The Supreme Court
Professor Edward Hartnett
Spring 2004
IN THE
SUPREME COURT OF THE UNITED STATES
Docket No. 03-107
UNITED STATES OF AMERICA – Petitioner,
v.
BILLY JO LARA – Respondent.
On appeal from the final order of the Court of Appeals for the Eighth Circuit
BENCH MEMORANDUM
On the memorandum: Andrea W. Hattan
I.
QUESTIONS PRESENTED
May Congress override the Supreme Court’s decision in Duro v. Reina1 and
restore or provide Indian tribes the authority to prosecute non-member Indians for
criminal offenses?
Assuming arguendo such congressional action is permissible, did the Indian Civil
Rights Act Amendments of 19902 effectively restore the Indian tribes’ inherent sovereign
power to prosecute non-member Indians or, instead, delegate this federal prosecutorial
power to the tribes?
Accordingly, did the second prosecution of respondent, Billy Jo Lara, brought by
the federal government subsequent to his conviction for the same crime with the same
elements by the Sprit Lake Nation tribal court violate respondent’s rights under the
Double Jeopardy Clause?
II.
JURISDICTIONAL STATEMENT
Final judgment of the Eighth Circuit Court of Appeals was entered in this matter
on March 24, 2003.3 On September 30, 2003 the Court granted the petition for a writ of
certiorari.4 Pursuant to 28 U.S.C. § 1254(1) the Supreme Court has jurisdiction to
consider this matter.5
1
Duro v. Reina, 495 U.S. 676 (1990).
Indian Civil Rights Act, 25 U.S.C. § 1301 et seq.
3
United States v. Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. granted, 124 S. Ct. 46
(2003) (No. 03-107). The Court of Appeals for the Eighth Circuit had jurisdiction over this matter pursuant
to 28 U.S.C. § 1291.
4
Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. granted, 124 S. Ct. 46.
5
28 U.S.C. § 1254(1); see also United States v. Lara, 324 F.3d 635 (8th Cir. 2003) (en banc).
2
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III.
FACTS AND PROCEDURAL POSTURE
A tribal court of the Spirit Lake Nation Reservation convicted respondent, a nonmember Indian, of assaulting a police officer.6 Thereafter, a federal grand jury indicted
respondent on assault charges, 18 U.S.C. § 111(a)(1), for the same incident.7 Defendant
moved to dismiss the federal indictment, asserting double jeopardy and selective
prosecution arguments.8
The district court for the District of North Dakota denied respondent’s motion to
dismiss on the basis of the Double Jeopardy Clause.9 Respondent, reserving his right to
appeal the court’s ruling on his motion to dismiss, entered a conditional guilty plea to the
6
Lara, 324 F.3d at 636. Respondent Billy Jo Lara is a member of the Turtle Mountain Band of Chippewa
Indians who resides on the Spirit Lake Indian Reservation in North Dakota. Brief of Amici Curiae on
Behalf of Eighteen American Indian Tribes at *4, 2003 WL 22766745 (Nov. 14, 2003) (No. 03-107)
(respondent married and fathered two children by a Spirit Lake member). On June 13, 2001, respondent
was arrested on the Spirit Lake Indian Reservation by Bureau of Indian Affairs police officers for public
intoxication. Lara, 324 F.3d at 636. After being informed by one of the officers that he was subject to an
exclusion order forbidding him from entering the reservation, respondent punched the officer. Id.
The Spirit Lake Indian Reservation charged defendant with violating five Spirit Lake Tribal Code
provisions: “violence to a policeman, resisting lawful arrest, public intoxication, public intoxication,
disobedience to a lawful order of the tribal court, and trespassing.” Id. Defendant entered a guilty plea to
the first three asserted violations. Id. Accordingly, the tribal court sentenced defendant to jail term of 155
days. Id.
7
Id. On August 29, 2001, a federal grand jury indicted defendant for assaulting a federal officer in
violation of 18 U.S.C. § 111(a)(1). Id. Respondent consented to having the case go before a magistrate
judge pursuant to 18 U.S.C. § 3401(b). United States v. Lara, No. C2-01-58, 2001 WL 1789403, at *1
(D.N.D. Nov. 29, 2001) (mem.).
8
Lara, 324 F.3d at 636; Lara, 2001 WL 1789403, at *1. Both motions to dismiss were denied by the
district court upon the recommendation of the Magistrate Judge. Lara, 2001 WL 1789403, at *1.
9
Lara, 324 F.3d at 636. Finding two decisions rendered by district courts in the Eighth Circuit, as well as
the Ninth Circuit’s decision in United States v. Enas persuasive, the Lara district court found that the ICRA
Amendments validly recognized Indian tribes “inherent right[]” to prosecute non-member Indians. Lara,
2001 WL 1789403, at *3 (citing United States v. Weaselhead, 36 F. Supp. 308 (D. Neb. 1997); United
States v. Archambault, No. CR 00-30089, 2001 WL 1297767 (D.S.D. Oct. 18, 2001); United States v.
Enas, 255 F.2d 662 (9th Cir. 2001)). Accordingly, the district court found that the federal prosecution of
respondent Lara derived from a different sovereign power than the tribal court prosecution and, thus, the
second prosecution did not violate respondent’s double jeopardy rights. Id.
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federal charges.10 Prior to sentencing, respondent timely filed an interlocutory appeal of
his pretrial motions to dismiss.11
On appeal, a divided three-judge panel of the Eighth Circuit Court of Appeals
affirmed the district court’s denial of respondent’s motion to dismiss on double jeopardy
grounds.12 The court held that no double jeopardy violation had occurred because, in
10
Lara, 324 F.3d at 636.
Appeal to the Eighth Circuit Court of Appeals was timely filed November 29, 2001, the same day the
magistrate judge issued her Memorandum Opinion. See Brief for Apellee, United States v. Lara, 2002 WL
32103194 (Feb. 8, 2002) (No. 01-3695NDF) (no contention that appellant’s appeal was untimely).
Although “a final judgment results when the defendant is convicted and sentenced,” Berman v. U.S.
302 U.S. 211, 212-13 (1937), convictions resting on conditional guilty pleas “present few distinctive
problems of finality.” 15B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3918.7 (1992) [hereinafter WRIGHT, MILLER & COOPER] (“The
plea may be withdrawn if the defendant prevails on appeal, but not after losing on appeal. Any other rule
would threaten to convert the conditional plea into a low-risk means of circumventing the final judgment
rule.”). Thus, under 28 U.S.C. § 1291, the denial of a pretrial motion to dismiss a criminal indictment
asserted on double jeopardy grounds constitutes a “final decision.” 28 U.S.C. § 1291; see Abney v. United
States, 431 U.S. 651, 656-62 (1977).
Respondent waited to take appeal from the district court after entering a conditional plea of guilt.
Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL 22428587, at *6, n.1 (July
22, 2003) (No. 03-107). Notably, the fact that appeal was filed after “jeopardy had attached in the second
prosecution,” rather than at the time the court denied the motion to dismiss, does not effect the validity of
the interlocutory appeal under § 1291. Id; see also United States v. Faber, 57 F.3d 873, 874-75 (9th Cir.
1995) (holding that where the only condition placed on a conditional plea of guilt is that it is “subject to
appeal” on a particular issue and where the court acceptance of the plea is final, jeopardy attaches)
(“Jeopardy ordinarily attaches in a criminal proceeding when the court accepts a plea agreement.”). Accord
Bally v. Kemna, 65 F.3d 104, 107 (8th Cir. 1995) (“[A]s a general rule courts have held that jeopardy
attaches when a trial court unconditionally accepts a guilty plea.”). Indeed, even after a criminal defendant
is sentenced following his conditional plea of guilt the defendant may generally appeal to challenge
jurisdiction. United States v. Gaertner, 583 F.2d 308, 310-11 (7th Cir. 1978) (defendant’s guilty plea did
not bar appeal on claim of double jeopardy violation); 15B WRIGHT, MILLER & COOPER § 3918.7.
12
United States v. Lara, 294 F.3d 1004, 1007 (8th Cir. 2003), vacated upon rehearing en banc, 324 F.3d
635 (8th Cir. 2003), petition for cert. granted, 124 S. Ct. 46. As noted supra note 9, respondent filed two
motions to dismiss. The first asserted that the first prosecution violated his Double Jeopardy rights and is
the subject of this appeal. Id. The second motion to dismiss claimed that the federal prosecution
constituted impermissible selective prosecution. Id.
The three-judge panel of the Court of Appeals for the Eighth Circuit considered and rejected
respondent’s motion to dismiss on the grounds of selective prosecution. Id. Respondent’s selective
prosecution argument was based on the applicability of the Petite policy of the United States Attorney. Id.
Under the Petite policy, U.S. Attorneys’ do not try defendants for federal misdemeanors that have
previously resulted in state or federal convictions. Id. (citing UNITED STATES ATTORNEYS’ MANUAL § 92.031). The panel, however, found that the Petite policy does “not confer substantive rights,” and that, in
any case, respondent did not sufficiently demonstrate that the Petite policy has a discriminatory effect and
purpose. Id. (citation omitted). Accordingly, the panel affirmed the district court’s denial of respondent’s
second motion to dismiss. Id. This issue is not before the Court here. See Lara, 324 F.3d 635 (8th Cir.
2003), petition for cert. filed, 2003 WL 22428587.
11
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prosecuting respondent, Spirit Lake Nation exercised its retained sovereign power.13
Accordingly, the respective prosecutions of the Spirit Lake Reservation tribal court and
the district court were derived from independent sovereign authorities.14
Thus,
respondent’s Fifth Amendment rights were not violated by the federal prosecution.15
Chief Judge Hansen dissented.16 He found that the two prosecutions derived their
authority from the same ultimate authority, Congress.17 Thus, the dissent posited, the
second prosecution violated the Double Jeopardy Clause and would have reviewed and
ordered the dismissal of the indictment.18
The Court of Appeals for the Eighth Circuit reheard the case en banc and reversed
the district court judgment.19
The court held that Spirit Lake Nation Reservation
prosecuted respondent pursuant to federally delegated authority, not an inherent
sovereign power.20 Accordingly, the second prosecution authorized by the United States
District Court violated respondent’s rights under the Double Jeopardy Clause.21
13
Lara, 294 F.3d 1004 at 1007.
Id.
15
Id.
16
Id. at 1010 (Hansen, J., dissenting).
17
Id.
18
Id.
19
Lara, 324 F.3d at 639 (7-4 decision) (reviewing de novo the district court’s dismissal of respondent’s
motion to dismiss the federal indictment on Double Jeopardy Clause grounds). On rehearing en banc, the
Court of Appeals for the Eighth Circuit addressed respondent’s double jeopardy argument but not
respondent’s selective prosecution argument. See id. (failing to review respondent’s selective prosecution
argument); cf. discussion supra note 12. The en banc court vacated the panel decision in full and thus, the
panel decision’s ruling on the selective prosecution issue was not left standing in the appeals court. See
Lara, 324 F.3d at 639 (“We granted Lara’s petition for rehearing en banc, vacating the panel’s opinion and
judgment.”).
20
See id.; see also Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL
22428587.
21
See Lara, 324 F.3d at 639; see also Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed,
2003 WL 22428587, at *6, n.1. The Eighth Circuit explained that after a sovereign power of an Indian
tribe is stripped by the federal government, “it is no longer an inherent power and it may only be restored
by delegation of Congress’s power.” Lara, 324 F.3d at 639 (quoting United States v. Wheeler, 435 U.S.
313, 322 (1978)).
14
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Four circuit court judges dissented.
22
Writing for the dissent, Judge Arnold
opined that in trying respondent, the tribal court exercised inherent sovereign power. 23
Therefore, the dissent reasoned, distinct sovereign authorities authorized the tribal court
and subsequent federal prosecutions.24
The dissent would have affirmed the district
court’s decision to deny defendant’s motion to dismiss.25
The Supreme Court granted the Petition for a Writ of Certiorari filed by the
United States of America.26
IV.
CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE
A. THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT
The Double Jeopardy Clause of the Fifth Amendment provides in relevant part:
“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life
or limb...”27
B. THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
The Due Process Clause of the Fifth Amendment provides in relevant part:
“[N]or shall any person . . . be deprived of life, liberty, or property, without due process
of law...”28
22
Id. at 641 (Arnold, J., dissenting).
Id.
24
Id.
25
Id.
26
Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL 22428587. Petitioner
cited three primary reasons for granting certiorari: (1) the Eighth Circuit erroneously held that Congress
lacks the authority to restore previously inhibited tribal sovereign powers, (2) the Eighth Circuit
erroneously held that the ICRA Amendments constitute a delegation of federal power, and (3) that the
Eighth Circuit’s decision created a circuit split with the Ninth Circuit. Id. at *10, *16, *18. Compare Lara,
324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. granted, 124 S. Ct. 46, with United States v. Enas,
255 F.3d 662, 666-67 (9th Cir. 2001) (en banc), cert. denied, 534 U.S. 1115 (2002). Moreover, the
petitioner asserts that the resolution of the circuit split will significantly impact law enforcement in Indian
country. Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL 22428587. A
significant portion of Indian lands falls within the bounds of these two circuits’ jurisdiction. Id.
