CERF NOTE: emphasis added    

TRIBAL SUPREME COURT PROJECT- URGENT MEMORANDUM

To: Tribal Leadership Fr: Tex Hall, President, President, National Congress of American Indians John Echohawk, Executive Director, Native American Rights Fund 

 Re: United States v. Lara Raises Significant Issues for Tribal Sovereignty

Dt: August 14, 2003

We need your help to protect tribal sovereignty. The Solicitor General of the United States has asked the Supreme Court to review the case of United States v. Lara, 324 F.3d 635 (8thCir. 2003), and it is likely that the Supreme Court will accept the case. This case will resolve two very important questions. First, can Congress recognize and affirm the inherent criminal jurisdiction of tribes over nonmember Indians when that power has been undermined by a previous Supreme Court decision?

Second, if Congress cannot, is the "Duro Fix" still valid as a delegation of federal authority, or is it void?

The case will have a major impact on the exercise of tribal sovereignty even though no tribal government is a party to the litigation. The Tribal Supreme Court Project is requesting the assistance of all tribal leaders as we develop a coordinated amicus brief strategy to convince the Supreme Court to support Congress’s power to recognize and affirm inherent tribal sovereignty.

Background: In 1990, the Supreme Court held in Duro v. Reina that tribes do not have criminal jurisdiction over members of other tribes. Congress acted that same year to essentially reverse the Duro decision by passing amendments to the Indian Civil Rights Act (known as the “Duro Fix”) that recognized and affirmed tribes’ inherent power to exercise criminal jurisdiction over all Indians.

In U.S. v. Lara, the Eighth Circuit held that Congress lacks the authority to “override a constitutional decision” of the Supreme Court. The decision in Lara is in direct conflict with a similar case in the Ninth Circuit, United States v. Enas, 255 F.3d 662 (9thCir. 2001), which concluded that “Congress had the power to determine that tribal jurisdiction over nonmember Indians was inherent.”

 The split decisions and the importance of the issues make Lara a likely candidate for Supreme Court review. As tribal leaders are aware, Supreme Court decisions regarding tribal jurisdiction have taken a very negative turn in recent years. Oliphant, Montana, Strate, Hicks, and Atkinson Trading Co. are familiar case names that have thrown a great deal of uncertainty into federal law regarding inherent tribal sovereignty. Are we stuck with these cases, or can Congress pass legislation that restores federal recognition of inherent sovereignty? This is perhaps the most important question in Lara.

 Possible Outcomes: The Supreme Court could resolve the issues in Lara in one of three basic ways. First, the Court could uphold the Duro Fix, and find that Congress does have the authority to recognize and affirm tribal powers of inherent sovereignty even after a contrary Supreme Court opinion. This would be the best result for Indian tribes because it would leave the door open for further Congressional action to strengthen tribal inherent jurisdiction. Second, the Court could find that Congress does not have the authority to reaffirm tribal inherent powers, and hold that the Duro Fix must be interpreted as a delegation of federal authority. This result would maintain tribal criminal jurisdiction over non-member Indians, but it would come at a high cost.

 Congress could be precluded from affirming tribal inherent authorities in the future. In addition, a delegation of federal power would likely carry Constitutional restrictions that would interfere with traditional tribal governance. Third, the Court could agree with the alternative argument of the federal government that if Congress lacks the Constitutional power to enact an affirmation of inherent tribal sovereignty, then the Duro Fix must be void because it was never intended as a delegation. This would be the worst result for tribal governments because it would create an immediate jurisdictional gap where no government would have authority to prosecute misdemeanors committed by nonmember Indians on non-P.L. 280 reservations.

How Can Tribes and the Supreme Court Project Work Together to Help Win this Case? The Tribal Supreme Court Project was created in 2001 in order to develop the kind of coordinated effort that is needed on cases such as this one. The Project worked very effectively on three cases last term. We would like to continue this effort on Lara and we see four ways that tribes can begin to help with the effort right now. 1) Work together in a coordinated amicus brief strategy. The tribal position will be much better received by the Supreme Court if we coordinate to limit the number of briefs, make sure that each brief has a unique focus that will advance the argument, and work together to gather factual information that will assist the Supreme Court in understanding the implications of its decision. It will hurt the tribal position if we submit numerous briefs with repetitive or contradictory arguments.

 If you are interested in this case, please encourage your attorneys to coordinate with the Supreme Court Project, contacting either Tracy Labin with NARF or John Dossett with NCAI. 2) Encourage Your Tribal Prosecutors to Help Us to Collect Information. We would like to form a workgroup of tribal prosecutors to develop information and arguments for amicus briefs. For example, we need data on the numbers of non-member Indian crimes prosecuted, examples of typical prosecutions, tribe-specific discussions of the implications of loss of non-member Indian jurisdiction, information on the situations where tribes prosecute in advance of a federal prosecution, etc. We believe that the participation of a group of tribal prosecutors will be very helpful with this case. Please ask your tribal prosecutor to contact Tracy Labin at NARF at 202-785-4144 or labin@narf.org. 3) Discuss Lara With Your State Attorney General. A significant factor influencing the outcome in the recent Inyo County case was the development of an amicus brief by four state Attorneys General in favor of the tribal position (New Mexico, Arizona, Montana and Washington). We would encourage tribal leaders to begin a dialogue with their state AG’s on Lara to see if they would be willing to consider an amicus brief in support of the tribal position. The states would appear to have an interest in ensuring that tribes have criminal jurisdiction over non-member Indians because state law enforcement would not want a jurisdictional gap in Indian country and the resulting lawlessness that could injure the citizens of the state. States also may not have the resources to fulfill this responsibility, and may appreciate that tribal police and courts are better positioned to deal appropriately with non-member Indians who are often married to tribal members or otherwise a part of the tribal community. 4) Fundraising. As with previous Supreme Court Project briefs, we are likely to need funds for the legal fees of attorneys. Tribes have been very generous with their support for previous briefs, with both direct and in-kind contributions, and we are greatly appreciative.