On April 19, 2004, the Supreme Court handed down its decision in United States v. Billy Jo Lara allowing Indian tribes and the federal government to each prosecute nonmember defendants for the same on-reservation crime without violating the Double Jeopardy Clause. This case presented interesting questions of Indian tribal sovereignty and how Indian tribes fit into the American Constitutional structure of government. The case centered around a tribe's authority to prosecute nonmember Indians for crimes committed on that tribe's reservation.
Billy Jo Lara, an Indian, was arrested by Bureau of Indian Affairs (BIA) officers on the Spirit Lake Indian Reservation in 2001 for public intoxication. In the course of his arrest, Lara, who is not a member of the Spirit Lake Nation, struck one of the officers and subsequently pled guilty to three violations of the Spirit Lake Tribal Code. Lara was later charged in federal court with assaulting a federal officer, and moved to dismiss on the ground that his having to stand trial in both tribal and federal court for the same offense violated the Double Jeopardy Clause of the Fifth Amendment. The Eighth and Ninth Circuits, when confronted with this issue, had each reached very different conclusions, and the Supreme Court granted certiorari to resolve this split.
In order to answer the question of whether or not the federal prosecution violated Double Jeopardy, the Court had to explicate more clearly than in its previous cases the source of Indian tribal sovereignty. Relatedly, the Court also had to determine whether the answer to this question is grounded in the Constitution or in federal common law and legislation.
On April 19, 2004, the Supreme Court handed down its decision in United States v. Billy Jo Lara (1) allowing Indian tribes and the federal government to each prosecute nonmember defendants for the same on-reservation crime without violating the Double Jeopardy Clause. This case presented interesting questions of Indian tribal sovereignty and how Indian tribes fit into the American Constitutional structure of government. The case centered around a tribe's authority to prosecute nonmember Indians for crimes committed on that tribe's reservation.
Billy Jo Lara, an Indian, was arrested by Bureau of Indian Affairs (BIA) officers on the Spirit Lake Indian Reservation in 2001 for public intoxication. In the course of his arrest, Lara, who is not a member of the Spirit Lake Nation, struck one of the officers and subsequently pled guilty to three violations of the Spirit Lake Tribal Code. Lara was later charged in federal court with assaulting a federal officer, and moved to dismiss on the ground that his having to stand trial in both tribal and federal court for the same offense violated the Double Jeopardy Clause of the Fifth Amendment. The Eighth and Ninth Circuits, when confronted with this issue, had each reached very different conclusions, and the Supreme Court granted certiorari to resolve this split.
In order to answer the question of whether or not the federal prosecution violated Double Jeopardy, the Court had to explicate more clearly than in its previous cases the source of Indian tribal sovereignty. Relatedly, the Court also had to determine whether the answer to this question is grounded in the Constitution or in federal common law and legislation.
Given that the Constitution is relatively silent regarding Indians, (2) the question of how Indian tribes fit into the American structure of government has been a problematic issue for the courts almost since the Constitution was ratified. (3) Nevertheless, courts have carved out a place for Indian tribes within this structure through the doctrine of Indian tribal sovereignty, which holds that, while tribes lack the external powers normally associated with full sovereignty by virtue of their incorporation within United States territory (e.g., the power to enter into treaties with foreign nations), tribes retain sovereignty over their own internal affairs. (4) This sovereignty, however, is subject to complete defeasance by Congress, (5) which enjoys nearly plenary power to legislate in the field of Indian affairs. (6) Justice John Marshall famously likened the unique status of Indian tribes to "domestic dependent nations," and their relationship with the United States to "a ward to his guardian." (7) The Supreme Court has refined these ideas over the last two centuries to describe the limited authority that tribes have retained as those "inherent powers of a limited sovereignty which has never been extinguished." (8)
This inherent sovereignty doctrine reflects the fact that Indian tribes were at one time independent and self-governing societies (9) that existed prior to the United States Constitution, and much of their authority over their own internal affairs survived their assimilation into the United States. Because this power existed before the Constitution, it does not spring from that document, but is rather power retained from the tribes' days as sovereigns. (10) The Supreme Court has defined a tribe's inherent powers as those powers not inconsistent with the tribe's domestic dependent status. (11) As the Court put it, "Exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." (12) The inquiry into whether a tribe is exercising its inherent authority, then, must focus on whether a tribe's attempted exercise of authority falls "within that part of sovereignty which the Indians lost by virtue of their dependent status." (13) This distinction between a tribe's inherent authority and that authority which was divested upon the tribe's assimilation into United States territory is central to the conflict that faced the Supreme Court in Lara.