27
U.S. CONST. amend. V.
23
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C. INDIAN CIVIL RIGHTS ACT OF 1968, 25 U.S.C. 1301 ET SEQ.
Sections 1301 through 1303 of Title 25 of the United States Code are also at
issue.29 In particular, the amendments to the Indian Civil Rights Act (“ICRA”) made by
Congress in reaction to the 1990 Supreme Court decision in Duro v. Reina are central to
the disposition of this case. Section 1301 provides:
For purposes of this subchapter, the term—
(1) “Indian Tribe” means any tribe, band, or other group of Indians subject to the
jurisdiction of the United States and recognized as possessing powers of selfgovernment;
(2) “Powers of self-government” means and includes all governmental powers
possessed by an Indian tribe, executive, legislative, and judicial, and all
offices, bodies and tribunals by and through which they are executed,
including courts of Indian offenses; and means the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over
all Indians;
(3) “Indian court” means any Indian tribunal court or court of Indian offense; and
(4) “Indian” means any person who would be subject to the jurisdiction of the
United States as an Indian under section 1153, Title 18, if that person were to
commit an offense listed in that section in Indian country to which that section
applies.30
In relevant part, § 1302 states: “No Indian tribe in exercising powers of self-government
shall . . . (2) subject any person for the same offense to be twice put in jeopardy.”31
Section 1303 provides: “The privilege of the writ of habeas corpus shall be available to
28
U.S. CONST. amend. V. Pursuant to Bolling v. Sharpe, the federal government is subject to the Equal
Protection Clause via the Fifth Amendment’s due process clause. Bolling v. Sharpe, 347 U.S. 497 (1954).
Thus, the federal government must adhere to the Equal Protection guarantees of the Fourteenth
Amendment. Id. The Equal Protection Clause of the Fourteenth Amendment provides in relevant part:
“nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
CONST. amend. XIV, § 1.
29
Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL 22428587, at *2.
30
25 U.S.C. § 1301 (2004) (emphasis added). Please note that the language italicized was added by
Congress in 1990 following the Supreme Court’s decision in Duro v. Reina. Prior to 1990 § 1301(2) read
as follows: “‘Powers of self-government’ means and includes all governmental powers possessed by an
Indian tribe, executive, legislative, and judicial, and all offices, bodies and tribunals by and through which
they are executed, including courts of Indian offenses.” Lara, 2001 WL 1789403, at *2.
31
25 U.S.C. § 1302.
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any person, in a court of the United States, to test the legality of his detention by order of
an Indian tribe.”32
V.
CRIMINAL JURISDICTION IN INDIAN COUNTRY
Three sovereigns enjoy overlapping criminal prosecutorial authority in Indian
country.33 A “complex patchwork of federal, state and tribal law” determines which
sovereign enjoys jurisdiction over a particular alleged crime perpetrated on tribal land34
Factors pertinent to the analysis include the identity of both the defendant and alleged
victim, the nature of the crime itself, and the applicability of federal legislation or
treaties.35
The Legislative,36 Executive,37 and Judicial38 branches of the federal government
share authority to regulate Indian affairs.39 Accordingly, in Indian country the federal
32
25 U.S.C. § 1303.
Indian Crimes Act, 18 U.S.C. § 1151 (2004). Pursuant to 18 U.S.C. § 1151 “Indian country” is “all land
within the limits of any Indian reservation under the jurisdiction of the United States Government,” “all
dependent Indian communities within the borders of the United States,” and “all Indian allotments, the
Indian titles to which have not been extinguished.” Id.; see Robert T. Anderson, Criminal Jurisdiction,
Tribal Courts and Public Defenders, 13 KAN. J.L. & PUB. POL’Y 139, 140 n.4 (2003) (discussing the
fundamental tenets of federal Indian law and the right to counsel in criminal matters in federal and tribal
courts).
34
Negonsott v. Samuels, 507 U.S. 99, 102 (1993) (quoting Duro v. Reina, 495 U.S. 676, 680 n.1 (1990)).
See Sandra Day O’Connor, Lessons Learned from the Third Sovereign: Indian Tribal Courts (June 4,
1996), in 33 TULSA L. REV. 1 (1997) (“Today, in the United States, we have three types of sovereign
entities—the Federal government, the States, and the Indian tribes.”); Mathew L.M. Fletcher,
Sawnagezewag: “The Indian Problem” and the Lost Art of Survival, 28 AM. INDIAN L. REV. 35, 37 (2003)
(“Federal Indian Law is a complex body of law growing more multifarious each day . . . [there are] three
levels of sovereignty in the United States – federal, state and tribal.”). See generally, Robert N. Clinton,
Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 ARIZ. L. REV. 503
(1976).
35
See, e.g, States v. Wheeler, 435 U.S. 313, 332 (1978) (tribes have power to prosecute members for
violating trial law); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978) (tribes lack power to
prosecute non-Indians).
36
U.S CONST. art. I, § 8, cl. 3. The Indian Commerce Clause states “The Congress shall have Power . . .
[t]o regulate Commerce with . . . the Indian Tribes.” Id.
37
U.S. CONST. art. II, § 2, cl. 2. The Constitution provides that the President “shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present
concur . . . ” Id. The use of the treaty power with the Indian tribes ended in 1871, however. Act of March
3, 1871 ch. 120, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71); see also Alex Tallchief Skibine,
Reconciling federal and state power inside Indian reservations with the right of tribal self-government and
33
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government has jurisdiction to try “federal crimes of nationwide applicability” with equal
force.40
The United States prosecutes crimes specific to Indian country primarily
pursuant to the Indian Country Crimes Act41 and the Indian Major Crimes Act.42
the process of self-determination, 1995 UTAH L. REV. 1105, 1106 (1995). The House of Representatives
gave the Senate an ultimatum: the House refused to appropriate funds for existing treaties unless the Senate
agreed to cease their involvement with treaty-making with the Indian tribes. See Skibine, Reconciling
federal and state power inside Indian reservations with the right of tribal self-government and the process
of self-determination, 1995 UTAH L. REV. at 1106. Thereafter, Congress increasingly used its Indian
Commerce Clause power to regulate Indian affairs. See General Allotment Act of 1887 (Dawes Act), ch.
119, 24 Stat. 388 (1887); see also, Anderson, supra note 34, at 140 (“Major congressional acts were
adopted without even the veneer of consultation, much less agreement, that surrounded many of the
treaties.”).
38
U.S. Const. art III, § 2. The “judicial Power” of the United States extends, in pertinent part, “to all
Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made
. . . ” Id.
39
See, e.g., Oliphant, 435 U.S. at 197-212 (reviewing treaties, statutes and supreme court decisions related
to criminal jurisdiction in Indian country and stating “ . . . the commonly shared presumption of Congress,
the Executive Branch, and lower federal courts carries considerable weight.”) (citations omitted); Wheeler,
435 U.S. at 323-25 (discussing Executive, Legislative and Judicial branch control over the Indian tribes);
Duro, 495 U.S. at 689-91 (same). See also Anderson, supra note 34. Today, however, the treaty power has
been eclipsed by Congress’s commerce and plenary powers that are now considered the primary
mechanisms by which the federal government exercises control over the Indian tribes. Lara, 324 F.3d at
639 (citing Antoine v. Washington, 420 U.S. 194, 201-04 (1975)) (“Prior to 1903, the federal government
negotiated agreements with Indian tribes pursuant to its treaty power . . . but the combination of an 1871
statute and the development of the plenary power doctrine ended this process.”); see also 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 217, 278 (2003) [hereinafter Pommersheim, Constitutional Crisis] (“[d]espite
its lack of constitutional roots, [Congress’s plenary] power nevertheless proclaims extensive, even
limitless–power over tribes . . . ”).
Additionally, there are several other non-textual sources of congressional power to act in the sphere of
the Indian tribes: the trust doctrine and the dependent relationship the tribes have with the federal
government. Stephens v. Cherokee Nation, 174 U.S. 445, 478 (1899) (trust doctrine); Morton v. Mancari,
417 U.S. 535, 551(1974) (guard-ward). The Supreme Court has recognized, however, that the Indian
Commerce Clause has displaced these non-Constitutional sources to a great extent. See, e.g., Alaska v.
Native Village of Venetie, 522 U.S. 520, 531 n.6 (1998). See also Lara, 324 F.3d at 640; Anderson, supra
note 34, at 140 n.6 (“Congress’s power over Indian affairs is rooted in the Indian Commerce Clause.”). See
generally Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW at 47-207 (Michie 1982).
40
Brief of the Petitioner at *3, United States v. Lara, 2003 WL 22811829 (Nov. 14, 2003) (No. 03-107).
See, e.g., discussion of 18 U.S.C. § 1153 infra at note 43 (affording federal criminal jurisdiction over
specified major felonies).
41
18 U.S.C. § 1152. The Indian Country Crimes Act (ICCA) states that violations of federal criminal law
applicable to bodies under the exclusive jurisdiction of the United States, are applicable in Indian country.
See id. Note that there are limited exceptions to this general rule. See id. Section 1152 provides in
relevant part:
This section shall not extend to offenses committed by one Indian against the person or property
of another Indian, nor to any Indian committing any offense in the Indian country who has been
punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive
jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
Id.; see Wheeler, 435 U.S. at 324 n.21 (“Despite the statute's [18 U.S.C. § 1152] broad language, it does not
apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction”).
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States exercise only limited criminal jurisdiction in Indian country.43 Federal law
commonly preempts state regulation in this sphere.44 It is long established, however, that
states do have jurisdiction over crimes committed on Indian land that do not involve
42
18 U.S.C. § 1153; see also Brief of the Petitioner at *3-*4, Lara, 2003 WL 22811829 (No. 03-107). In
pertinent part, the Indian Major Crimes Act provides:
Any Indian who commits against the person or property of another Indian or other person any of
the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under
chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon,
assault resulting in serious bodily injury . . . an assault against an individual who has not attained
the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the
Indian country, shall be subject to the same law and penalties as all other persons committing any
of the above offenses, within the exclusive jurisdiction of the United States.
18 U.S.C. § 1153(a).
43
Alaska v. Native Village of Venetie, 522 U.S. 520, 527 n.1 (1998) (citing South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 343 (1998)) (“Generally speaking, primary jurisdiction over land that is Indian
country rests with the Federal Government and the Indian tribe inhabiting it, and not with the States.”); cf.
18 U.S.C. § 1162 (states subject to § 1162 enjoy significant criminal jurisdiction in Indian Country).
Indeed, in the most famous decision of the Marshall Trilogy, three cases that established the foundation of
federal Indian law, Chief Justice Marshall made clear that the Indian tribes are governed by federal and
international law:
The Indian nations had always been considered as distinct, independent political communities,
retaining their original natural rights, as the undisputed possessors of the soil, from time
immemorial, with the single exception of that imposed by irresistible power, which excluded them
from intercourse with any other European potentate than the first discoverer of the coast of the
particular region claimed. . . . The whole intercourse between the United States and this nation, is,
by our constitution and laws, vested in the government of the United States.
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559-61 (1832). In Worcester v. Georgia, the Supreme Court
considered the legality of a Georgia law prohibiting non-Indians to reside on Cherokee lands absent a
permit from the state government. Id. at 521-22. The court held that “the laws of Georgia can have no
force, and . . . the citizens of Georgia have no right to enter [Cherokee territory], but with the assent of the
Cherokees themselves, or in conformity with treaties, and with the acts of congress.” Id. at 520. Justice
Marshall’s “hard and fast rule precluding state jurisdiction within Indian country” was a high-water mark.
Anderson, supra note 34, at 140 (citing McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 173
(1973)). Indeed, in the wake of the Worcester decision President Jackson is said to have stated: "John
Marshall has made his decision; now let him enforce it." See Pommersheim, Constitutional Crisis, supra
note 40, at 276 (“While others consider the statement apocryphal, there is no doubt that President Jackson
supported Georgia's claimed sovereignty over Cherokee land. The constitutional imbroglio was only
averted when the impending nullification crisis convinced President Jackson that such a constitutional crisis
was not in the national interest.”). Notably, however, there was nothing for the Supreme Court to “enforce”
at the time of Jackson’s comment following Worcester as the Marshall court had found the Georgia law
invalid. See Worcester, 31 U.S. (6 Pet.) at 520. In any case, subsequent Supreme Court decisions and
statutes have recognized some state control in Indian territory. Anderson, supra note 34, at 140 (citing
McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 173 (1973)).
44
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1982) (“State jurisdiction is preempted by
the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in
federal law, unless the State interests at stake are sufficient to justify the assertion of State authority.”).
