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

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)