Like Enas before him, Billy Joe Lara, from whatever tribe he comes, now offers an opportunity to the Supreme Court in United States v. Lara (oral argument Jan. 21) to continue the subtle course of conquest of Native peoples in this country. It is, however, an illustrative case of structural shortcomings in federal Indian law. The irony of Lara's case is that he may be undermining the authority of his own and all other tribes.
The facts of the case are simple: Lara is a member of an Indian tribe, but he got into trouble on another reservation. That tribe, the Spirit Lake Sioux, employs BIA police. When Lara was arrested he was told that he was in violation of an exclusion order. On hearing that pronouncement, he punched the officer. Even though he was found guilty of that battery and sentenced to tribal jail, the U.S. Attorney decided to file federal charges so that he might spend extra time in a federal prison. His federal public defender raised the defense that the tribe's criminal jurisdiction over Lara was delegated to the tribe by Congress and not inherent. If it was delegated authority, then Lara was being unconstitutionally subjected to double jeopardy.
But the implications of this case are far from simple. If the Supreme Court agrees, all tribes will lose criminal jurisdiction over non-member Indians. This will have profound effects in cases involving spousal, child and elder abuse. The complexity of the case is shrouded, though. Several years ago when the Supreme Court initially determined in Duro v. Reina that tribes do not have jurisdiction over non-member Indians, Congress responded by passing an amendment to the Indian Civil Rights Act that said, in essence, that Congress had never intended to deprive tribes of that kind of jurisdiction. Lara's attorney is arguing that this amounts to a delegation of federal authority. At a deeper level, the argument is that when the Supreme Court determined that tribes shouldn't have criminal jurisdiction over non-member Indians, that the decision rested on Constitutional theory about the relationship between the federal government and the tribes. Such being the case, Congress did not have the authority to change the Supreme Court's ruling unless it was going to delegate such criminal authority to the tribes. Bluntly put, this case is about whether Congress or the Supreme Court has the last say in Indian affairs.
To thinking people this is pure federalist garbage. For well over a century we have been told that there exists a Trust relationship between the federal government and Indian tribes. It is totally gone in this case. To start with, there was a complete failure of federal deference to the tribal court's decision that should have been dictated by the so-called "government-to-government" relationship. What was the U.S. Attorney thinking? Did the U.S. Attorney forget that he or she was responsible to act as a guardian of Spirit Lake's sovereignty? Most likely, the cop culture mentality that drives prosecuting attorneys to hunt down cop assailants was just eating away at that attorney's conscience and better judgment. In other words, the U.S. Attorney did forget.
It gets worse.
This is very much about a BIA officer: what did he expect? That he would never get punched in the line of duty? Is this case supposed to be a deterrent that says that people who punch BIA officers will be punished more than those who punch tribal officers? Because if this had been a tribal officer, the case would have ended with the Spirit Lake decision and no tribe's jurisdiction would be at stake.
It doesn't end there. Lara's defense counsel in knee-jerk legal pathological form formulated a zealous defense most likely unaware that he would also be compromising Lara's interests in his own tribe's governmental integrity.
The "buck" makes its way across the desk of Attorney General John Ashcroft shortly before it lands on the desk of President Bush. Ashcroft should well know that Indian sovereignty is a fragile thing that requires diligent vigilance on the part of the Department of Justice to protect. The Trust relationship is not merely the charge of the Department of the Interior but cuts across all departments and branches of the federal government - that is the duty of the President to ensure.
The U.S. Attorney involved in the Lara case should have placed the trust responsibility for Spirit Lake sovereignty well above the mores of cop culture. The public defender should have consulted Lara's tribe before adopting this dangerous and specious argument. These things can and ought to be fixed.
On the question of Congressional or Supreme Court supremacy in Indian affairs, however, we have only troublesome worries. Two years ago, when Justices Breyer and O'Connor visited with Indian tribes and their courts, both urged the tribes to go to Congress to cure any problems regarding jurisdiction. This might portend the outcome in Lara. But it's hard to say what is the right answer in this case. To begin with, there is no Constitutional theory regarding the relationship between the federal government and Indian tribes. This is the fundamental structural shortcoming of the relationship. It would be stretching reason to argue that what the Supreme Court decides in Indian affairs ever rested on a single provision of the U.S. Constitution. If the Supreme Court decides that it has the last say, we would at least have the advantage that the Supreme Court might finally realize that it can and must reverse the chain of bad decisions that have made Indian "sovereignty" the secret joke of legal philosophers.
But if you make Congress the final word in Indian affairs, you place our fates in the hands of an often times, raucous crowd - at least in the field of Indian affairs. It would allow Lara to go to federal prison, but that's not what Native peoples want. Then again, any Indian who threatens Indian sovereignty deserves to be punished - maybe Congress ought to make that into law.
Judge Carey N. Vicenti, a member of the Jicarilla Apache Nation of northwest New Mexico, currently serves as an assistant professor of Sociology at Fort Lewis College in Durango, Colo. He sits as a judicial official for several American Indian nations and is a columnist for Indian Country Today.