See, e.g., Antoine v. Washington, 420 U.S. 194 (1975) (fish and game laws); Duro, 495 U.S. at 700, n.1
(Brennan, J., dissenting) (citing Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134,
161 (1980)) (“We have not allowed States to regulate activity on a reservation that interferes with
principles of tribal self-government.”). See also U.S. CONST. art. VI.
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Indians.45 Additionally, states enjoy prosecutorial authority where Congress expressly
authorizes concurrent jurisdiction.46
Indian tribes’ criminal jurisdiction is comprised of two types of power, each
derived from distinct sovereigns: power retained by the tribes in their sovereign capacity
and federally delegated authority.47 Together, the Supreme Court and Congress dictate
the scope of the Tribes’ inherent powers and control when the tribes act pursuant to an
45
See United States v. McBratney, 104 U.S. 621 (1882) (in admitting Colorado to the union, federal
government failed to reserve exclusive jurisdiction over crimes committed by and against non-Indians).
Accord Wheeler, 435 U.S. at 324 n.21. Generally, “absent governing Acts of Congress” determining
whether a state enjoys jurisdiction in a given matter has turned on “whether the state action infringed on the
right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217,
220 (1959) (civil action).
46
See, e.g., 18 U.S.C. § 1162 (2004). Section 1162 provides in applicable part:
Each of the States or Territories listed in the following table shall have jurisdiction over offenses
committed by or against Indians in the areas of Indian country listed opposite the name of the
State or Territory to the same extent that such State or Territory has jurisdiction over offenses
committed elsewhere within the State or Territory, and the criminal laws of such State or Territory
shall have the same force and effect within such Indian country as they have elsewhere within the
State or Territory.
18 U.S.C. § 1162(a) (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin appear in the §
1162(a) table). Section 1162 was first enacted as Public Law 280. Washington v. Yakima Indian Nation,
439 U.S. 463, 471-72 (1979). Public Law 280 “was the first federal jurisdictional statute of general
applicability to Indian reservation lands . . . to five States it effected an immediate cession of criminal and
civil jurisdiction over Indian country, with an express exception for the reservations of three tribes.” Id.
See generally, Anderson, supra note 34, at 143.
47
Duro, 495 U.S. at 680 n.1, 684 (treating as distinct inherent tribal sovereign power and federal delegation
of authority) (“As in Oliphant, the tribal officials do not claim jurisdiction under an affirmative
congressional authorization or treaty provision . . . [t]he question we must answer is whether the
sovereignty retained by the tribes in their dependent status within our scheme of government includes the
power of criminal jurisdiction over nonmembers.”) (emphasis added). See also Wheeler, 435 U.S. at 328;
Oliphant, 435 U.S. at 195-96. The Oliphant court did not intimate that an “authorization” was distinct from
a “delegation” of federal power. See Oliphant, 435 U.S. at 195-96. Notably, however the distinction was
not at issue in Oliphant. In fact, it is not clear that the Supreme Court has ever addressed this distinction.
See L. Scott Gould, The Congressional Response to Duro v. Reina: Compromising Sovereignty and the
Constitution, 28 U.C. DAVIS. L. REV. 53, 62 (1994) [hereinafter The Congressional Response to Duro v.
Reina] (analyzing Duro, the post-Duro legislation and the inherent sovereignty doctrine but never
identifying a case that had previously addressed the distinction between congressional “authorization” and
federal delegation); cf. Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855)
(mem.) (articulating the negative commerce clause consent doctrine in upholding congressional action that
modified prospective injunctive relief previously issued by Article III court pursuant to the dormant
commerce clause; holding required that the Article III proceeding be reopened subsequently).
- 10 -
“affirmative congressional authorization or treaty provision.”48 The federal government
has delegated power to tribal courts in a number of instances.49
In the context of inherent sovereign authority, tribes do not have criminal
jurisdiction to prosecute persons who are not registered members of an Indian tribe.50
This rule holds true even if a non-Indian is living on a reservation.51 In contrast, Indian
tribes do have the independent sovereign power to prosecute tribal members for
violations of tribal law.52 Whether Indian tribes have sovereign authority to prosecute
non-member Indians is unsettled, and is the issue presented here. 53
VI.
THE NATURE OF TRIBAL SOVEREIGNTY
The unique nature of the Indian tribes’ sovereignty “pose[s] special concerns in
the context of double jeopardy.”54 Moreover, given that “Indian sovereignty ‘is the
backdrop against which the applicable . . . federal statutes must be read,’” the nature of
the tribes’ sovereignty is at the heart of this matter.55
48
Oliphant, 435 U.S. at 195.
For example, Congress has delegated authority to the Indian tribes under the “Indian liquor laws, 18
U.S.C. 1152 (2004); the Clean Air Act, 42 U.S.C. §§ 7401-7642 (2003); the Clean Water Act, 33 U.S.C. §§
1251-1377 (2003).” Anderson, supra note 34, at 141 n.23 (citations omitted).
50
Oliphant, 435 U.S. at 208-10 (“Indians do not have criminal jurisdiction over non-Indians absent
affirmative delegation of such power by Congress.”).
51
See id. at 195 (petitioners were both non-Indian residents of Port Madison Reservation).
52
See Wheeler, 435 U.S. at 211-12. The Supreme Court affirmed the divestiture of tribes’ sovereign
authority over “external relations” in Montana v. United States. Montana v. United States, 450 U.S. 544,
564 (1981). In Montana, the court held that tribes inherent sovereign power did not allow for it to regulate
nonmembers hunting and fishing on land within the boundaries of the reservation but owned by a
nonmember. Id. at 564-65. The court held that “the dependent status of Indian tribes within our territorial
jurisdiction is necessarily inconsistent with their freedom independently to determine their external
relations.” Id. at 564 (quoting United States v. Wheeler, 435 U.S. 313, 326 (1978)) (emphasis in original).
53
Compare Duro v. Reina, 495 U.S. 676, with 25 U.S.C. § 1301(2).
54
United States v. Enas, 255 F.3d 662, 666 (9th Cir. 2001) (en banc), cert. denied, 534 U.S. 1115 (2002).
55
Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 701 (1st Cir. 1994) (quoting McClanahan v.
State Tax Comm’n, 411 U.S. 164, 172 (1973)); see also discussion infra Part VI.D.1 (interpreting the postDuro ICRA amendments to the ICRA).
49
- 11 -
As noted supra, Part V., the Indian tribes derive their criminal jurisdiction over
crimes committed on tribal lands from two distinct sources: retained tribal sovereignty56
and federally delegated power.57 The distinction between inherent sovereign power and
delegated power is important in the context of the Double Jeopardy Clause.58 Indeed, this
case “turns on whether the Spirit Lake Nation exercised sovereign authority emanating
from a sovereign source distinct from that of the overriding federal sovereign.”59
The Indian tribes were full sovereign entities prior to the European’s arrival.60
However, with the forced incorporation of tribal lands within the domain of the United
States and the tribes’ “acceptance” of the protection of the United States, the tribes were
56
The Supreme Court has explained that retained tribal sovereignty is that authority wielded by tribes “not
on the basis of congressional statute or treaty provision but by reason of their retained national
sovereignty.” Oliphant, 435 U.S. at 196.
57
Enas, 255 F.3d at 666-67 (“The Supreme Court has been consistent in maintaining the distinction
between inherent and delegated power, and in holding that these two forms of power have different
consequences for double jeopardy.”). See also Duro, 495 U.S. at 680 n.1, 684 (treating as distinct inherent
tribal sovereign power and federal delegation of authority); Wheeler, 435 U.S. at 322 (“[T]he controlling
issue in this case is the source of this power to punish tribal offenders: Is it part of inherent tribal
sovereignty, or an aspect of the sovereignty of the Federal Government which as been delegated by
Congress?”); Oliphant, 435 U.S. at 196 (“[T]hese tribes claim authority to try non-Indians not on the basis
of congressional statute or treaty provision but by reason of their retained national sovereignty”). In
Oliphant, the Supreme Court acknowledged that it could “find no specific discussion” of the distinction
between delegated and inherent sovereign criminal authority over non-member Indians in prior Supreme
Court jurisprudence. Oliphant, 435 U.S. at 197. The Court explained that this was largely due to the fact
that the “effort by Indian tribal courts to exercise criminal jurisdiction over non-Indians . . . is a relatively
new phenomenon.” Id. (noting that formal tribal court systems were not widespread until the mid-20th
Century). Notably, other federal courts have recognized that a double jeopardy violation occurs where a
tribe exercising delegated authority of the federal sovereign and thereafter, the federal government
prosecute a defendant for the same crime. See Archambault, 174 F. Supp. 2d 1009 (D.S.D. 2001)
(“Archambault, like Weaselhead, claims double jeopardy, the claim being that the tribe had no inherent
authority to prosecute him and that the only basis for such authority comes from a federal statute.”)
(holding that the ICRA Amendments did not delegate federal power to the tribes but rather, altered “the
federal common law [created by the Duro court],” and thus, rejecting defendant’s double jeopardy claim);
cf. People of Puerto Rico v. Shell, 302 U.S. 253, 261-62, 264 (1937) (recognizing that prosecution of a
defendant in Puerto Rican court and thereafter in federal court for a crime with the same elements would
violate the Double Jeopardy Clause because the territorial court exercised jurisdiction pursuant to a federal
delegation of power: “The aim of the Foraker Act and the Organic Act was to give Puerto Rico full power
of local self-determination with an autonomy similar to that of the states and incorporated territories.”).
58
Enas, 255 F.3d at 667.
59
Lara, 324 F.3d at 637.
60
Wheeler, 435 U.S. at 322-23.
- 12 -
stripped of their full sovereignty.61 Yet, the text of the Constitution “is almost silent in
regard to the relations of the government which was established by it to the numerous
tribes of Indians within its borders.”62 Absent guidance on even the most basic issues of
the tribes’ relationship to the federal government and the states, three cases penned by
Chief Justice John Marshall, known as the Marshall trilogy, are credited with providing
the foundation for Indian law.63
61
Id. at 323; see also United States v. Kagama, 118 U.S. 375, 382 (1886) (“[Indian tribes] are spoken of as
‘wards of the nation;’ ‘pupils;’ as local dependent communities).
62
Kagama, 118 U.S. at 378. The Indian Commerce Clause “clearly recognizes some kind of significant
and enduring sovereignty in Indian tribes as it is specifically identified in a series that includes the states
and foreign nations.” Pommersheim, Constitutional Crisis, supra note 40, at 273. Accord Robert Clinton,
The Dormant Indian Commerce Clause, 27 CONN. L. REV. 1055, 1156 (1995) (analyzing the Framers’
intent during the constitutional convention and finding that the “simple reference to commerce with the
Indians . . . [was] obviously viewed as synonymous with regulating the Indian affairs or ‘affairs with the
Indians.’”). Indeed, at least one commentator opines that the Commerce Clause “was adopted to
acknowledge the sovereignty of tribes, to allocate legislative power over them, and to impose
commensurate limits on the states.” See also David H. Getches, Beyond Indian Law: The Rehnquist
Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 MINN. L. REV. 267, 269
(2001) [hereinafter Getches, Beyond Indian Law] (“The Framers intended to clarify a pre-constitutional
relationship and to curtail arguments that state legislation would infringe state legislative rights”) (citing
THE FEDERALIST NO. 42 (James Madison) (Modern Library ed., 1937). In any case, it is clear that the
scope of tribes’ sovereignty is not addressed at all by the text of the constitution. See, e.g., Pommersheim,
Constitutional Crisis, supra note 40, at 273 (“[n]evertheless, the clause does not spell out the scope of
authority for any of these entities as constitutional subjects . . . ”).
Article II, Section 2, Clause 2 makes clear that the Framers considered the Indian tribes sovereigns but
failed to articulate the scope of their sovereignty. See U.S. CONST. art. II, § 2, cl. 2. “[T]reaties clearly
recognize tribal sovereignty and are a marker of constitutional status,” and it is clear the treaty power
applies to the Indian tribes. Pommersheim, Constitutional Crisis, supra note 40, at 273 n.9. Treaties,
however, are subject to “unilateral abrogation under the plenary power doctrine.” Id. (citing FRANK
POMMERSHEIM, BRAID OF FEATHERS 38-41 (1995)). More generally, statutes supercede treaties. Moser v.
United States, 341 U.S. 41, 45 (1951) (“[A] treaty may be modified by a substantive act of Congress.”).
Accord Clark v. Allen, 331 U.S. 503, 508-09 (1947) (“President and Senate may denounce the treaty, and
thus terminate its life. Congress may enact an inconsistent rule, which will control the action of the
courts.”).