Also central to the conflict in Lara was the distinction between members of the tribe and outsiders - i.e., Indians who are not members of the tribe and non-Indians. The inherent sovereignty that a tribe enjoys over its internal affairs clearly extends to members of that tribe, but does not extend to non-Indians, even when they reside on the tribe's reservation. (14) The question of authority over nonmember Indians, however, has been the subject of some wrangling between the judicial and legislative branches, and Lara represented an opportunity for the Supreme Court to clarify this area of Indian law.
Billy Jo Lara, an Indian, was arrested by Bureau of Indian Affairs (BIA) officers on the Spirit Lake Indian Reservation in 2001 for public intoxication. In the course of his arrest, Lara, who is not a member of the Spirit Lake Nation, struck one of the officers and subsequently pled guilty to three violations of the Spirit Lake Tribal Code. (15) Lara was later charged in federal court with assaulting a federal officer, and moved to dismiss on the ground that his having to stand trial in both tribal and federal court for the same offense violated the Double Jeopardy Clause of the Fifth Amendment. (16) The Fifth Amendment's Double Jeopardy Clause states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Supreme Court has limited the protections of the Double Jeopardy Clause, however, by holding that it does not apply to a person who violates the laws of two independent sovereigns and thus commits a crime against each. (17) The deciding factor in whether this "dual sovereignty" doctrine applies is whether the two prosecuting entities derive their power from the same source. (18) So, in Lara, if the Spirit Lake Nation prosecuted Mr. Lara pursuant to its inherent authority - authority which, as discussed above, does not derive from the Constitution - then there was no double jeopardy problem when the federal government, which does get its power from the Constitution, also prosecuted Mr. Lara. On the other hand, if the Spirit Lake Nation traces its power to prosecute a nonmember Indian to a delegation from Congress, then that power springs from the Constitution, and Mr. Lara was tried twice in violation of the Double Jeopardy Clause.
In Duro v. Reina, (19) the Supreme Court was confronted with this same question of whether or not Indian tribes have inherent authority to assert criminal jurisdiction over nonmember Indians. The Court, citing the historical record and a concern for the personal liberties of nonmembers who could be punished by a government in which they have no part, found that tribes do not possess the inherent authority to assert criminal jurisdiction over nonmembers. (20) The Court noted, however, that Congress has the power to delegate such authority if it so chooses. (21)
Immediately following the Court's ruling in Duro, Congress amended the Indian Civil Rights Act (ICRA) (22) to include in the definition of "powers of self-government" the "inherent power of Indian tribes...to exercise criminal jurisdiction over all Indians" (23) (emphasis added). Congress also amended the definition of "Indian" to include all Indians subject to federal jurisdiction under the Major Crimes Act. (24) Congress specifically included the phrase "inherent power" to declare that this power was not being newly delegated to the tribes, but rather had always been with them. (25)
So, as Mr. Lara's case came before the Eight Circuit, the court had a very difficult inquiry before it. In order to determine whether the Double Jeopardy Clause had been violated, the court had to ascertain the source of the power the Spirit Lake Nation sought to exercise. To make that determination, however, the Eighth Circuit had to first rule on whether Congress acted impermissibly in overturning Duro.
The primary question for the Eighth Circuit was whether the Supreme Court's holding in Duro was based on the Constitution or federal common law. The Supreme Court has the final say in interpreting the Constitution, (26) and Congress cannot overturn such an interpretation without amending the Constitution itself. (27) Conversely, Congress is free to overturn judicial determinations of federal common law - which is based in neither the Constitution nor statute - with no such constraint. (28) The Eighth Circuit found that Duro was grounded in the Constitution, and that "the distinction between a tribe's inherent and delegated powers is of constitutional magnitude and therefore is a matter ultimately entrusted to the Supreme Court." (29) In reaching this conclusion, the court reasoned that the question of a tribe's inherent powers requires "ascertainment of first principles regarding the position of Indian tribes within our constitutional structure of government." (30)
The court went on to find that, because the decision in Duro was a constitutional one, Congress could not change it by statute, and therefore the ruling in Duro - that tribes have no inherent authority to assert criminal jurisdiction over nonmembers - stands. The only option open to Congress after Duro, the court continued, was to delegate criminal jurisdiction over nonmember Indians to the tribes. After construing the ICRA amendments as just such a delegation, the Eighth Circuit concluded that the Spirit Lake Nation was acting under this delegated authority, ultimately derived from the Constitution, and therefore the federal prosecution, tracing its power to the same source, violated the Double Jeopardy Clause. (31)
