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U.S. v. Lara: two questions

WASHINGTON - The questions that will come before the Supreme Court Jan. 21 in U.S. v. Lara boil down to an essential two, two that were settled differently in separate circuit courts.

As the U.S Department of Justice frames them, arguing in behalf of tribal authority over nonmember Indian miscreants ? Does a tribe act on its sovereign authority in prosecuting a member of another tribe for minor crimes committed on its territories, as held by the 9th Circuit Court of Appeals in 2001? Or does it act as an instrumentality of the United States, as the 8th Circuit determined in 2003?

In resolving this difference of opinion, the high court may address perhaps the highest-profile issue in Indian country - inherent sovereignty. Within the framework of Constitutional law, tribes possess this attribute independent of the U.S. federal system, by virtue of self-governance over centuries long before "We the People" of the United States sought to establish a "more perfect union" in founding documents. But to what degree has inherent tribal sovereignty been compromised by dependence and the "plenary power" of Congress to work its own sovereign will, and to what degree do tribes still exercise authority within their dominions?

The Supreme Court may go so far as to address these issues.

Then again, it may not. Especially not if it takes any bearings from the amicus curiae or "friend of the court" brief filed by six states that argue against tribal authority over nonmembers as it comes before the court in Lara - that is, as a restoration of retained inherent authority.

These states oppose the congressional restoration of inherent power to tribes following the 1990 Duro decision, arguing that it would "operate wholly outside the parameters of the Constitution" and "lay the doctrinal foundation for incalculable damage in the future to the very fabric of the Constitution." In fact these states - Idaho, Alabama, Louisiana, Nebraska, South Dakota, Utah - use the phrase "retained inherent authority" insistently throughout their brief instead of the "inherent power" Congress preferred in laying down the law at issue (the so-called "Duro fix" that restored tribal power to prosecute nonmember Indians for minor crimes on reservations).

Yet in some indication of the case's myriad complex layers (touched on in the previous three parts of this series), the same states urge a solution on the court that would neither undermine the separate sovereignty of tribes in their tribal courts, nor address their overall inherent authority. The defendant Billy Jo Lara's claim of "double jeopardy" (prosecution twice by the same sovereign power, federal sovereign power in this instance, on the same case elements) should fail, because his "tribal court conviction was the act of a separate sovereign and did not bar his subsequent federal court conviction." Tribal authority is therefore moot and the high court should not address it in Lara.

Under this proposed disposition of the case, these states accept tribes as separate sovereigns and would not challenge their authority over nonmember Indians, not at least on the facts in Lara.

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Their primary distress in the case is with Congress and the position taken in Lara by the U.S. Department of Justice. Their sticking point is restoration of authority the Duro court found extinguished. Restoration of retained inherent authority, as legislated by Congress and now litigated by the DOJ, could lead to recognition of inherent tribal authority over states, the brief maintains. "Congress cannot create the authority" it tried to restore - it erred in assuming it could. And to resist congressional dispensations of authority on dodgy legal grounds is a longstanding tradition of states.

Certain "canons of construction" in U.S. jurisprudence discourage courts from raising difficult constitutional issues where that can be avoided, this particular argument goes on. The canon at issue here, according to these states, dictates that terms taken by Congress from common law to become part of new legislation retain their common law meanings. The common law meaning of tribal "inherent power," as Congress describes what it sought to restore in the Duro fix, is "retained inherent tribal authority" - which the Supreme Court's original Duro opinion found missing for tribal prosecution of nonmember Indian minor crimes, as an extension of tribes' dependent status.

"The United States, however, essentially contends that Congress can assume pursuant to its Indian Commerce Clause the duties traditionally discharged by the courts and thus discharge both roles even to the point of legislatively vetoing a decision by this court."

If the high court follows this line of reasoning, one would expect it to do so in light of its own instruction accompanying the 1990 Duro decision. Recognizing at that time that its cancellation of tribal prosecutorial power over nonmember Indians could create a jurisdictional gap, the court also recognized in plain language that Congress might provide a remedy if one proved necessary.

In a separate amicus brief, eight other states support Congress in its "Duro fix" and tribes in their authority over nonmember Indians. Washington, Arizona, California, Colorado, Michigan, Montana, New Mexico, Oregon - all note that tribes have a history of authority over nonmember Indians. Many reservations are home to confederated tribes of several tribal lineages, federal obligations are due to nonmember Indian residents of reservations, and U.S. history is replete with instances of tribal diversity within singly self-governed communities.

For these states too, common law comes up. Congress cannot overrule a final constitutional holding of the Supreme Court, for it is the judiciary role to say what law is under the Constitution's separation of powers clause. If that were that, Congress would indeed have overstepped in supplying the Duro fix.

But these states maintain that Congress changed common law, not a constitutional holding. This was in keeping with its unquestioned authority to "amend statutes and treaties like those that formed the backdrop for this Court's holding in Duro that help to define the powers of Indian tribes." In so helping to define the powers of tribes, Congress restored the sovereign power to prosecute nonmembers.

In addition, these states argue that tribes' authority to prosecute nonmember crime has not been nullified by dependency, but rather has been modified by amendment in the same way the Duro fix now amends the Indian Civil Rights Act. "In enacting the 1990 and 1991 amendments ? Congress validly restored Tribes' sovereign power to prosecute non-member Indians. The enactment has the effect of amending treaties, other laws, and federal common law that expressly or impliedly withdrew tribes' power to prosecute non-member Indians."

(Continued in Part Five)