63
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1
(1831); Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823). See Duro, 495 U.S. at 699-702 (Brennan, J.,
dissenting) (attributing major tenets of Indian tribes’ relation to the federal government and the states to the
Marshall trilogy (Worcester, Cherokee Nation, and M’Intosh)); Getches, Beyond Indian Law, supra note
63, at 269 (“The fundamental tenets of Indian Law are built on early nineteenth century precedent . . . the
“Marshall trilogy,” form the foundation of Indian law.”).
It should be noted that the Supreme Court first considered Indian tribes’ nature in Fletcher v. Peck,
thirteen years prior to Johnson v. M’Intosh, the first case in the Marshall trilogy. Fletcher v. Peck, 10 U.S.
(Cranch.) 87, 142-43 (1810) (“The majority of this court is of opinion that the nature of the Indian title,
which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be
absolutely repugnant to seisin in fee on the part of the state.”). In his concurring opinion, Justice Johns
noted that the “‘limitation upon [Indian tribes’] sovereignty amounts to the right of governing every person
- 13 -
In M’Intosh, Justice Marshall relied on international law tenets in holding that the
“powers of Indians to give, and of private individuals to receive, a title” cannot “be
sustained in the Courts of the United States.”64 The Indian tribes’ “‘power to dispose of
the soil at their own will, to whomsoever they pleased,’ was inherently lost to the
overriding sovereignty of the United States.”65
Moreover, Justice Marshall stated that
“no other power could interpose between [the federal government and the Indian
tribes].”66 Indians “were, in no instance, entirely disregarded . . . but were necessarily
impaired” by nature of their dependent status.67 Accordingly, the Court held that the
United States enjoyed ultimate title to land held by the tribes prior to colonization while
the Indians had the right to use and inhabit those lands.68
The Supreme Court again addressed the status of the Indian tribes in Cherokee
Nation v. Georgia.69 In that matter, the Cherokee Nation sought injunctive relief to
proscribe Georgia from enacting and enforcing laws that applied to tribal lands.70 The
Marshall court held that the Indian tribe’s petition must be dismissed for lack of
within their limits except themselves.’” Oliphant, 435 U.S. at 209 (quoting Fletcher v. Peck, 10 U.S.
(Cranch.) 87, 147 (1810) (emphasis added)).
64
M’Intosh, 21 U.S. (8 Wheat.) at 572, 605.
65
Oliphant, 435 U.S. at 209 (quoting Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)). Justice
Marshall reasoned that pursuant to the “doctrine of discovery,” “discovery [of land] gave title to the
government by whose subjects, or by whose authority, it was made.” Id. at 573; see United States v. Alcea
Band of Tillamooks, 67 S. Ct. 167, 170 (1946) (“It has long been held that by virtue of discovery the title to
lands occupied by Indian tribes vested in the sovereign”) (citing Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543,
574-75 (1823)). Justice Marshall found that history demonstrated that all of the European nations that had
claimed territory in the Americas adhered to this principle. See M’Intosh, 21 U.S. at 574-99 (Spain, France,
States of Holland, England). Notably, Marshall recognized that in the absence of a challenge from the
federal government “Indian deeds would be valid.” Id. at 604.
66
M’Intosh, 21 U.S. at 573.
67
Id.
68
Oneida County, NY v. Oneida Indian Nation of New York State, 105 S. Ct. 1245, 1251 (1985) (citing
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 574-75 (1823)).
69
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
70
Id.
- 14 -
jurisdiction under Article III, Section 2.71
The tribe argued that there was federal
jurisdiction pursuant to Article III, Section 2 because the Indian tribes were either states
or, alternatively, foreign nations.72 In rejecting both claims due to the fact that the Indian
tribes were “domestic dependent nations,” Chief Justice Marshall noted that the
relationship between the tribes and federal government was unique.73
In Worcester v. Georgia, the Supreme Court invalidated a Georgia law
proscribing “white persons” from residing on tribal lands absent a state permit.74 After
analyzing applicable United States treaties and laws, Marshall concluded that the federal
government understood “Indian territory as completely separate from the states” and also
that “all intercourse with them shall be carried on exclusively by the government of the
union.”75 Relying on the tenets of the “law of nations,” the Chief Justice Marshall stated
that “a weaker power does not surrender its independence—its right to self government,
by associating with a stronger [power], and taking its protection.”76 The court, thus
concluded that Georgia law “can have no force [in Indian territory] . . . which the citizens
71
Id. at 15, 19. Article III, Section 2 provides that the “judicial Power shall extend” to a series of “Cases
and Controversies” which includes those “between two or more States” and “between a State . . . and
foreign States.” U.S. CONST., art. III, § 2. There is no mention of the Indian tribes in Article III, Section 2.
See id.
72
Cherokee Nation, 30 U.S. (5 Pet.) at 16. The court’s inquiry into whether the tribes constituted “foreign
nations” was in the context of Article III of the Constitution, as well as the Indian Commerce Clause. See
id. at 15-19. Finding that the Indian tribes could not be considered foreign nations, the court stated that the
tribal lands located within the borders of the United States, the tribes were prohibited from having
“intercourse with foreign nations” much like the states, and the tribes had “acknowledged themselves in
their treaties to be under the protection of the United States . . . ” Id. at 17.
73
Id. at 16-17 (“The condition of the Indians in relation to the United states is perhaps unlike that of any
other . . . marked by peculiar and cardinal distinctions which exist no where else.”).
74
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 539 (1832).
75
Id. at 557. More specifically, “congress assumed the management of Indian affairs; first in the name of
these United Colonies; and, afterwards, in the name of the United States.” Id.
76
Id. at 520.
- 15 -
of Georgia have no right to enter, but with the assent of the Cherokees themselves” or by
federal treaty or act.77
A half-century later, the Court affirmed the tenets of the Marshall trilogy in
United States v. Kagama.78 In Kagama, the court upheld the constitutionality of the
Indian Major Crimes Act,79 an act granting federal jurisdiction in certain crimes
committed on tribal land by Indians.80 Resting its holding on the basis of history, custom
and the “dependent” status of the Indian tribes, the Supreme Court recognized that the
tribes are subject to the ultimate control of the federal government.81 At the same time,
the Kagama court stated the Indian tribes continued to be “a separate people, with the
powers of regulating their internal and social relations.”82
77
Id. at 561. The Worcester decision is considered to be the high-water mark for constraining state
jurisdiction in Indian country. See Pommersheim, Constitutional Crisis, supra note 40, at 276.
78
See United States v. Kagama, 118 U.S. 375, 381-82 (1886) (“[The Indian tribes have always been]
regarded as having a semi-independent position when they preserved their tribal relations; not as states, not
as nations, not possessed of the full attributes of sovereignty, but as a separate people, with the power of
regulating their internal and social relations, and thus far not brought under the laws of the Union or of the
state within whose limits they resided.”) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832);
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)).
79
18 U.S.C. § 1153.
80
Congress passed the Indian Major Crimes Act in reaction to the Supreme Court’s decision in Ex parte
Crow Dog, 109 U.S. 556 (1883). See Duro, 495 U.S. at 702 (Brennan, J., dissenting); Oliphant, 435 U.S.
at 210. In Ex parte Crow Dog, the Court considered the federal government’s criminal jurisdiction to
prosecute an Indian for allegedly perpetrating a crime on tribal land. Ex parte Crow Dog, 109 U.S. 556,
557-58. The Court held that the United States enjoyed no such authority in the absence of “clear
expression” of congressional intent.” Id. at 572 (failing to find clear congressional intent).
81
Kagama, 118 U.S. at 385 (“[The United States] alone can enforce its laws on all the tribes.”). Federal
statutes and treaties between the tribes and the United States provided for the formal divestiture sovereign
powers and affirmed the supremacy of the United States. Wheeler, 435 U.S. at 323; Oliphant, 435 U.S. at
199, n.8 (finding that Indian treaties’ consistently stipulated that, absent an affirmative congressional
authorization, the tribes could not prosecute non-Indians). See also Oliphant, 435 U.S. at 201-06 (finding
that throughout history congress has presumed “that tribal courts are without inherent jurisdiction to try
non-Indians).
82
Kagama, 118 U.S. at 381-82 (acknowledging that the Constitution was silent on the issue). Accord
Wheeler, 435 U.S. at 322 (quoting United States v. Kagama, 118 U.S. 375, 381-82 (1886); Cherokee
Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831)).
- 16 -
Today, Indian tribes are considered “quasi-sovereign entities.”83 In recent years,
the Supreme Court has both recognized Congress’s authority to permit Indian tribes to
exercise sovereign powers and explored the scope and nature of the tribes’ sovereign
authority.84
In United States v. Mazurie, the Supreme Court held that the plenary power
enables Congress to authorize Indian tribes to exercise inherent sovereign powers
otherwise unavailable to the tribes on account of their dependent status.85 The Wind
River Reservation tribal court criminally prosecuted non-Indian respondents for selling
alcoholic beverages at their tavern without a tribal license as mandated by tribal
ordinance.86 The tribe had jurisdiction pursuant to 18 U.S.C. § 1161.87 Section 1161
permitted tribes to regulate the introduction of alcohol to Indian country, even to non-
83
Oliphant, 435 U.S. at 196 (citing Morton v. Mancari, 417 U.S. 535, 554 (1974)).
Enas, 255 F.3d at 668. Compare Oliphant, 435 U.S. 191 (Indian tribes do not have sovereign authority
to prosecute non-Indians, including non-Indians residing on Tribal lands), with Wheeler, 435 U.S. 313
(Indian tribes have sovereign authority to prosecute member Indians), with Duro, 495 U.S. 676 (Indian
tribes do not have sovereign authority to prosecute non-member Indians). But see 25 U.S.C. § 1301(2), (4)
(2004) (“‘Powers of self-government’ means . . . the inherent power of Indian tribes, hereby recognized and
affirmed, to exercise criminal jurisdiction over all Indians.”).
85
United States v. Mazurie, 419 U.S. 544 (1975).
86
Id.
87
Id. at 548. Respondents, non-Indian owners of a tavern, were prosecuted by the federal government for
operating without a state or tribal liquor license as required by 18 U.S.C. § 1154. Id. at 545-46. Section
1154(a) makes it a misdemeanor crime for any individual to “introduce or attempt to introduce” any
alcoholic beverage in dIndian country. 18 U.S.C. § 1154(a) (“whoever introduces or attempts to introduce
any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of
any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or
imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than
$2,000 or imprisoned not more than five years, or both.”). Respondents maintained that their tavern fell
within the exception to § 1154, exempting lands held in fee simple in “non-Indian communities” and that,
alternatively, § 1154 was void on vagueness grounds. Mazurie, 419 U.S. at 548-49; see 18 U.S.C. §
1154(c) (“The term 'Indian country' as used in this section does not include fee-patented lands in nonIndian communities or rights-of-way through Indian reservations, and this section does not apply to such
lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.”).
Reversing the Court of Appeals for the Eighth Circuit, the Supreme Court affirmed the constitutionality of
§ 1154, and therefore, rejected respondents’ vagueness challenge to § 1154. See Mazurie, 419 U.S. at 55053, 559.
84
- 17 -
Indians on non-Indian land situated within Indian country.88
Reversing the Eighth
Circuit, the Supreme Court held that § 1161 is a permissible delegation of congressional
legislative power.89
The Mazurie court found that “independent tribal authority is quite sufficient to
protect Congress’s decision to vest in tribal councils this portion of [Congress’s] own
authority” pursuant to the Indian Commerce Clause.90 Indeed, the court noted, “Indian
tribes are unique aggregations possessing attributes of sovereignty over both their
members and their territory . . . . [They] are a good deal more than ‘private, voluntary
organizations.’”91 The Mazurie decision did not clearly distinguish between inherent and
federally delegated authority; the court simply referenced federally delegated power.92
Notably, however, Mazurie did not hinge on the distinction between inherent and
federally delegated power.93
88
See id. at 553-59. Section 1161 mandates that all sales of alcohol in Indian country comply with relevant
tribal ordinances. See id. at 545-46. The statute provides:
The provisions of sections 1154, 1156, 3113, 3488, and 3669 of this title, shall not apply within
any area that is not Indian country, nor to any act or transaction within any area of Indian country
provided such act or transaction is in conformity both with the laws of the State in which such act
or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such
area of Indian country, certified by the Secretary of the Interior, and published in the Federal
Register.
18 U.S.C. § 1161 (2004). Note that the text of the 1974 version of § 1161 quoted by Mazurie is identical to
the current statute save that § 1161 now references § 3669, instead of § 3618. Compare 18 U.S.C. § 1161,
with Mazurie, 419 U.S. at 547, n. 4 (quoting 18 U.S.C. § 1161 (1974)). The Court reasoned that § 1161
was valid given the tribes’ inherent authority to regulate “matters that affect the internal and social relations
of tribal life.” Mazurie, 419 U.S. at 556-57 (Congress’s legislative power is less inhibited where “the entity
exercising the delegated authority itself possesses independent authority over the subject matter.”) (citing
United States v. Curtis-Wright Export Corp., 299 U.S. 304 (1936)). The Court found that “[c]learly the
distribution and use of intoxicants is just such a matter.” Id.
