WASHINGTON - The U.S. Supreme Court ruled on April 19 that Congress can
enlarge the powers of self-government exercised by tribes.
The 7 - 2 decision laid to rest the lingering effects of the 1990 Duro
decision that denied tribal criminal jurisdiction over non-member Indians
on the host reservation. Such jurisdiction is now certain. But along with
the decision came five opinions showing deep divisions on the court as to
whether tribes wield criminal jurisdiction over non-members as an inherent
power, or as a federally delegated authority. The difference is that
between undoubted sovereigns and, for instance, an administrative agency
authorized by Congress.
But for the short term anyway, the decision in U.S. v. Lara won
considerable applause from Indian country. The case has been closely
watched because of its implications for sovereignty on a high court
somewhat distrusted by tribes in the interpretation of federal Indian law.
A full understanding of the court's ruling in Lara, as well as the five
opinions that accompany it, requires some rather lengthy background:
The authority to prosecute non-member Indians for minor crimes had been
taken from tribes in the Supreme Court's 1990 Duro decision on the
precedent of an earlier case, known as Oliphant, that ruled tribes can lose
sovereignty if the Supreme Court finds its exercise "inconsistent with the
tribe's dependent status."
But when the Duro decision opened up a jurisdictional gap that made it
impossible to prosecute non-member Indian miscreants on reservations,
Congress, acting on the Duro court's own advice to fashion a remedy if
needed, passed the so-called "Duro fix," restoring tribal authority over
non-member Indians. Congress thereby recognized and affirmed the inherent
power of tribes to prosecute non-member Indians for minor crimes committed
on the host reservations. (Major crimes on reservations are within the
Enter Billy Jo Lara. A Turtle Mountain Chippewa tribal member, Lara married
a Spirit Lake tribal member and moved to that North Dakota reservation.
After repeated offenses, he pleaded guilty in tribal court to infractions
of the tribal code stemming from his violation of a tribal expulsion order.
The penalties levied against him included a 90-day jail sentence for
striking a tribal officer. Then federal prosecutors in North Dakota brought
charges of assault on a federal officer, a BIA employee, during the same
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.
But the presence of separate sovereigns in the case depended on the
validity of congressional intent to restore inherent tribal power that had
been set aside by the Supreme Court in Duro. Lara argued, however, that
Congress delegated federal sovereign power to the tribe for prosecution of
non-member Indians. This reading would have reduced reservations to the
status of federal agencies, existing solely as the creations of a superior
Two lower appeals courts disagreed on the proper legal interpretation of
all this, leaving the Supreme Court to settle the difference.
And on April 19, the court resisted the long trend toward complication in
federal Indian law and reached to the quick of it:
"We must decide [writes Justice Stephen Breyer for the court majority]
whether Congress has the constitutional power to relax restrictions that
the political branches have, over time, placed on the exercise of a tribe's
inherent legal authority. We conclude that Congress does possess this
It's a power that doesn't stop at Duro, but reaches back to include
Oliphant and earlier cases that limited tribal authority. Such cases the
court found "not determinative because Congress has enacted a new statute
[the Duro fix], relaxing restrictions on the bounds of the inherent tribal
authority that the United States recognizes. And that fact makes all the
In closing the court states, with certain reservations, "that the
Constitution authorizes Congress to permit tribes, as an exercise of their
inherent tribal authority, to prosecute non-member Indians. We hold that
Congress exercised that authority in writing this [Duro fix] statute. That
being so, the Spirit Lake Tribe's prosecution of Lara did not amount to an
exercise of federal power, and the Tribe acted in its capacity of a
If there is anything in the decision for tribes not to like, it is the
continuing discomfort of several justices with the logical inconsistencies
of law that spring from recognizing inherent sovereignty in the limited
dependent sovereignty of tribes. Justice John Paul Stevens, concurring with
the majority on the court, wrote a brief opinion in response to these
"While I join the Court's opinion without reservation, the additional
writing by my colleagues prompts this comment. The inherent sovereignty of
the Indian tribes has a historical basis that merits special mention. They
governed territory on this continent long before Columbus arrived. In
contrast, most of the States were never actually independent sovereigns,
and those that were enjoyed that independent status for only a few years.
Given the fact that Congress can authorize the States to exercise - as
their own - inherent powers that the Constitution has otherwise placed off
limits ... I find nothing exceptional in the conclusion that it can also
relax restrictions on an ancient inherent tribal power."
Justice Anthony M. Kennedy also concurred in the decision, but he issued a
separate opinion. Concerned that the court may have overstepped in
approving tribal authority over non-member Indians, he raises "difficult
questions of constitutional dimension" that the court was not called on to
decide in Lara:
"Lara, after all, is a citizen of the United States. To hold that Congress
can subject him, within our domestic borders, to a sovereignty outside the
basic structure of the Constitution is a serious step. The Constitution is
based on a theory of original, and continuing, consent of the governed.
Their consent depends on the understanding that the Constitution has
established the federal structure, which grants the citizen the protection
of two governments, the Nation and the State. Each sovereign must respect
the proper sphere of the other, for the citizen has rights and duties as to
both ... Here, contrary to this design, the National Government seeks to
subject a citizen to the criminal jurisdiction of a third entity to be
tried for conduct occurring wholly within the territorial borders of the
Nation and one of the States. This is unprecedented. There is a historical
exception for Indian tribes, but only to the limited extent that a member
of a tribe consents to be subjected to the jurisdiction of his own tribe.
"... it should not be doubted that what Congress has attempted to do is
subject American citizens to the authority of an extraconstitutional
sovereign to which they had not previously been subject."
Justice Clarence Thomas, also concurring in the overall decision, also
issued an opinion questioning the import of tribal sovereignty within the
Justice David Souter authored a dissenting opinion, joined by Justice
Antonin Scalia. They hold that in essence, Lara had it right. They pointed
to a 1993 precedent case in which the court "explained that 'tribal
sovereignty over nonmembers cannot survive without express congressional
delegation, and is therefore not inherent.' ... Our precedent, then, is
that any tribal exercise of criminal jurisdiction over nonmembers
necessarily rests on a 'delegation' of federal power and is not akin to a
State's congressionally permitted exercise of some authority that would
otherwise be barred by the dormant Commerce Clause ... It is more like the
delegation of lawmaking power to an administrative agency, whose
jurisdiction would not even exist absent congressional authorization....
confusion, I fear, will be the legacy of today's decision, for our failure
to stand by what we have previously said reveals that our
conceptualizations of sovereignty and dependent sovereignty are largely
"I would therefore stand by our explanations in Oliphant and Duro and hold
that Congress cannot reinvest tribal courts with inherent criminal
jurisdiction over nonmember Indians. It is not that I fail to appreciate
Congress's express wish that the jurisdiction conveyed by statute be
treated as inherent, but Congress cannot control the interpretation of the
statute in a way that is at odds with the constitutional consequences of
the tribes' continuing dependent status."
Souter concludes that Lara should not be tried in federal court, for by his
reading the tribe that tried him was not a separate sovereign.
So all told, two dissenting opinions, and two concurring opinions, raise
doubts about tribal sovereignty within the constitutional system. Taken
altogether, the opinions suggest a strong stomach on the court for further,
perhaps less friendly, explorations of tribal sovereignty.