GRAND FORKS, N.D. - The question now before the U.S. Supreme Court is whether tribal courts can prosecute Indian defendants who are not members of its tribe (U.S. v. Lara, 324 F.3d 635 8th Cir. 2003)
Solo practitioner Alexander F. Reichert in Grand Forks, N.D., defense counsel in the Lara case, maintains that while American Indians have inherent authority to prosecute their own members, they do not have authority to prosecute non-member Indians. The argument challenges a 1991 congressional amendment to the Indian Civil Rights Act that restored tribal criminal jurisdiction over non-member American Indian defendants in misdemeanor cases.
"I get the impression most tribal governments are not real happy with the position I take," said Reichert. "They see it as another limit on tribal sovereignty but it's a lot more far reaching than that."
On Jan. 21, oral arguments will begin in North Dakota on the case which began June 13, 2001 when Billy Jo Lara, a member of the Turtle Mountain Band of Chippewa Indians, allegedly assaulted a tribal officer on Spirit Lake Nation territory while being booked into jail.
Two days later Lara plead guilty to the misdemeanor charge of assault in the Spirit Lake Nation tribal court and was sentenced to 155 days in tribal jail. Three months later he was charged with the same assault by a federal prosecutor.
This sounded like double jeopardy to Reichert and he filed for dismissal but lost. On appeal to the 8th Circuit, a three judge panel ruled 2-1 for the prosecution. But the ruling was reversed by a 7-4 en banc decision when the court reasoned that a tribe cannot be considered a separate sovereign and Lara's motion to dismiss should be granted because to try him again for the same crime is double jeopardy, a violation of the Constitution.
According to the doctrine of dual sovereignty, a crime is punishable by two separate sovereigns, such as state and federal, because it's seen as a separate crime committed against each sovereign.
"Because of the Indian Civil Rights Act, people in tribal courts don't have the same rights as people in U.S. courts," Reichert said. "For example they are not guaranteed a lawyer or appointed one if they can't afford one."
Tribal members consent to the benefits and laws of that tribe. Reichert said the problem is prosecuting non-tribal persons who do not get to vote in elections, do not have benefits of the tribe and who have not consented to the laws.
In 1990 the Supreme Court held that American Indian tribes are independent from the United States to prosecute members of their own tribe (Duro v. Reina, 495 U.S. 676 1990) but took away the sovereign power to prosecute nonmember Indians on tribal lands. The 1991 amendment to ICRA restored that right.
In the Lara case, the 8th Circuit Court of Appeals refused to extend sovereignty to nonmember prosecutions. But the 9th Circuit, which includes states west and south of Montana, held that a tribal court exercises its own sovereign power when prosecuting a member of another tribe (U.S. v. Enas, 225 F.3d 662 2001).
Because the 8th and 9th Circuits cover the majority of Indian population, the split on the Indian law issue is why the U.S. Supreme Court stepped in to hear it, Reichert said. There cannot be a split of decision unresolved between Circuits.
A reversal of the lower-court ruling would give tribal courts sovereign status to try both member and non-member American Indian defendants. Lara would serve concurrent sentences imposed by the tribal and federal courts. It would also establish that Congress can restore inherent sovereign powers.
"The problem with that is someone could commit a murder and he cannot run into tribal court and plead guilty without a judge hearing it and a prosecutor charging it," said Reichert.
If the high court affirms only a tribal or federal court but not both can try the crime, it could set precedent for replacing a tribe's sovereign powers with delegated federal power. The federal government would be precluded from trying Lara for assault. It would show that the Supreme Court defines the extent of tribal sovereignty.
"So now we'd have this problem, Indians on a reservation who cannot be prosecuted by the tribe," said Reichert. "Congress can prosecute me wherever I am. They can give that power to the tribes. The states won't do it and the federal courts only prosecute felonies. So we have this jurisdictional gap. How do we fix this?"
Reichert said that for tribes to have effective sovereignty, first the U.S Attorney's Office and tribal courts have to communicate better or else tribes need to be given Constitutional protections and "we won't have this problem any more. Not only could they prosecute for misdemeanors but for felonies too." Tribal courts are limited by the federal Indian Civil Rights Act to impose a maximum of one year in prison for each offense.
"It will cost a lot to provide court-appointed lawyers for reservations," he said. "The government doesn't want to spend that money."
One concern is that the U.S Attorneys Office would be bogged with misdemeanors and felony cases because of double jeopardy. Reichert said the fact is that tribal courts handle thousands of cases each year with one or two prosecutors. Federal courts handle hundreds and they have dozens of prosecutors.
"Don't tell me they're more overworked than a tribal court," he said.
One step further, Reichert said Congress needs to allot funding so the tribal courts have the resources they need, such as investigators.
"What kind of dark ages are we living in that we say it's fine for Indians to have no Constitutional rights," asked Reichert. "Case law and history say that Indians are wards of the United States, yet equals. If that's not bad enough, drive onto a reservation. I am embarrassed that people in America would have to live like that. If they're our wards, it's our fault. We have to fix it."
The four briefs opposing Reichert's position were filed by 18 tribes, 14 states and the National Congress of American Indians. The states that filed a brief in support of Reichert's position are Alabama, Louisiana, Idaho, Nebraska, Utah and South Dakota.
"Congress is going to have to do something," he said. "It would be anarchy to do nothing."