89
Mazurie, 419 U.S. at 548.
90
Id. at 557. Notably, however, the Supreme Court explicitly declined to base its holding on whether the
“independent [tribal] authority is itself sufficient for the tribes to impose” their own liquor regulations. Id.
at 557; see also Rice v. Rehner, 463 U.S. 713 (1983) (recognizing the nature of the Mazurie holding and
explaining that liquor regulation was one of the most wide-ranging areas of federal oversight of the tribes).
91
Mazurie, 419 U.S. at 557. Accord Cherokee Nation, 5 U.S. (Pet.) at 16-17.
92
See Mazurie, 419 U.S. 544.
93
See id. at 558-59 (holding that § 1161 was a constitutional delegation of legislative power).
- 18 -
In Oliphant v. Suquamish Indian Tribe, the Supreme Court held that the Indian
tribes’ inherent sovereignty does not extend to trying and punishing non-Indians.
94
Respondent, a non-Indian, was prosecuted for violating tribal law by the Suquamish
Indian Provisional Court of the Port Madison Reservation and, thereafter, filed a writ of
habeas corpus in the United States District Court for the District of Western
Washington.95 Respondent contended that the tribal court lacked criminal jurisdiction
over non-Indians.96
While finding Indian tribes’ assertion of criminal jurisdiction over non-member
Indians to be a “relatively new phenomenon,”97 the court found applicable treaties,
attorney general opinions, history, statutes and Supreme Court case law persuasive.
98
The Oliphant court found that these sources indicate a “commonly shared presumption of
Congress, the Executive Branch, and lower federal courts that tribal courts do not have
the power to try non-Indians.”99
Turning to the Port Madison Reservation tribal court, the Court stated that the
applicable treaties and statutes must be interpreted in “light of the common notions of the
day and the assumptions of those who drafted them.”100
94
Thus, the Oliphant court
See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978).
See id. at 193-94. Respondent was charged with the assault of a tribal law enforcement officer and with
resisting arrest. See id. at 194.
96
Id. at 194.
97
Until the mid-20th Century, few Indian tribes “maintained any semblance of a formal court system.” Id.
at 197.
98
E.g., Treaty with the Choctaw Indian Tribe, Art. 4, 7, Stat. 333 (treat); 2 Op.Atty.Gen. 693 (1983)
(opinion of the United States attorney general); Seventh Annual Address of President George Washington,
1 Messages and Papers of the Presidents, 1789-1897, at 181, 185 (J. Richardson, ed., 1897) (historical
source); Trade and Intercourse Act of 1790, 3 Stat. 383 (current version at 18 U.S.C. § 1152) (statute). In
re Mayfield, 141 U.S. 107, 115-16 (1891) (Supreme Court precedent). See Oliphant, 435 U.S. at 197-211.
99
Id. at 206.
100
Id. at 206 (“These instruments, which beyond their actual text form the backdrop for the intricate web of
judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common
notions of the day and the assumptions of those who drafted them.”).
95
- 19 -
reasoned, given the Suquamish tribe’s dependence on the United States in signing the
applicable treaty in 1855 “the Suquamish were in all probability recognizing that the
United States would arrest and try non-Indian intruders who came within their
Reservation.”101 Interpreted in conjunction § 1152 of the Indian Country Crimes Act,102
the Supreme Court found that the treaty “implies that the Suquamish are to promptly
deliver up to any non-Indian offender, rather than try and punish him themselves.”103
Moreover, the Oliphant court found, the tribes are “prohibited from exercising both those
powers . . . that are expressly terminated by Congress and those powers ‘inconsistent with
their status.’”104 Thus, the tribes are subject to the paramount authority of the United
States.105
Taken together, the Court concluded, these precedents indicate that tribes may not
prosecute non-Indians absent a congressional delegation.106
The Oliphant court
distinguished between affirmatively delegated federal power and inherent sovereign
power.107 However, the court did not have occasion to consider whether Congress may
101
Id. at 207-08 (citing Treaty of Point Elliot, 12 Stat. 927 (1855); Worcester v. Georgia, 6 U.S. (Pet.) 515,
551-52, 554-55 (1832)).
102
See discussion of § 1152 and the Indian Country Crimes Act infra note 42.
103
Oliphant, 435 U.S. at 208.
104
Id. at 208 (emphasis in original) (quoting Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976)).
105
See id. at 209 (“Upon incorporation into the United States, the Indian tribes thereby come under the
territorial sovereignty of the United States and their exercise of separate power is constrained so as not to
conflict with the interests of this overriding sovereignty.”). Accord M’Intosh, 8 U.S. (Wheat.) at 574
(“[T]heir rights to complete sovereignty, as independent nations, [are] necessarily diminished.”).
106
Oliphant, 435 U.S. at 210, 212.
107
See, e.g., id. at 195-96 ( “Respondents do not contend that their exercise of criminal jurisdiction over
non-Indians stems from affirmative congressional authorization of treaty provision. Instead, respondents
urge that such jurisdiction flows automatically from the ‘Tribe’s retained inherent powers of government
over the Port Madison Indian Reservation.’”) (emphasis added).
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reinstate the tribes’ inherent power by statute without such action constituting a federal
delegation of power.108
In United States v. Wheeler, the Supreme Court held that Indian tribes do have
inherent sovereign authority over member Indians.109 Respondent was a member of the
Navajo Tribe.110 The case concerned his claim that consecutive prosecutions by the
Navajo Tribe court and the federal government for the same alleged offense violated his
double jeopardy rights.111
First, the court clarified that the applicability of the dual sovereignty doctrine is
not contingent upon the extent to which one sovereign controls another.112 Instead,
“whether the two prosecutions at issue draw their authority from the “same ultimate
source of power” is dispositive.113
Second, the court considered whether the source of power tribal courts exercise
when punishing tribal offenders is “a part of inherent tribal sovereignty, or an aspect of
108
See, e.g., id. ( “Respondents do not contend that their exercise of criminal jurisdiction over non-Indians
stems from affirmative congressional authorization of treaty provision. Instead, respondents urge that such
jurisdiction flows automatically from the ‘Tribe’s retained inherent powers of government over the Port
Madison Indian Reservation.’”). The court again distinguished between inherent and federally delegated
powers when it stated:
[A]n examination of our earlier precedents satisfies us that, even ignoring treaty provisions and
congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative
delegation of such power by Congress. Indian tribes do retain elements of "quasi-sovereign"
authority after ceding their lands to the United States and announcing their dependence on the
Federal Government.
Id. at 207 (citing Cherokee Nation v. Georgia, 5 U.S. (Pet.) 1, 15 (1831) (not distinguishing between
‘delegation’ and ‘affirmative authorization’).
109
United States v. Wheeler, 435 U.S. 313, 328 (1978).
110
Id. at 315.
111
Id. at 314-15. Respondent was tried for disorderly conduct and contributing to the delinquency of a
minor in the tribal court. Id. at 315. The respondent was subsequently indicted with statutory rape by a
grand jury in the United States District Court for the District of Arizona. See id.
112
Id. at 320-21.
113
Id. at 319-20. The court declined to limit the dual sovereignty doctrine to consecutive state and federal
prosecutions. See id. at 330-32. Excluding successive tribal and federal prosecutions from the doctrine
would frustrate “important federal interests in the prosecution of major offenses on Indian reservations.”
Id. at 331 (noting that tribal court sentences are quite minor).
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the sovereignty of the Federal Government which has been delegated to the tribes by
Congress[.]”114 The Court rejected the notion that “tribes are merely ‘arms of the federal
government.’”115 Although tribal sovereignty “is subject to complete defeasance [by
Congress],” Indian tribes’ retained sovereignty includes “those aspects of sovereignty not
withdrawn by treaty or statute, or by implication as a necessary result of their dependent
status.”116
The Wheeler court found that it was clear from history, treaties and statutes that
the Navajo Tribe never relinquished its sovereign inherent authority to criminally
prosecute its members.117 The two treaties executed between the Navajo Tribe and the
federal government implicitly reflect the recognized presumption that implicit in treaty
terms “was the understanding that the internal affairs of the Indians remained exclusively
within the jurisdiction of whatever tribal government existed.”118 In enacting statutes
granting federal jurisdiction over crimes in Indian country, Congress consistently
acknowledged and preserved the tribes’ inherent sovereign authority over members.119
Moreover, the Wheeler court noted, tribal prosecution of members is self-governance
function and is therefore distinguishable from sovereign powers tribes were “implicit[ly]
114
Id. at 322 (emphasis added).
Id. at 319, 321 (quoting Colliflower v. Garland, 342 F.2d 369, 379 (9th Cir. 1965)).
116
Id. at 323 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).
117
See id. at 323-28.
118
Id. at 324 (quoting Williams v. Lee, 358 U.S. 217, 221-22 (1959)). The treaties executed between the
Navajo Tribe and the federal government were ratified in 1850 and 1868, respectively. Id. at 324 n.20
(citing Treaty with the Navajo Tribe, 9 Stat. 974 (1850); Treaty with the Navajo Tribe, 15 Stat. 667
(1868)).
119
See id. at 324-25. For example, the Wheeler court noted that in 1854 Congress amended the General
Crimes Act to except “‘who has been punished by the local law of the tribe’” from federal court
jurisdiction. Id. at 325 (citing Act of Mar. 27, 1854, § 3 10 Stat. 270) (current version at 18 U.S.C. § 1152).
See, e.g., Indian Trade and Intercourse Act of 1790, Act of 1790, § 5, 1 Stat. 138 (providing federal
jurisdiction over crimes perpetrated against Indians by “any citizen or inhabitant of the United States).
115
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divest[ed]” of due to their dependent status.120 Thus, the Navajo never relinquished
jurisdiction over member Indians and the “tribal exercise of that power today is therefore
the continued exercise of retained tribal sovereignty.”121
Third, the court distinguished between inherent and federally delegated power.122
The Wheeler court took pains to clarify that the treaties and statutes recognizing the
tribes’ inherent sovereign authority over prosecuting its members did not “create[]” this
authority.123 Congressional action in defining the scope of tribes’ self-governance “does
not mean that Congress is the source of that power.”124
Instead, the authority to
prosecute tribal members’ violations of tribal law was among the “primeval sovereign[]”
powers retained by the tribe.125 The Supreme Court further clarified that its emphasis on
the fact that the Navajo Tribe was never stripped of its inherent authority to prosecute
members, did not “mean to imply that tribe which was deprived of that right by statute or
treaty and then regained it by Act of Congress would necessarily be an arm of the Federal
120
See Wheeler, 435 U.S. at 326-27. The Supreme Court stated that the rights established to be within the
tribes’ inherent sovereign authority include the “right of internal self-government” which includes enacting
and enforcing laws prohibiting criminal conduct. Id. at 322 (citing United States v. Antelope, 430 U.S.
641, 643 n.2 (1970); Talton v. Mayes, 163 U.S. 376, 380 (1896)). Additionally, the Wheeler court
recognized the following rights to be within the province of the Indian tribes’ inherent authority:
establishing and controlling tribe membership, regulating tribal members’ domestic relations, and
regulating property inheritance laws. See id. at 322 n.18 (citations omitted).
121
Id. at 323-24.
122
See id. at 327-29.
123
Id. at 328.
124
Id.
125
Id. at 323-24. The court also found Talton v. Mayes, 163 U.S. 376 (1896), relevant. Wheeler, 435 U.S.
at 328-29. In Talton, defendant, a Cherokee Indian, was indicted by a federal grand jury with the murder of
a Cherokee Indian. Talton, 163 U.S. at 377. Defendant alleged that the tribal indictment was not valid
pursuant to the Fifth Amendment’s Grand Jury Clause. See id. The Talton court held that the Fifth
Amendment did not apply because in criminally prosecuting a member, the tribe acts in its own sovereign
capacity, distinct from that of the federal government. See id. at 382-84 (“[T]he existence of the right in
Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does
not render such local powers Federal powers arising from and created by the Constitution of the United
States.”). While it was a grand jury clause case, the Wheeler court found Talton provided a strong
foundation for its conclusion that: “[s]ince tribal and federal prosecutions are brought by separate
sovereigns, they are not ‘for the same offense,’ and the Double Jeopardy Clause thus does not bar one when
the other has occurred.” Id. at 329-30.