The dissent argued that the decision in Duro was not constitutional, but rather federal common law, evidenced by the fact that the Supreme Court analyzed history and governmental customs, rather than the Constitution, in reaching its decision. According to the dissent, the Supreme Court was forced to do this because in the few places that the Constitution mentions Indian tribes, it is only to clarify that they have extra-constitutional status. (32) "Without any statute stating whether Indian tribes had criminal jurisdiction over nonmember Indians," the dissent reasoned, "it acted as a common-law court, using whatever sources were relevant and readily at hand to ascertain the applicable legal principles and to answer the question before it." (33) What Congress did when it enacted the ICRA amendments, according to the dissent, was not to delegate newly-created authority, but rather to restore part of the inherent sovereignty that the Supreme Court had erroneously stripped away. As the dissent put it, Congress "merely relaxed a common-law restriction on a power previously possessed." (34) Since Duro was a common law decision, Congress clearly had the power to overrule it, said the dissent, especially in light of the plenary control that Congress enjoys over Indian tribal sovereignty. (35)
In United States v. Enas, (36) an earlier case dealing with facts very similar to those in Lara, the Ninth Circuit found the Duro ruling to be an interpretation of federal common law that Congress had the power to correct. The court recognized some difficulties with its ruling, however. First, the court saw a possible separation of powers problem where Congress overrules a Supreme Court's historical interpretation of the law. As the court put it, "[O]nce the Supreme Court has ruled that the law is 'X,' Congress can come back and say, "no, the law is "Y," but it cannot say that the law was never "X" or always "Y." (37) Second, the court was very concerned with the distinction between inherent and delegated authority, which also brought potential separation of powers problems into play. As the court put it, "Although the line between inherent and delegated powers is a fuzzy one, we are nonetheless required by Supreme Court precedent to recognize this line," and, after applying Duro's historical narrative, "to consider the respective powers of Congress and the courts with regard to this dispute." (38) With this required distinction in mind, the Court asked rhetorically: "[I]f a power first created by Congress tomorrow could be designated as "inherent," what power could ever be "delegated? Put simply, none." (39) But the court ultimately determined that, in the limited context of federal common law, Congress has the power to overrule the Supreme Court's interpretation of legal history. (40) The majority added an important qualification at the end of its opinion, however, stating that if this were a question of constitutional history, the ICRA amendments would have been impermissible. (41)
Both the federal government and various Indian tribes filed briefs with the Supreme Court in opposition to the Eighth Circuit's holding. The United States was primarily concerned with preserving its interest in seeing that violators of federal law are punished in a manner befitting their crimes. The United States pointed out in its brief that, while tribes may prosecute all offenses committed by Indians on their reservations, the punishment for any such offense is limited to one year imprisonment, a $5,000 fine, or both. (42) "Often, therefore," the government continued, "a tribal prosecution of a non-member Indian, even if successful, could not result in a sentence that adequately vindicates federal interests." (43) The United States also argued in its brief that criminals could benefit from a possible race between the tribal and federal governments to prosecute an offender. Echoing the Supreme Court's concern in an earlier case, the United States brief stated that "a non-member Indian would have a great incentive to enter a prompt plea in a tribal prosecution, thereby gaining protection from federal prosecution." (44)
As the case came before the Supreme Court, the Justices were also faced with the possibility that - were they to affirm the Eighth Circuit's holding - Congress might be forced to choose between the state of affairs mentioned above and divesting the tribes of some or all of their criminal jurisdiction over nonmember Indians. In an earlier case, the Supreme Court had recognized that such an option would eliminate the Double Jeopardy problem, but also give rise to new ones, in that it would frustrate the tribal interests in maintaining order and preserving traditional tribal customs regarding transgressions. (45)
On April 19, 2004, the Supreme Court handed down its decision overturning the Eighth Circuit. (46) The majority did not frame the issue before the Court as one of conflicting interpretations of federal common law or even of inherent vs. delegated authority. (47) Rather, Justice Breyer, writing for the majority, framed the issue thusly: "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." (48) The Court concluded that Congress does have this power, citing a variety of reasons, including Congress's broad legislative authority with respect to Indians, the Legislative Branch's long history of relaxing and restricting Indian authority, and the limited nature of the change in tribal authority embodied in the ICRA Amendments. (49)
