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Supreme Court hears tribal powers case
Thursday, January 22, 2004

The U.S. Supreme Court heard oral arguments on Wednesday in a case testing the relationship between the federal government and tribal nations.

During an hour of debate, the justices posed difficult questions to both parties in the pivotal dispute. They openly struggled to reconcile an earlier decision of the court with legislation aimed at overturning that precedent.

The case, U.S. v. Lara, started out about jurisdiction and whether tribes can prosecute members of other tribes. It soon turned into a larger debate about the ability of Congress to define the parameters of tribal sovereignty.

Edwin S. Kneedler, a Department of Justice attorney, told the court that federal law recognizes tribal jurisdiction over all Indians, regardless of membership. "Congress has plenary power over the exercise of a tribe's own powers," he said.

But some members of the court had trouble accepting this line of thought. Led by Justice Antonin Scalia, they wondered whether Congress could end up subjecting non-Indians to tribal governments.

"That's a step I'm not prepared to contemplate," Scalia said.

Agreeing with these sentiments was the lawyer for Billy Jo Lara, an Indian man who served time in tribal court for an offense for which the federal government later indicted him. Alexander F. Reichert, a public defender from North Dakota, argued that Congress went too far by overturning a Supreme Court decision.

"Congress cannot restore tribal sovereignty, by definition," he said.

The justices, however, weren't inclined to side with Reichert either. They pressed him to explain what keeps lawmakers from changing the nature and status of tribal sovereignty.

"I don't see anything in the Constitution that would stop Congress from doing that," said Justice Stephen G. Breyer.

At issue is a piece of legislation commonly known as the "Duro fix." Passed in 1991, it was named for a Supreme Court decision handed down a year before. In Duro v. Reina, the court ruled that tribes lack authority to prosecute members of other tribes.

The ruling stirred a fury in Indian Country that Congress was quick to address. Lawmakers said the fix "recognized and affirmed" the inherent power of tribes to exercise criminal jurisdiction over "all Indians."

How the law is interpreted is key to resolution of the case. It can be viewed as illegal, leaving the Duro decision intact. Or it can be seen as a delegation of federal power to tribes, in which case dual tribal-federal prosecution is barred by the double jeopardy clause of the Constitution.

Kneedler argued the third scenario -- that the fix was a proper exercise of Congressional power. He said Supreme Court cases predating Duro contemplated the need for Congress to "modify" the rules of tribal sovereignty.

Justice David H. Souter questioned whether adopting this argument would mean rewriting the concept of tribal sovereignty the court has adopted in the past 30 years. In several decisions, the justices have said that a tribe can only exercise powers that are not inconsistent with its status as a "domestic dependent nation."

"The tribe can't have that power if we consider the tribe to be a subordinate sovereign," Souter said.

In addition to attacking the law itself, Reichert said it delegated federal authority to tribes. He said Lara, who had been ousted from the Spirit Lake Reservation in North Dakota for domestic violence incidents before being convicted for punching a Bureau of Indian Affairs officer, should not be punished twice for the same crime. Lara is a member of the Turtle Mountain Chippewa Tribe, also of North Dakota.

The Bush administration brought the dispute to the court's attention because lower courts have arrived at different conclusions. The 9th Circuit concluded that Congress properly recognized tribal sovereignty while the 8th Circuit disagreed. Both circuits cover a significant number of reservations.

The National Congress of American Indians (NCAI), the largest inter-tribal organization, 18 tribes and several states have sided with the government in favor of the Duro fix. Another group of states supported the government in part but questioned whether Congress has absolute power to change the federal-tribal relationship.

The National Association of Criminal Defense Lawyers, three counties with reservation lands, the Citizens Equal Rights Foundation (CERF) and an Indian family in Montana allied with CERF filed briefs in support of Lara. They cautioned against an expansion of tribal jurisdiction.

A decision is expected by July.

Relevant Documents:
Docket Sheet: No. 03-107 (Supreme Court) | Briefs: U.S. v. Lara (NCAI/NARF Supreme Court Project)

Get the Decision:
8th Circuit: U.S. v. Lara (en banc) (March 24, 2003) | U.S. v. Lara (panel) (June 20, 2002)

Related Decisions:
9th Circuit: U.S. v. Enas (June 29, 2001) | 7th Circuit: U.S. v. Long (March 20, 2003)