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Government.”126 The Court recognized that “[t]hat interesting question is not before us,
and we express no opinion thereon.”127 In short, the Wheeler court held that the dual
sovereignty doctrine applies to successive prosecutions of a member Indian by the
individual’s tribal court and the federal government.128
In Duro v. Reina, the Supreme Court considered the authority Indian tribes enjoy
over non-member Indians who are enrolled in another federally recognized tribe.129
Defendant, a member of the Torres-Martinez Band of the Cahuilla Mission Indian tribe,
resided on the Salt River Pima-Maricopa Indian Community Reservation.130 Charged by
the federal government with murder and aiding and abetting, defendant was arrested and
indicted.131 Later, however, the indictment was dismissed without prejudice at the behest
of the federal prosecutor.132
Thereafter, the Pima-Maricopa tribal court prosecuted
defendant for illegally firing a firearm.133 The tribal court denied Defendant’s motion to
dismiss for lack of jurisdiction.134
Defendant then filed a habeas corpus petition in the United States District Court
for the District Court of Arizona.135 Finding that the tribal prosecution of a nonmember
Indian violated the equal protection guarantee of the ICRA, the district court granted the
126
Id. at 328 n.28.
Id.
128
Id. at 332 (“Federal pre-emption of a tribe’s jurisdiction to punish its members for infractions of tribal
law would detract substantially from tribal self-government, just as federal pre-emption of state criminal
jurisdiction would trench upon important state interests.”).
129
Duro v. Reina, 495 U.S. 676 (1990).
130
Id. at 679.
131
Id. at 680.
132
Id. at 680.
133
See id. at 681. The tribal court’s criminal jurisdiction, regulated by federal statute, was limited to
misdemeanor sentences. 25 U.S.C. § 1302(7) (1982 ed.). At the time the Duro defendant was prosecuted
by the Pima-Maricopa tribe, tribes’ jurisdiction for criminal penalties could not exceed $500 and sixmonths jail time. Id.; see also Duro, 495 U.S. at 681, 682 n. 2.
134
Duro, 495 U.S. at 681-82.
135
Id. at 681-82.
127
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motion upon the recommendation of the magistrate.136 The Court of Appeals for the
Ninth Circuit reversed.137 The court rejected defendant’s equal protection argument and
found federal criminal statutes applicable to Indian country treated all Indians equally,
without distinguishing between member and non-member Indians.138
The Supreme Court reversed the court of appeals.139 Finding tribes’ sovereign
authority limited to criminal jurisdiction over member Indians, the court held that
jurisdiction did not extend to nonmember Indians.140 Accordingly, the Court held that
Indian tribes lacked inherent sovereign power to prosecute non-member Indians for
violations of their tribal laws.141
Congress responded to the Supreme Court’s Duro decision by promptly amending
the Indian Civil Rights Act of 1968.142 Congress “recognized” and “affirmed” the tribes’
“inherent power” to exercise jurisdiction over all persons enrolled in a federally
recognized Indian tribe.143 To date, the Supreme Court has not interpreted the post-Duro
ICRA Amendments.144
136
Id. at 682. Section 1302(8) of the ICRA forbids an Indian tribe from “deny[ing] to any person within its
jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process
of law.” 25 U.S.C § 1302(8). The court explained that given that the tribal court did not have jurisdiction
over non-Indians, to prosecute defendant constituted “discrimination based on race.” Duro, 495 U.S. at
682.
137
Id.
138
Duro v. Reina, 851 F.2d 1358, 1143 (9th Cir. 1987). The Ninth Circuit panel stated: “if Congress had
intended to divest tribal courts of criminal jurisdiction over nonmember Indians they would have done so.”
Id. Namely, the court construed sections 1151-1153 of the Indian Major Crimes Act. 18 U.S.C. §§ 11511153.
139
Duro, 495 U.S. at 698.
140
Id. at 681-82, 688.
141
Id. at 692. Justices Brennan and Marshall dissented. See id. at 698-710 (Brennan, J., dissenting); see
also discussion infra, Part VII.B.
142
25 U.S.C. § 1301(2); see Lara, 324 F.3d at 640.
143
Lara, 324 F.3d at 638.
144
Id. However, it is notable that the Supreme Court acknowledged the effect of the post-Duro ICRA
Amendments in its decision in Strate v. A-1 Contractors: “[i]n Duro v. Reina, we held that Indian Tribes
also lack criminal jurisdiction over nonmember Indians. Shortly after our decision in Duro, Congress
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Two circuit courts of appeal with significant portions of Indian country within
their respective jurisdictions have reached irreconcilable conclusions regarding the effect
of the ICRA Amendments of 1990.145 The nature of the tribes’ criminal jurisdiction over
non-member Indians for violations of tribal law is an unsettled matter given the Eighth
Circuit’s decision in United States v. Lara and the Ninth Circuit’s United States v. Enas
decision.146
The Eighth Circuit understands the Amendments as merely delegating
misdemeanor jurisdiction to tribal courts rather than restoring an inherent sovereign
power of the tribes.147 Conversely, the Ninth Circuit maintains the ICRA Amendments
removed a temporary handicap federal common law had placed on the tribes’ inherent
sovereign authority.148
VII.
A.
DISCUSSION: THE REASONING OF THE EIGHTH AND NINTH CIRCUIT
COURTS OF APPEAL, THE PARTIES’ ARGUMENTS & ANALYSIS
THE DOUBLE JEOPARDY CLAUSE
OF THE FIFTH AMENDMENT IS
INAPPLICABLE TO CONSECUTIVE PROSECUTIONS BY AUTONOMOUS
SOVEREIGNS.
The dual sovereignty doctrine significantly limits the protections of the Double
Jeopardy Clause.149 Pursuant to this doctrine, where an individual’s conduct violates
multiple autonomous sovereigns’ laws, each sovereign may prosecute the individual for
provided for tribal criminal jurisdiction over nonmember Indians.” Strate v. A-1 Contractors, 520 U.S.
438, 446 n.5 (1997).
145
Compare Lara, 324 F.3d at 640 (“[T]he ICRA Amendments cannot have the effect they plainly sought
to achieve: a retroactive legislative reversal of Duro), with Enas, 255 F.3d at 675 (“Congress had power to
determine that tribal jurisdiction over nonmember Indians was inherent.”).
146
Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL 22428587, *18, *20
(recognizing split between the Eighth and Ninth Circuits); see also Anderson, supra note 34, at 143, n.49
(recognizing same). In United States v. Enas, defendant Michael L. Enas, a member of the San Carlos
Apache Tribe, was convicted and sentenced by the White Mountain Apache tribal court for assault with
intent to cause serious bodily injury, a violation of the tribal code. Enas, 255 F.3d at 665. Thereafter, a
federal grand jury indicted defendant for assault with a dangerous weapon and assault resulting in serious
bodily injury based on the same conduct that spawned defendant’s tribal court conviction. Id. The District
Court dismissed the indictment on Double Jeopardy Clause grounds upon defendant’s motion. Id.
147
Lara, 324 F.3d at 638.
148
See Enas, 255 F.3d at 670, 675.
149
Lara, 324 F.3d at 637.
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the same conduct.150 Prosecuting a single act more than once in such instances does not
violate the Double Jeopardy Clause.151
An individual’s conduct that is subject to
successive prosecutions by autonomous sovereigns does not constitute “the same
offense”: the individual allegedly violated multiple sovereigns’ laws and, thus,
“committed an offense against each.”152
Application of the dual sovereignty doctrine hinges on “whether the two entities
draw their authority to punish the offender from distinct sources of power.”153 The dual
sovereignty doctrine allows an individual to be prosecuted for the same illegal conduct
by, for instance, two states or a state and the federal government.154 Conversely, the
doctrine does not apply where multiple prosecutions are undertaken pursuant to the same
sovereign power.155
For example, cities derive their authority from the sovereign
authority of their home state; United States territories derive their authority from the
federal government, as does the District of Columbia.156 Thus, the dual sovereignty
doctrine constitutes a significant limitation on the protections of the Double Jeopardy
Clause. 157
150
Id.
Heath v. Alabama, 474 U.S. 82, 88 (1985).
152
Lara, 324 F.3d at 637 (citing Heath v. Alabama, 474 U.S. 82, 88 (1985)).
153
Heath, 474 U.S. at 88.
154
Id. (two states); Bartkus v. Illinois, 359 U.S. 121, 139 (1959) (state and federal government). See also
United States v. Lanza, 260 U.S. 377, 382 (1922) (“Each government in determining what shall be an
offense against its peace and dignity is exercising its own sovereignty, not that of the other. It follows that
an act denounced as a crime by both national and state sovereignties is an offense against the peace and
dignity of both and may be punished by each.”).
155
Wheeler, 435 U.S. at 315-16; see also Puerto Rico v. Shell Co. (P.R.), Ltd, 302 U.S. 253, 264 (1937)
(where the laws “are creations emanating from the same sovereignty”).
156
E.g. Waller v. Florida, 397 U.S. 387, 393-95 (1970) (city and state); see also, e.g., Shell, 302 U.S. at
264-66 (1937) (territory and federal government); see, e.g., United States v. Mills, 964 F.2d 1186, 1193
(D.C. Cir. 1992) (en banc) (District of Columbia and federal government).
157
Lara, 324 F.3d at 637; see also Enas, 255 F.3d at 667.
151
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Accordingly, whether the doctrine applies to the case at bar requires close
analysis of the type of authority exercised by the Spirit Lake tribal court in its prosecution
of respondent Lara.158
Petitioner maintains that the Spirit Lake Nation exercised its
inherent retained authority in prosecuting respondent, and therefore, the dual sovereignty
doctrine applies to this matter.159 Congress, petitioner argues, is not constitutionally
barred from recognizing temporarily unavailable inherent powers of the Indian tribes.160
Respondent argues the doctrine of dual sovereignty is inapplicable here unless
this Court determines that its decisions regarding the scope of tribal sovereignty are
subject to congressional nullification.161 Congress does not have the authority to override
the “constitutional limits” of tribal sovereignty, according to the respondent.162 In short,
respondent argues erroneous that the Judiciary is supreme in this instance.163
The applicability of the dual sovereignty doctrine is dispositive here. Indeed, it is
undisputed that whether the Spirit Lake Nation Reservation exercised delegated federal
power or inherent sovereign authority in prosecuting respondent Lara, a non-member
158
Lara, 324 F.3d at 637; see also Enas, 255 F.3d at 667.
See Heath, 474 U.S. at 88 (“When a defendant, in a single act violates the ‘peace and dignity’ of two
sovereigns by breaking the laws of each, he has committed two distinct ‘offenses.’”); Brief of the Petitioner
at *14, Lara, 2003 WL 22811829 (No. 03-107).
160
See Duro, 495 U.S. at 698 (“If the present jurisdictional scheme proves insufficient to meet the practical
needs of reservation law enforcement . . . then the proper body to address the problem is Congress, which
has ultimate authority over Indian affairs.”); Brief of the Respondent at *14, *17, United States v. Lara,
2003 WL 23112950 (Dec. 29, 2003) (No. 03-107).
161
See Duro, 495 U.S. 676 (holding that tribes do not enjoy inherent authority to prosecute non-member
Indians); Heath, 474 U.S. at 88 (dual sovereignty does not apply unless “the two entities draw their
authority to punish the offender from distinct sources of power.”). See also Brief of the Respondent at *6,
Lara, 2003 WL 23112950 (No. 03-107).
162
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (the Court enjoys ultimate authority to “say
what the law is.”). In any case, respondent emphasizes, the court need not overrule or substantively
reconsider the dual sovereignty doctrine to find that respondent’s double jeopardy rights were violated.
Brief of the Respondent at *4, Lara, 2003 WL 23112950 (No. 03-107) (expressing general disagreement
with the dual sovereignty doctrine). Respondent notes that the court of appeals held that respondent’s
double jeopardy rights were violated without upending the dual sovereignty doctrine. Id.; Lara, 324 F.3d at
637, 640 (assuming the validity of the dual sovereign doctrine).
163
See infra Part VII.B notes 223-249 and accompanying text.
159
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Indian, is dispositive of this case.164 In order to establish a double jeopardy violation,
respondent must show either that: (1) Duro v. Reina, a constitutional case, controls and
thus, the two prosecutions derived authority from the federal sovereign; or (2)
alternatively, the ICRA Amendments did not restore the Spirit Lake Nation Reservation’s
inherent power to prosecute non-member Indians but instead delegated misdemeanor
jurisdiction to the tribal courts such that the two prosecutions exercised federal power.165
Hence, in any case, respondent must demonstrate that the dual sovereignty doctrine is
inapplicable to the successive tribal and federal prosecutions to which he was subjected
to prevail.
DURO V. REINA IS NOT A CONSTITUTIONAL DECISION AND THEREFORE,
IS SUBJECT TO CONGRESSIONAL MODIFICATION.
In Duro v. Reina, as noted, supra Parts.V., VI., the Supreme Court found that the
B.
Indian tribes no longer enjoy “full territorial sovereignty” to try any individual who
violates tribal law while on tribal land.166 The Court held that tribes no longer enjoy
sovereign authority to criminally prosecute non-member Indians.167 In defining the scope
of tribes’ retained inherent sovereignty, the court drew a bright line distinction between
“manifestation[s] of external relations” and “internal self-governance.”168
The court
found this distinction to be recognized in other areas of Indian law and supported by
history.169
164
Lara, 324 F.3d at 637; Enas, 255 F.3d at 665-66. See also Brief of the Petitioner at *14-*15, Lara, 2003
WL 22811829 (No. 03-107); Brief of the Respondent at *6, Lara, 2003 WL 23112950 (No. 03-107).
