congress’ power, this would prevent any similar corrective measures to address case law in which the Supreme Court has limited tribal sovereignty over nonmembers. See Nevada v. Hicks, 533 U.S. 353 (2001) (holding that tribal inherent sovereign powers do not extend to activities of nonmembers); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (holding tribes have no inherent power to prosecute non-Indians).

Such a consequence would detrimentally impact tribes in both Public Law 280 and non-Public Law 280 states, including the Ho-Chunk Nation.

HO-CHUNK NATION COURT BULLETIN NOVEMBER 2003

VOL. 9, NO. 11 PAGE 2 OF18