WASHINGTON - Call it the case that won't die - Duro has come around again.
Duro v. Reina, that is. The 1990 Supreme Court decision put Indian country on the alert that tribal sovereignty was under siege. In ruling that tribes had implicitly lost the sovereign power to prosecute non-member Indians on tribal lands, the Duro court did more than create a loophole in the law allowing criminal Indians to elude the reach of tribal, state and federal law on reservations where they were not tribal members. It also challenged the very core of tribal authority - inherent sovereignty.
Congress and the tribes alike thought they had closed that loophole in the so-called Duro amendment, a 1990 act of Congress that restored tribes' inherent sovereign jurisdiction over non-member offenders.
But now the challenge thrown down by Duro has been revived. The Supreme Court in September agreed to review a prosecution pursued by both a tribe and the U.S. Department of Justice under the Duro amendment. The crux of the United States v. Lara case is whether the amendment reaffirmed an inherent sovereignty that existed before the U.S. Constitution, as Congress intended, or in fact delegated a new federal power.
On this fine point of law hangs the whole question of whether tribes can regain an inherent sovereign power once it has been lost, as prosecutorial power over non-members was lost under the original Duro court decision. Though tribes regained a power of non-member prosecution with the Duro amendment, the question under review by the Supreme Court is whether they regained it as an inherent sovereign right or as a federal delegation of authority to "dependent governments under the overriding sovereignty of the United States," as an analysis by the law firm of Hobbs Straus Dean & Walker in Washington states it.
The firm, long active in Indian advocacy litigation, foresees three immediate outcomes if the high court were to uphold lower court decisions in Lara that found the Duro amendment a delegation of federal power to dependents:
Tribes would be able to impose jurisdiction on non-member Indians only under delegated federal power - that is, only if the federal government decided not to prosecute the non-member first.
Inherent tribal sovereignty, the basis of tribal self-governance under the Constitution, once lost through dependency would be renewable as a congressional delegation of federal power - representing a permanent loss of inherent sovereign power.
By the Lara precedent if it stands, Supreme Court rulings, rather than acts of Congress, would define the extent to which tribes may have experienced an erosion of their inherent sovereign powers.
Part II of this series will explore the concept of tribal sovereignty, inherent and otherwise, under the Constitution.