165
See, e.g., Wheeler, 435 U.S. at 318. See also Brief of the Petitioner at *14-*15, Lara, 2003 WL
22811829 (No. 03-107); Brief of the Respondent at *6, Lara, 2003 WL 23112950 (No. 03-107).
166
Duro v. Reina, 495 U.S. 676, 685 (1990) (“Oliphant recognized that the tribes can no longer be
described as sovereigns in this sense.”) (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).
167
Id. at 685-96.
168
See id. at 686-87.
169
See id. at 686-92.
- 29 -
Notions of consent and the protections of United States citizenship also proved
paramount in the Court’s reasoning.170
As United States citizens, all Indians are
“embraced within our Nation’s ‘great solicitude that its citizens be protected . . . from
unwarranted intrusions on their personal liberty.’”171 Finding the historical record of
whether Indian tribes exercised criminal jurisdiction over non-member Indians somewhat
ambiguous,172 the Supreme Court declined to “adopt a view of tribal sovereignty that
would single out another group of citizens, nonmember Indians, for trial by political
bodies that do not include them.”173 The Bill of Rights is not incorporated to the Indian
tribes,174 and the safeguards of the Indian Civil Rights Act of 1968 “are not equivalent to
their constitutional counterparts.”175
Moreover, the Duro court noted, Congress’
170
See id. at 692-96.
Id. at 692-93 (quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978)).
172
The Court failed to find significant that historical documents, such as statutes and administrative
provisions, consistently defined “Indians” generally, rather than by tribal membership. See id. at 689-90
(noting that this “at most” reflects that historically the federal government treated the tribes as an
“undifferentiated class”). Moreover, the Court found that treaty interpretation was not conclusive. Id. at
690 (“Scholars who do find treaties illuminating have only divided in their conclusion.”). Hence, Duro did
not undertake any treaty interpretation in reaching its conclusion. See id.
Instead, the Duro court found “somewhat clearer guidance” from the tribal courts’ history. Id. at 69091 (noting that the Indian Reorganization Act of 1934 “established” tribal courts). See also Indian
Reorganization Act of 1934, 25 U.S.C. § 476 (a federally recognized tribe is entitled to “organize for the
common welfare and “adopt an appropriate constitution and bylaws.”). While conceding that the history of
the tribal courts is not clear with regards to their jurisdiction over non-member Indians, the Court
nevertheless concluded that “on balance” this history suggests that tribes do not enjoy inherent criminal
prosecutorial authority over non-member Indians. Duro, 495 U.S. at 691-92 (finding three opinions of the
Solicitor General of the Department of the Interior to most clearly evidence this conclusion).
173
Id. at 693 (“Evidence on criminal jurisdiction over nonmembers is less clear, but on balance supports the
view that inherent tribal jurisdiction extends to tribe members only.”). The Supreme Court further noted
that the “Petitioner’s general status as an Indian says little about his consent to the exercise of authority
over him by a particular tribe.” Id. at 695. The Court’s suggestion that inclusion in the political system is
pre-condition to a sovereign’s ability to criminally prosecute and individual is questionable. Note that if
this were true a state would be unable to prosecute residents of another state nor could any United States
court try and punish aliens. Id. at 707 (Brennan, J., dissenting) (“Nor have we ever held that participation
in the political process is a prerequisite to the exercise of criminal jurisdiction by a sovereign.”).
174
Talton v. Mayes, 163 U.S. 376 (1896).
175
Duro, 495 U.S. at 693. The court noted, for instance, that the ICRA does not mandate that tribal
governments furnish counsel for defendants unable to afford counsel. Id. (citing 25 U.S.C. § 1302(6)).
Notably, however, Amici National Congress of American Indians (“NCAI”), a national organization
representing the interests of American Indians, notes that the right to counsel and the right to a grand jury
indictment are the only instances in which the ICRA deviate from the protections of the Bill of Rights.
Brief of Amici National Congress of American Indians at *2 n.2, United States v. Lara, 2003 WL
171
- 30 -
authority to subject United States citizens to tribunals that do not furnish criminal
defendants with the full protections of the Bill of Rights is subject to “constitutional
limitations.”176
Indian tribes only retain authority to try members on criminal charges because
tribal membership is voluntary and brings with it the right to participate in tribal
government.177 The Court thus understood tribal sovereignty to encompass only those
powers that “the tribes maintain over Indians who consent to be tribal members.”178
Consequently, the Court reasoned, Indian tribes do not enjoy an inherent sovereign power
to try and punish “non-members in tribal court.”179
Lastly, the Duro court disputed that its Duro holding created a jurisdictional
loophole for law enforcement.180 Nevertheless, the Court suggested that if its decision in
Duro proved unworkable, Congress should craft a solution due to its “ultimate authority
22766743 (Nov. 14, 2003) (No. 03-107) (citing 25 U.S.C. § 1302). The writ of habeas corpus is also
available to defendants convicted by tribal courts. Id. (citing 25 U.S.C. § 1303). Amici also notes that §
1302(7) of the ICRA limits tribal court sentences to a $5000 fine and jail time of one year. Id. (citing 25
U.S.C. § 1302(7)).
176
Duro, 495 U.S. at 693 (citing Reid v. Covert, 354 U.S. 1 (1957)).
177
Id. at 694.
178
Id. at 693 (emphasis added).
179
Id. at 694.
180
Id. at 696-97 (“Our decision today does not imply endorsement of the theory of jurisdictional void
presented by respondents and the court below.”). Respondents argued that the Court’s failure to find tribes
had inherent jurisdiction to criminally prosecute non-member Indians could likely result in a “jurisdictional
void” where no “lawful authority would [be able] to punish the nonmember Indian” for minor offenses. Id.
(citing ARIZ. CONST. art. 20, ¶ 4) (the Duro court found it unclear whether state officials have authority or
resources in this situation); Indian Country Crimes Act, 18 U.S.C. § 1152 (federal jurisdiction does not
“extend to offenses created by one Indian against the person or property of another Indian)). That is,
respondents argued, only if the state had been granted jurisdiction to prosecute minor crimes in Indian
country by Congress would a sovereign have authority to hear the crime that gave rise to the case at bar.
See id at 696.
- 31 -
over Indian affairs.” 181 In short, Congress, not the Court, is “the proper body to address
the problem.”182
Justices Brennan and Marshall dissented.183 The dissent stated that the majority’s
decision amounted to an unwarranted application of the Oliphant principle of “implicit
divest[ment]” of tribes’ inherent authority over criminal prosecutions of non-Indians, to
non-member Indians.184 Oliphant, according to the dissent, “established no such broad
principle.”185
The dissent distinguished Oliphant from the issue raised in Duro.186 While the
Indian tribes necessarily ceded those inherent powers inconsistent with their dependent
status, they retained inherent authority over self-governance.187 In Oliphant, applicable
positive law evidenced a “shared presumption” that tribes no longer possess inherent
authority to prosecute non-Indians.188 Conversely, the dissent noted, “[f]rom the very
181
Id. at 698 (“We cannot, however, accept these arguments of policy as a basis for finding tribal
jurisdiction that is inconsistent with precedent, history, and the equal treatment of Native American
citizens.”).
182
Id. at 698.
183
Id. (Brennan, J., dissenting) (rejecting the majority’s “parsimonious view of the sovereignty retained by
Indian tribes).
184
Id. at 699-700 (Brennan, J., dissenting) (“[I]t does not follow that because tribes lost their power over
non-Indians, they also lost their power to enforce criminal laws against Indians who are not members of
their tribe.”).
185
Id. at 700 (Brennan, J., dissenting). The Oliphant decision’s analysis was limited to whether tribal
prosecution of non-Indians is inconsistent with their dependent status. See id. at 700 (Brennan, J.,
dissenting). The dissent noted that the Oliphant decision relied not on any express deprivation of the
tribes’ inherent authority over non-Indians by Congress, but instead on the Indian tribes’ dependent status.
See id. at 700-01(Brennan, J., dissenting). Thus, the dissent stated, applying the Oliphant rule to the facts
in Duro is inappropriate. See id. at 699-700 (Brennan, J., dissenting).
186
See id. at 702-09 (Brennan, J., dissenting).
187
Id. at 699 (Brennan, J., dissenting). Accord Worcester, 31 U.S. (6 Pet.) at 560-61; Wheeler, 435 U.S. at
326.
188
Duro, 495 U.S. at 701 (Brennan, J., dissenting).
- 32 -
start, Congress has consistently exempted Indian-against-Indian crimes from the reach of
federal or state power.”189
The dissent also rejected the majority’s conclusion that because Native Americans
are United States citizens, the federal government’s overriding interest in safeguarding its
citizens’ liberty interests forecloses subjecting non-member Indians to tribal courts.190
The majority’s assertion “proves too much,” the dissent noted, because it would mean
that Indian tribes were also divested of inherent authority over its members.191
Likewise, asserted the dissent, the majority’s explanation that members’ consent
to tribal membership makes tribal authority over member Indians permissible is also
flawed.192 This reasoning suggests that aliens could not be criminally prosecuted in the
United States, and states would be unable to try and punish nonresidents who break the
law.193 Surely, the dissent urged, perpetrating a crime in Indian country is “all the
‘consent’ necessary to allow the tribe to exercise criminal jurisdiction over the
nonmember Indians.”194
189
Id. at 703 (Brennan, J., dissenting) (noting that the Trade and Intercourse Act of 1790, the Act of 1817
(later codified, as amended, at 18 U.S.C. § 1152), and the Act of 1854 all “exclud[e] Indian-against-Indian
crimes from federal jurisdiction” and all imply that “tribes retained power over these crimes involving only
Indians.”). The dissent also found it significant that applicable treaties and statutes consistently use the
word “Indian,” a term the Supreme Court has held “does not differentiate between members and
nonmembers of a tribe.” Id. (Brennan, J., dissenting) (citing United States v. Kagama, 118 U.S. 375
(1886)).
190
Id. at 706-07 (Brennan, J., dissenting).
191
Id. at 707 (Brennan, J., dissenting); see Wheeler, 435 U.S. at 332 (holding that Indian tribes retain
inherent authority to prosecute tribe members).
192
See Duro, 495 U.S. at 707 (Brennan, J., dissenting).
193
See id. (Brennan, J., dissenting) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 279-81 (1990)
(Brennan, J., dissenting)).
194
Id. (Brennan, J., dissenting).
- 33 -
The dissent also took issue with the majority’s “consent” rationale, saying that it
conflicts with Congress’s plenary authority over Indian affairs.195 The dissent rejected
the majority’s contention that there “might be some independent constitutional
limitation” on Congress’s ability to subject citizens to tribal courts that do not furnish
criminal defendants with constitutional rights.196 Moreover, the majority’s reasoning is
erroneous because “participation in tribal government cannot in and of itself constitute a
knowing and intelligent waiver of constitutional rights.”197 In any case, the dissent
opined, the majority’s concerns are unfounded given the Indian Civil Rights Act provides
most of the Bill of Rights protections to tribal court litigants.198
Lastly, the majority’s holding “create[s] a jurisdictional void”.199 The dissent
reasoned that it is “highly unlikely that Congress intended to create a jurisdictional void
in which no sovereign has the power to prosecute an entire class of crimes.”200 Thus, the
dissent contended, it does not follow that Congress understood tribes’ inherent
sovereignty to be limited to non- Indians.201
195
Id. at 707-08 (Brennan, J., dissenting) (“[T]he Court’s ‘consent theory’ is inconsistent with the
underlying premise of Indian law, namely that Congress has plenary control over Indian affairs.”).
196
Id. at 708, n.4 (Brennan, J., dissenting). The dissent asserted that Congress could “grant[] Indian tribes
the right to prosecute anyone who committed a crime on the reservation—Indian or non-Indian—
unconstrained by the fact that neither of these groups participate in tribal government.” Id. at 708
(Brennan, J., dissenting).
197
Id. at 707, n.4 (Brennan, J., dissenting).
198
Id. at 708 (Brennan, J., dissenting). The dissent also noted that the ICRA addresses the majority’s fear
of subjecting nonmember Indians to tribal courts that reflect the unique “customs, languages and usages of
the tribes they serve.” Id. at 708-09 (citing 25 U.S.C. § 1301 et seq.).
199
Id. at 705. Pursuant to the Duro majority decision, neither the tribes nor the federal government had
criminal jurisdiction over non-member Indians who perpetrated misdemeanor crimes against Indians. Id.
