Order Code RS21691
December 18, 2003
CRS Report for Congress
Received through the CRS Web
United States v. Billy Jo Lara and Tribal
Sovereignty Over Nonmember Indians
American Law Division
The Supreme Court will hear oral arguments January 21 in United States v. Billy
Jo Lara, Docket No. 03-107, a case which presents an opportunity for the Court to
resolve a split in the U.S. Circuit Courts of Appeals on the issue of tribal sovereignty
over nonmember Indians. This confusion stems from the aftermath of the Court’s ruling
in Duro v. Reina, in which the Court held that a tribe has no inherent authority to assert
criminal jurisdiction over Indians who are not members of that tribe. Congress
responded by passing amendments to the Indian Civil Rights Act effectively overturning
the Supreme Court’s interpretation of inherent tribal authority. To resolve the conflict
presented by Lara, the Supreme Court must answer novel questions regarding the source
of tribal sovereignty and which branch has the final authority to determine the breadth
of that sovereignty. This report will be updated when the Court renders its decision.
Background. Given that the Constitution is relatively silent regarding Indians,1
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.2
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.3 This sovereignty, however, is subject
to complete defeasance by Congress,4 which enjoys nearly plenary power to legislate in
They are mentioned twice, in Article I, §§ 2 and 8.
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).
United States v. Wheeler, 435 U.S. 313, 322-23 (1978).
Congressional Research Service ˜ The Library of Congress
the field of Indian affairs.5 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.”6 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.”7
This inherent sovereignty doctrine reflects the fact that Indian tribes were at one time
independent and self-governing societies8 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.9 The Supreme Court has defined a tribe’s inherent powers as those powers
not inconsistent with the tribe’s domestic dependent status.10 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.”11 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.”12 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 facing the Supreme Court in Lara.
Also central to the conflict in Lara is 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.13 The question of authority over nonmember Indians, however, has been the
subject of some wrangling between the judicial and legislative branches, and Lara
represents 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
Morton v. Mancari, 417 U.S. 535, 551-552.
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
United States v. Wheeler, 435 U.S. 313, 322 (1978).
F. Cohen, Handbook of Federal Indian Law 229 (1982 ed.).
Talton v. Mayes, 163 U.S. 376, 382-383 (1896).
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
Montana v. United States, 450 U.S. 544, 564 (1981).
Wheeler, 435 U.S. at 326.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978).
subsequently pled guilty to three violations of the Spirit Lake Tribal Code.14 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.15 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.16 The deciding factor in whether this “dual sovereignty” doctrine applies is
whether the two prosecuting entities derive their power from the same source.17 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 San Carlos
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.
Duro and the ICRA Amendments of 1990. In Duro v. Reina,18 the Supreme
Court was confronted with the 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.19 The Court noted,
however, that Congress has the power to delegate such authority if it so chooses.20
Immediately following the Court’s ruling in Duro, Congress amended the Indian
Civil Rights Act21 to include in the definition of “powers of self-government” the
“inherent power of Indian tribes...to exercise criminal jurisdiction over all Indians”22
(emphasis added). Congress also amended the definition of “Indian” to include all
Indians subject to federal jurisdiction under the Major Crimes Act.23 Congress
See United States v. Billy Jo Lara, 324 F.3d 635, 636 (8th Cir. 2002).
See id., at 637.
Heath v. Alabama, 474 U.S. 82, 88 (1985).
Id, at 88.
495 U.S. 676 (1990).
Id., at 698.
25 U.S.C. § 1301 et seq.
25 U.S.C. § 1301(2).
25 U.S.C. § 1301(4).
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.24
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 San Carlos 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 Eighth Circuit Opinion. 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,25 and
Congress cannot overturn such an interpretation without amending the Constitution
itself.26 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.27 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.”28 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.”29
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.30
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
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.”)).
Marbury v. Madison, 5 U.S. 137, 177 (1803).
See, Boerne v. Flores, 521 U.S. 507 (1997).
Erwin R. Chemerinsky, Federal Jurisdiction 349 (3d ed. 1999).
United States v. Billy Jo Lara, 324 F.3d 635, 639 (8th Cir. 2003).
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).
Id., at 640.
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.31 “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.”32 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 commonlaw restriction on a power previously possessed.”33 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.34
The Ninth Circuit Opinion in United States v. Enas. In United States v.
Enas,35 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.”36 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.”37 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.”38 But the court
ultimately determined that, in the limited context of federal common law, Congress has
Id., at 644 (quoting Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the
Federal Courts, 56 U. Chi. L. Rev. 671, 691 (1989)).
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 Millenium, 96 Colum. L.Rev. 809, 853 (1996).
324 F.3d at 641.
Id., at 646.
255 F.3d 662 (2001).
Id., at 671 quoting Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 946 (9th Cir.
Id., at 670.
the power to overrule the Supreme Court’s interpretation of legal history.39 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
The Importance of Lara. Both the federal government and various Indian tribes
have filed briefs in opposition to the Eighth Circuit’s holding. The United States is
concerned about preserving its interest in seeing that violators of federal law are punished
in a manner befitting their crimes. The United States points 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.41 “Often, therefore,” the government continues, “a tribal prosecution of a nonmember Indian, even if successful, could not result in a sentence that adequately
vindicates federal interests.”42 The United States also argues 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 states 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.”43
If the Supreme Court adopts the Eighth Circuit’s reasoning, Congress may have to
choose between the state of affairs mentioned above and divesting the tribes of some or
all of their criminal jurisdiction over nonmember Indians. The Supreme Court has
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.44
For these reasons, it seems unlikely that the Supreme Court will follow the Eighth
Circuit’s rationale in Lara. In crafting a judicial solution to the unique dilemma presented
by the case, however, the Court also has an opportunity to offer a clearer picture of how
Indian tribes fit into the American constitutional structure, and to more sharply define the
roles of the Legislative and Judiciary branches in relation to Indian tribal sovereignty.
324 F.3d at 675.
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.
Brief for the United States at 20, United States v. Billy Jo Lara (U.S. No. 03-107).
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”).
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