United States v. Billy Jo Lara
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Can
Congress, using their "plenary" powers over Indian affairs,
administer federal law and policies beyond the limitations of the Constitution?
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Can
Congress, through federal Indian policy, rewrite history,
overturn United
States Supreme Court decisions, and unilaterally
alter the "checks and balances"
between the Congress and Supreme Court?
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We at CERF
ask the question, "Who speaks for and protects
the individual rights of American citizens under federal Indian policy?"
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On January 21, 2004 the United States Supreme Court
heard
the case of United States v. Billy Jo Lara. Billy Jo(e) Lara is an
enrolled member of the Turtle Mountain Band of Chippewa Indians. While visiting the
Spirit Lake Reservation, Mr. Lara was arresting for public intoxication. During his arrest, he struck tribal
officers, one of which was a Bureau of Indian Affairs officer, a federal law
enforcement agent.
United
States Supreme Court Docket for United States v. Billy Jo Lara
Case
Review from Citizens Equal Rights Foundation by Darrel Smith
also...
Case
Review from Duke University Law School
Case Review from Northwestern University
Case Review from Ho-Chunk Nation
Mr. Lara plead guilty in tribal
court, paid fines and served time in jail. Following his tribal court
conviction, the United
States charged Mr. Lara with assaulting a federal officer. Mr. Lara appealed
claiming such a prosecution was a violation of his 5th Amendment rights under
the Constitution. The question arises, does this second prosecution of Mr. Lara constitute
a violation of his double jeopardy protection?
See the 5th Amendment to the
US Constitution and review of "double jeopardy"
Mr. Lara moved to dismiss the federal prosecution
on double jeopardy grounds but the district court denied his motion. The case
then went to a panel of the the United States
Court of Appeals - 8th district where the panel affirmed the prosecution, ruling
the two prosecutions were derived from two separate sovereign powers - federal
and inherent
tribal powers, not federally delegated powers.
U.S.
v. Lara (panel) (June 20, 2002)
The 8th Circuit Court of Appeals,
responding to a petition from Mr. Lara, sitting en banc then reversed the
"panel" decision on the grounds the tribal prosecution was delegation
of federal sovereignty, not an inherent tribal power and ordered the
indictment dismissed.
8th
Circuit: U.S. v. Lara (en banc) (March 24, 2003)
One of the perplexing questions arising from
the Lara case is
the conflict with 1990 United States Supreme Court case of Duro v.
Reina where the Court ruled that Indian tribes lacked the inherent power to prosecute
crimes by anyone other than their own tribal members.
See
Duro v. Reina
So how is it possible for the Spring Lake Nation to try Mr.
Lara? While he is an Indian and an enrolled member of a tribe, he's not a member
of the Spring Lake Nation who prosecuted him.
The tribal prosecution was empowered by an amendment to the
Indian
Civil Rights Act of 1968, (ICRA).
Duro concluded by noting that any
practical deficiencies in law enforcement schemes over non-members Indians in
Indian Country resulting from the Duro decision could be addressed by Congress
"...which has the ultimate authority over Indian affairs."
Following the 1990 Duro decision, Congress
amended the ICRA . The legislation
redefined tribal powers of self-government to
include "the inherent power of Indian tribes, hereby recognized and
affirmed, to exercise criminal jurisdiction over all Indians." See
the amended section: 25
U.S.C. § 1301.
This case
centers the legal interpretation of the amendment to ICRA. This amendment, known
as the "Duro Fix", might be viewed as a Congressional affirmation of
inherent tribal power OR as a delegation of power from Congress. The 8th
Circuit Court ruled the "Duro Fix" was indeed a grant of federal
authority and therefore the dual prosecutions were a constitutional violation
of the double jeopardy clause.
At this point, we believe the federal government realized
that if the 8th
Circuit Court decision was to stand, a tribal prosecution could preempt a
federal prosecution on double jeopardy grounds. This is especially important because
tribes are asking for and Congress is considering giving Indian tribes full
territorial powers over non-Indians through an amendment to the Homeland Security Act of
2002.
see tribal efforts to expand
jurisdiction over non-Indians through Congress:
Section on Senate Bill S.578 and H.R. 2242
See News Report Linking Lara Case with S.578 and H.R. 2242
See NCAI memorandum seeking ways to overturn US Supreme Court decisions
See NCAI and NARF public statements avoiding the REAL issues
If the Court decides
the "Duro Fix" is a delegation of federal powers and Congress
"recognizes" full
territorial powers in tribes through legislation, those powers would be applied to everyone
within "Indian Country" and tribal court decisions (for better or
worse) would stand as federal decisions as well.
The federal government, not wanting
tribal convictions to preempt federal prosecutions, filed their brief which
promotes the concept that the Mr. Lara's tribal prosecution was an exercise of "inherent"
power in the tribal government and not a
federal delegation of power. This is called the "separate sovereign"
doctrine.
This then is the federal
governments position articulated in their brief to the Supreme Court.
See
Department of Justice brief on Lara (large
.pdf file format)
Mr. Lara,
having already paid his fines and served his time in jail, must now face the federal appeal of the 8th Circuit Court decision,
in his favor, to the Supreme Court. Mr. Lara's attorney filed a respondent's brief in this case.
See
Mr. Lara's respondent brief
See
Department of Justice reply to Respondent's Brief
If the
Court adopts the position of the Department of Justice, that Congress can
"affirm" or "recognize" "inherent tribal powers", tribes may wield any powers Congress decides to
"affirm." This outcome raises several concerns.