Very significant in the majority opinion was the Court's characterization of the precedential effects of Wheeler, Oliphant, and Duro: "These holdings reflect the Court's view of the tribe's retained sovereign status as of the time the Court made them." (50) The majority essentially viewed the Court's decision in Duro as a snapshot taken at a specific time and drawn from specific sources, one of the most important of which was legislation. When Congress enacted the ICRA Amendments, it changed the landscape that was the subject of the earlier snapshot. (51)
While, according to the majority, congressional legislation tops the list of sources to which a court must look when considering inherent tribal sovereignty, noticeably absent from this list is the Constitution. The majority held that previous cases "did not set forth constitutional limits that prohibit Congress from...taking actions that modify or adjust the tribes' status." Rather, continued the majority, the Court's prior cases "make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches' own determinations." (52) Duro and those cases that came before it, then, were not Constitutional decisions, but rather judicial constructs, and, as the majority put it, "We do not read any of these cases as holding that the Constitution forbids Congress to change 'judicially made' federal Indian law through this kind of legislation." (53)
Because the tribe exercised its inherent authority, which does not spring from the Constitution, the second, federal case was prosecuted by a separate sovereign, and did not violate Double Jeopardy. Significantly, the majority left open two questions: first, whether the Due Process Clause of the Constitution forbids Congress from permitting tribes that lack certain Constitutional protections (specifically, the right to counsel) in their courts to prosecute nonmember Indians; (54) and second, whether the fact that the ICRA Amendments subject "all Indians" to tribal jurisdiction violates the Equal Protection Clause. (55)
The Supreme Court's holding in Billy Jo Lara preserves Congress's ability to allow tribes to prosecute nonmember Indians, while retaining the federal government's authority to prosecute those same defendants. It seems likely that the Court's holding also, in essence, eliminates the long-standing distinction between inherent and delegated authority in that Congress now clearly has the power to classify authority as "inherent" at its choosing. (56)
1. (back)United States v. Billy Jo Lara (541 U.S. __ ), No. O3-107 (2004).
2. (back)They are mentioned twice, in Article I, �� 2 and 8.
3. (back)See generally Frank Pommersheim, Is There a Little (or Not so Little) Constitutional Crisis Developing in Indian Law?: A Brief Essay, 5 U. Pa. J. Const. L. 271 (January 2003).
4. (back)United States v. Wheeler, 435 U.S. 313, 322-23 (1978).
6. (back)Morton v. Mancari, 417 U.S. 535, 551-552.
7. (back)Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
8. (back)United States v. Wheeler, 435 U.S. 313, 322 (1978).
9. (back)F. Cohen, Handbook of Federal Indian Law 229 (1982 ed.).
10. (back)Talton v. Mayes, 163 U.S. 376, 382-383 (1896).
11. (back)Duro v. Reina, 495 U.S. 676, 686 (1990) ("Had the prosecution been a manifestation of external relations between the Tribe and outsiders, such power would have been inconsistent with the Tribe's dependent status, and could only have come to the Tribe by delegation from Congress").
12. (back)Montana v. United States, 450 U.S. 544, 564 (1981).
13. (back)Wheeler, 435 U.S. at 326.
14. (back)Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978).
15. (back)See United States v. Billy Jo Lara, 324 F.3d 635, 636 (8th Cir. 2002).
17. (back)Heath v. Alabama, 474 U.S. 82, 88 (1985).
19. (back)495 U.S. 676 (1990).
22. (back)25 U.S.C. � 1301 et seq.
23. (back)25 U.S.C. � 1301(2).
24. (back)25 U.S.C. � 1301(4).
25. (back)See H.R. Conf. Rep. No. 102-261, at 3 (1991) (reprinted in 1991 U.S.C.C.A.N. 379, 380 ("[T]his legislation is not a delegation of [criminal jurisdiction over nonmember Indians] but a clarification of the status of tribes as domestic dependent nations. Hence, the constitutional status of Indian tribes as it existed prior to the Duro decision remains intact.")).
26. (back)Marbury v. Madison, 5 U.S. 137, 177 (1803).
27. (back)See, Boerne v. Flores, 521 U.S. 507 (1997).
28. (back)Erwin R. Chemerinsky, Federal Jurisdiction 349 (3d ed. 1999).
29. (back)United States v. Billy Jo Lara, 324 F.3d 635, 639 (8th Cir. 2003).
30. (back)Id. (quoting United States v. Weaselhead, 156 F.3d 818, 824 (8th Cir. 1998), vacated, United States v. Weaselhead, 165 F.3d 1209 (8th Cir. 1999).
32. (back)Id., at 644 (quoting Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. Chi. L. Rev. 671, 691 (1989)).
33. (back)324 F.3d at 644. The dissent also noted that the weight of academic authority agrees that the Duro decision was based in federal common law. See, e.g., Frank Pommersheim, "Our Federalism" in the Context of Federal Courts and Tribal Courts: An Open Letter to the Federal Courts' Teaching and Scholarly Community, 71 U.Colo. L. Rev. 123, 177 (2000); Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Nonmembers, 109 Yale L.J. 1, 65 (1999); L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 Colum. L.Rev. 809, 853 (1996).