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Recognizing
"inherent" tribal powers could be influenced by political pressure through
tribal lobbyists and big money campaign contributions from gaming tribes.
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This
decision would place much of federal Indian policy under federal common law
which cannot be reviewed by the Supreme Court unless that policy created a
clear constitutional question. Such a result would weaken the time-honored
concept of checks and balances between Government branches on this important
policy.
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Perhaps
the most important concern is the potential for disenfranchising the
hundreds of thousands of non-Indians who live in "Indian Country."
This website contains numerous articles detailing why this change would be potentially catastrophic
to non-Indians.
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Amicus
Curiae briefs have been filed in favor of the Department of Justice position
by the National Congress of American Indians (NCAI) and 18 individual Indian
tribes. It is interesting to note these briefs were prepared in a
cooperative effort between the individual tribes, NCAI and with some
Attorneys General from the Western States. In that regard, all these briefs support the idea that Congress has the right under the Constitution to
define "inherent" or preexisting powers of Indian tribes which are
extra-constitutional.
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We
ask, "How can the government give more than it possesses? |
The
primary position of NCAI and the 18 tribes is relatively simple. They want
full territorial sovereignty over all people and activities within Indian
Country without restrictions to their powers from the US
Constitution or the Bill of Rights.
See
NCAI brief
See
18 tribes brief
(4 mb)
Note:
In an unrelated case where tribes are seeking funds from the federal government,
tribal attorneys argue that federal legislation cannot Constitutionally overturn
federal court rulings, the exact opposite argument proposed in the Lara case.
See Cobell articles
The remaining
players supporting expansion of tribal jurisdiction are several Western States. The briefs submitted by
these States side with the Department of Justice. While the briefs define the
States view on the law, CERF suspects the real motives for filing their briefs is unstated in
these briefs.
States
usually consider tribal governments as competitors for local jurisdiction and
have, in the past, opposed broader tribal powers. In this case, CERF believes the States' position is one of avoidance. If the Supreme Court decides
Mr. Lara's prosecution and conviction is a delegation of federal authority and
the "Duro Fix" passed by Congress is un-constitutional, non-Indian and
non-member Indian crimes may fall under the responsibility of states and local
governments. States are well aware of the jurisdictional nightmare that already
exists in Indian Country and appear sufficiently motivated to avoid this added responsibility
that they are willing to cast off the individual rights of their own
citizens to tribal jurisdictions.
Brief
of 6 states
Brief
of 8 states
While CERF does not support or defend
the behavior of Mr. Lara that instigated this case, CERF does support Mr. Lara's
constructional right to be free of double jeopardy prosecutions. CERF is deeply
concerned in protecting the individual rights of US citizens who live on or
travel through Indian Country. Non-Indians who conduct business with or
patronize tribal businesses are in danger of exposing themselves to a legal system hostile
to their constitutional rights.
While the federal government is
protecting their prosecutorial powers, tribes are seeking greater powers and
states are hoping to avoid law enforcement responsibilities, we at CERF
rise to ask the questions, "Who is standing up and
protecting the individual rights of American citizens from this jurisdictional
quagmire?"
See
CERF brief addressing Constitutional concerns and the rights of US citizens
In addition to the CERF brief seeking
a decision on Constitutional grounds raised by this case, two additional
briefs have been filed supporting, in part, some of the issues raised by the
CERF brief and raising some new questions of their own.
see Morris
brief seeking to find the ICRA amendments ruled as un-constitutional as
a violation the 5th
Amendment (due process) and 14th Amendment (equal protection).
see
Three Counties brief This brief argues Congress does not have the power to affirm inherent powers in tribes but argues for a simple finding of delegated federal authority.
NACDL
brief argues for a simple finding of delegated federal authority
to tribes
Warning:
The following review was written by the Congressional Research Service.
The CRS is, hypothetically, a source of information free of political bias for
Congress. Each report is supposed to provide a comprehensive and balanced review
of federal issues of interest to lawmakers in Congress.
The deadline for submitting briefs to the Supreme Court in Lara was Dec. 15,
2003. The government CRS report on Lara was published Dec. 18, 2003 and yet NO
mention was made of the briefs opposing the federal position in this case . Additionally,
the CRS ERRONEOUSLY misidentifies the Spirit Lake Tribe and the "San Carlos
Tribe".
Despite
these egregious errors, we offer the flawed review that our elected federal officials
will be reading!
CRS
Report to Congress Adobe Acrobat file
Read about the Lara Case in the News:
Indianz.com
review of Lara
July
28, 2002 US Court upholds Duro Amendment
July
29, 2003 Lara case tied issues in pending legislations
August
14, 2003 NCAI memorandum expressing concern that Lara may hinder their
effort to overturn Supreme Court cases
August
25, 2003 DOJ seeks Certiorari to Supreme Court over 8th Circuit en banc
decision
October
1, 2003 Lara accepted for argument before Supreme Court
November
22, 2003 In unrelated case, tribal argument turns 180 degrees
November
26, 2003 NCAI and NARF's PR efforts lack full truth
December
2, 2003 Indian Country Today's Four Part Lara Case articles
December
19, 2003 Defense Attorney discusses Lara Case
January
21, 2004 Lara Case Heard Before the Supreme Court
January
27, 2004 Indian Country Today Writer Suggests Feds Defer to Tribal Courts
February
3, 2004 Indian Country Today - Lara an Opportunity to Review Basics of
Sovereignty?
Lara Case Web Links:
Native
American Rights Fund - Lara Case Page offers recent Lara Supreme Court
Documents