36. (back)255 F.3d 662 (2001).
37. (back)Id., at 671 quoting Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 946 (9th Cir. 1998).
41. (back)Id., at 675 ("It cannot be the case that Congress may override a constitutional decision by simply rewriting the history on which it is based."). The concurrence took an approach similar to the one taken by the dissent in Lara, comparing tribal sovereignty to "a vessel that Congress may fill or drain at its pleasure, subject to certain constitutional limitations." Id., at 683.
42. (back)Brief for the United States at 20, United States v. Billy Jo Lara (U.S. No. 03-107).
44. (back)Id., at 21 (citing the Supreme Court's concern in Wheeler, 435 U.S. at 330-331, that "the prospect of avoiding more severe federal punishment would surely motivate a member of a tribe charged with commission of an offense to seek to stand trial first in a tribal court. Were the tribal prosecution held to bar the federal one, important federal interests in the prosecution of major offenses on Indian reservations would be frustrated").
45. (back)Wheeler, 435 U.S. at 331 ("The problem would, of course, be solved if Congress, in the exercise of its plenary power over the tribes, chose to deprive them of criminal jurisdiction altogether. But such a fundamental abridgement of the power of Indian tribes might be...undesirable").
46. (back)Justice Breyer wrote the majority opinion in which four other Justices joined, while Justices Kennedy and Thomas each filed separate opinions concurring in the result but departing significantly from the majority's rationale. Justice Souter filed a dissent in which Justice Scalia joined.
47. (back)In fact, of the four opinions written in this case (majority, two concurrences, and one dissent), only Justice Souter in his dissent devoted more than a couple of sentences to the inherent vs. delegated authority distinction that had been so central to prior decisions. To Justice Souter, the majority essentially stripped this long-standing distinction of any real meaning, which he found troubling. As Justice Souter put it, "Principles of stare decisis are particularly compelling in the law of tribal jurisdiction, an area particularly susceptible to confusion. And 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 rhetorical." United States v. Billy Jo Lara (541 U.S. __ ), No. 03-107, slip op., dissent at 4-5 (2004) (Souter, J., dissenting). On the other hand, Justice Thomas in his concurrence argued that the "inherent sovereignty" inquiry is itself misleading, and that previous case law directs a slightly different analysis. Specifically, he read Duro and Wheeler to hold that, while tribes possess a certain degree of sovereignty, "conflict with federal policy can operate to prohibit the exercise of that sovereignty." The proper question, then, is whether the Spirit Lake Nation's exercise of authority over a nonmember conflicted with federal policy. United States v. Billy Jo Lara (541 U.S. __ ), No. 03-107, slip op., concurrence at 7-10 (2004) (Thomas, J., concurring).
48. (back)United States v. Billy Jo Lara (541 U.S. __ ), No. 03-107, slip op. at 1 (2004). The majority's characterization of the ICRA Amendments as a "relaxation," rather than a grant of authority, drew sharp criticism from Justice Kennedy in his concurrence. "There is no language in the [ICRA Amendments], or the legislative history, that justifies this unusual phrase," Justice Kennedy wrote, "and...it obscures what is actually at stake in this case. The terms of the statute are best understood as a grant or cession from Congress to the tribes." United States v. Billy Jo Lara (541 U.S. __ ), No. 03-107, slip op., concurrence at 3 (2004) (Kennedy, J., concurring).
49. (back)United States v. Billy Jo Lara (541 U.S. __ ), No. 03-107, slip op. at 5-10 (2004).
51. (back)Using a rationale similar to the majority's here, the concurrence in Enas formulated the "snapshot" analogy after counsel for the United States at oral arguments had compared tribal sovereignty to "a vessel that Congress may fill or drain at its pleasure, subject to certain constitutional limitations." Using that metaphor, the concurrence reasoned that "Duro may be viewed as a snapshot of the tribal sovereignty vessel as it existed at the time Duro was decided." United States v. Enas, 255 F.2d 662, 680 (2001) (Pregerson, J., concurring).
56. (back)It should be noted, though, that according to the Eighth Circuit's dissenting opinion, which utilized reasoning similar to that of the Supreme Court majority, delegation would still come into play in those situations where Congress does not have the power to restore aspects of tribal sovereignty. United States v. Billy Jo Lara, 324 F.3d 635, 645-646 (2003) (Arnold, J., dissenting). It is not clear, however, under what circumstances such a situation could arise.
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