200
Id. at 703 (Brennan, J., dissenting) (emphasis in original) (the jurisdictional void “should inform our
understanding of the assumption about tribal power upon which Congress legislated”). The court in
Oliphant stated: “‘Indian law’ draws principally upon the treaties drawn and executed by the Executive
Branch and legislation passed by Congress. These instruments . . . cannot be interpreted in isolation but
must be read in light of the common notions of the day and the assumptions of those who drafted them.”
Oliphant, 435 U.S. at 206 (emphasis added) (citations omitted).
201
Duro, 495 U.S. at 704 (Brennan, J., dissenting) (“The existence of a jurisdictional gap is not an
independent justification for finding tribal justification for finding tribal jurisdiction, but rather is relevant
- 34 -
The Court of Appeals for the Eighth Circuit was the first court of appeals to
consider the nature of the Supreme Court’s decision in Duro v. Reina.202 In United States
v. Weaselhead, the court of appeals held that tribal sovereignty is “ultimately entrusted to
the Court” and as a “[f]undamental, ab initio matter[] of constitutional history should not
be committed to ‘[s]hifting legislative majorities.’”203 Hence, modern notions of judicial
Supremacy were fundamental to the courts’ reasoning.204
In United States v. Enas, a unanimous eleven-judge panel of the Ninth Circuit
Court of Appeals determined that Duro “is not a constitutional decision but rather, like
Oliphant and Wheeler, a decision founded on federal common law.”205 The Ninth Circuit
emphasized that Duro’s analysis was “explicitly historical” while reasoning in Oliphant
and Wheeler turned on the “necessarily historical question of ‘implicit divestiture.’”206
Expressly rejecting the Ninth Circuit’s interpretation in the Enas decision, the
Eight Circuit Court of Appeals held below that Duro was a “constitutional decision.”207
The court concluded that Duro’s delineation between Indian tribes’ “inherent and
delegated powers is of constitutional magnitude and therefore is a matter ultimately
entrusted to the Supreme Court.”208 Accordingly, the Eighth Circuit found, the Supreme
to determining congressional intent.”). The dissent also underscored its objections to the Duro decision,
noting that the majority’s holding “stands in direct conflict” with Congress’s current policy of “promoting
the independence and self-government of the various tribes.” Id. at 700-01 (Brennan, J., dissenting).
202
United States v. Weaselhead, 156 F.3d 818, 823 (8th Cir. 1998).
203
Id. at 824 (quoting City of Boerne v. Flores, 521 U.S. 507, 529 (1997)).
204
See City of Boerne v. Flores, 521 U.S. 507, 529 (1997).
205
See Enas, 255 F.3d at 673.
206
Id. at 668. See Wheeler, 435 U.S. at 323-26; Oliphant, 435 U.S. at 196-208.
207
Lara, 324 F.3d at 639 (“With all due respect to the holding in Enas, we conclude 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.”).
208
Id. (emphasis added) (failing to identify a constitutional provision that formed the basis of this
conclusion). Later, the court further stated that the Supreme Court’s holding in Duro resolved “first
principles regarding Indian sovereignty within the federal system.” Id.
- 35 -
Court’s word is the ultimate authority on this issue of Indian sovereignty.209 Citing
Seminole Tribe v. Florida, the court of appeals reasoned that “structural principles that
are both implicit and explicit in the Constitution” must direct its understanding of the
extent of congressional power to oversee Indian affairs.210
Four of the eleven judge circuit court dissented.211 Writing for the dissent, Judge
Arnold asserted that Duro v. Reina is a federal common law decision.212 The dissent
stated that “a decision is ‘constitutional’ only when it states, or necessarily implies, that
the Constitution requires the result that it reaches.’”213 The dissent noted that the court
failed to precisely identify where the distinction between inherent and delegated powers
of tribal authority can be found in the Constitution.214
Petitioner argues that the Eighth Circuit erred in holding that Duro v. Reina is a
constitutional decision.215 No constitutional provision, notes petitioner, speaks to the
scope of Indian tribes’ retained sovereign authority, tribal sovereignty has consistently
been treated as a federal common law issue in the absence of congressional action.216
Moreover, the Duro decision itself never rests its holding on a particular constitutional
provision nor proclaims to be a “constitutional” decision.217 Thus, argues petitioner,
209
See id. at 640.
Id. (citing Seminole Tribe v. Florida, 517 U.S. 44 (1996)).
211
Id. at 641 (Arnold, J., dissenting).
212
Id.
213
Id. at 644 (Arnold, J., dissenting).
214
Id. (although the majority cites Duro and Seminole Tribe, “[t]he court . . . does not describe what these
structural principles are, nor does it explain why they derived from the Constitution.”). The dissenting
judges note that “‘no court has [ever] found a constitutionally protectible interest in tribal sovereignty
itself.” Id (quoting WILLIAM C. CANBY, JR., FEDERAL INDIAN LAW, at 85 (3d ed. 1998)).
215
See Brief of the Petitioner at *26-*27, Lara, 2003 WL 22811829 (No. 03-107).
216
Id. at *27 (“From the early years of this Nation, tribal sovereignty has been understood to be subject to
adjustment by federal treaties and statutes.”).
217
See Duro v. Reina, 495 U.S. at 684-98 (no mention of that holding dependent on the Constitution, much
less a specific constitutional provision); see also Brief of the Petitioner at *26-*27, Lara, 2003 WL
210
- 36 -
Duro is a federal common law case and is, therefore, subject to congressional
modification.218
Respondent, in marked contrast, asserts that the court of appeals correctly held
that Duro is a constitutional case that cannot be “legislatively reversed” by Congress.219
Respondent maintains that the scope of tribal sovereignty is cabined by “constitutional
limits.”220
Duro, respondent maintains, “Constitutional concerns clearly guided the
Court’s decision,” with references throughout to “the powers and limitations found in the
Constitution.”221
Respondent notes, for example, that in its discussion of Wheeler, the
Duro decision noted tribes’ sovereign authority is limited by the “Tribes’ dependent
status” and congressional delegations of power “subject to the constraints of the
Constitution.”222 Also, the Duro decision’s constitutional character is also evidenced by
the court’s emphasis on the “personal liberty rights possessed by all Indians,” a principle
implicit in the Fifth Amendment. 223
22811829 (No. 03-107) (citing Cherokee Nation v. Georgia, 30 U.S. (Pet.) 1, 16-19 (1831); Oliphant v.
Suquamish, 435 U.S. 191, 206 (1978)).
218
Brief of the Petitioner at *26-*27, Lara, 2003 WL 22811829 (No. 03-107).
219
Brief of the Respondent at *6, *15, Lara, 2003 WL 23112950 (No. 03-107). Respondent also asserts
that Duro was correctly decided. Id. at *4-*15. Respondent reasons the Supreme Court’s decisions in
Oliphant and Wheeler fixed the extent of the tribes’ sovereign powers permitted under the Constitution, and
Duro, argues respondent, extended their reasoning to non-member Indians. Id. at *7-*10.
220
Id. at *6.
221
Id. at *16. Petitioner refutes this by again noting that “[n]o provision of the Constitution addresses
[whether an Indian tribe retains sovereign authority to prosecute non-member Indians], and respondent
does not attempt to identify one.” Reply Brief for the United States*7, United States v. Lara, 2004 WL
69151(Jan. 14, 2004) (No. 03-107). Moreover, petitioner asserts that Duro and the Supreme Court’s other
decisions suggest that the scope of tribal sovereignty is not established in the constitution and, therefore, is
subject to congressional modification. Id. at *8.
222
Brief of the Respondent at *16, Lara, 2003 WL 23112950 (No. 03-107) (citing Duro v. Reina, 495 U.S.
676, 686 (1990)).
223
Id. at *16 (citing Duro v. Reina, 495 U.S. 676, 694 (1990)). Quoting Duro, respondent stressed,
“‘Indians like other citizens are embraced within our Nation’s great solicitude that its citizens be protected
from unwarranted intrusion on their personal liberty.’” Id. (citing Duro v. Reina, 495 U.S. 676, 692
(1990)). Respondent notes that Duro further explained: “[c]riminal trial and punishment is so serious an
intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered
- 37 -
It is clear that Duro v. Reina cannot be a constitutional decision. In Cherokee
Nation v. Georgia, Chief Justice Marshall stated “the relation of the Indians to the United
States is marked by peculiar and cardinal distinctions which exist nowhere else.”224 The
nature of the Indian tribes’ sovereignty continues to be elusive today. This can be
primarily attributed to the Constitution’s silence regarding the Indian tribes’ status in the
constitutional scheme.225
The Constitution references the tribes twice, yet nowhere
discusses the scope of the tribes’ sovereign authority.226
The treaty power of Article II, Section 2, Clause 2 applies to the Indian tribes.227
Treaties “recognize tribal sovereignty and are a marker of constitutional status.”228
However, treaties are also subject to “unilateral abrogation under the plenary power
doctrine.”229
Likewise, the Indian Commerce Clause acknowledges “some kind of
significant and enduring sovereignty in Indian tribes as it is specifically identified in a
series that includes the states and foreign nations.”230 None of these provisions, however,
speak to the nature and scope of the Indian tribes’ sovereignty.231 Accordingly, the
Supreme Court has consistently resolved cases addressing “the nature of tribal
by the tribes in their submission to the overriding sovereignty of the United States.” Id. (citing Duro v.
Reina, 495 U.S. 676, 694 (1990)).
224
Cherokee Nation, 30 U.S. (5 Pet.) at 16.
225
U.S CONST. art. I, § 8, cl. 3; U.S. CONST., art. II, § 2, cl. 2.
226
Id.
227
U.S. CONST. art. II, § 2, cl. 2.
228
Pommersheim, Constitutional Crisis, supra note 40, at 273 n.9.
229
Id. (citing FRANK POMMERSHEIM, BRAID OF FEATHERS 38-41 (1995)).
230
Id. (“Nevertheless, the clause does not spell out the scope of authority for any of these entities as
constitutional subjects . . . ”). It bears noting that the fluid relationship between the federal government and
the Indian tribes is patently different than that between the federal government and the states that is marked
by “constitutional and theoretical solidity.” Id. at 278 (“The Tenth Amendment provides a clear
constitutional marker for discussions of federal-state sovereignty, while discussion of federal-tribe
sovereignty takes place largely outside the text of the [C]onstitution.”). Cf. U.S. CONST. art. IV, § 4
(Guarantee Clause); U.S. CONST. art. IV, § 3 (territorial integrity); U.S. CONST. art. I, § 3, cl. 1 (Senate
representation).
231
United States v. Weaselhead, 156 F.3d 818, 825 (Arnold, J., dissenting). See Pommersheim,
Constitutional Crisis, supra note 40, at 273 (“Nevertheless, the clause does not spell out the scope of
authority for any of these entities as constitutional subjects . . . ”).
- 38 -
sovereignty and its interaction with the federal and state sovereigns with almost no
reference to any constitutional benchmarks or limitations.”232
Indeed, in Duro the Supreme Court “[n]owhere
. . .
intimate[s] that it is
announcing a constitutional precept,” nor does it claim that its reasoning is “compelled”
by “constitutional principles.”233 Neither can the decision be characterized as grounded
in statutory interpretation.234 While it may not be clear whether Duro is a creature of
federal common law or of “general law,”235 “no matter how one views the matter”
Congress acted within its legislative authority in amending § 1301(2) and making clear
which inherent sovereign powers the Indian tribes retained.236
At the outset of its analysis, moreover, the Duro court indicated that it did not
understand the decision to be constitutional.237 The Court noted that “tribal officials do
not claim jurisdiction [over non-member Indians] under an affirmative congressional
authorization or treaty provision, and petitioner does not contend that Congress has
232
Pommersheim, Constitutional Crisis, supra note 40, at 271. Moreover, one commentator writing in
2001 reported that none of the Indian law cases addressed since 1986 “turned on constitutional questions.”
Getches, Beyond Indian Law, supra note 63, at 271 n.3. Clearly, this would include the 1990 Duro
decision.
233
Enas, 255 F.3d at 673 (citation omitted). Accord L. Scott Gould, The Consent Paradigm: Tribal
Sovereignty at the Millenium, 96 COLUM. L. REV. 809, 853 (1996) (“Oliphant and Duro were not
constitutional decisions; they were founded instead on constitutional law.”); 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) (“[I]t cannot be said that
[Duro’s] rule was constitutionally required . . . [Duro] has no constitutional referent.”).
234
See Duro, 495 U.S. at 684-98; see also Enas, 255 F.3d at 674 (“Although the Court did discuss various
statutes in the course of determining that tribes did not retain criminal jurisdiction over nonmember Indians
. . . the decision does not interpret any particular statute.”) (citing Duro v. Reina, 495 U.S. 676, 691
(1990)).
235
Chief Justice Marshall defined “general law” as follows: “The general law of European sovereigns,
respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular
potentate whose ultimate right of domain was acknowledged by the others.” Worcester, 31 U.S. at 551; see
also, John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L. REV. 333
(1998) (regarding the law of precedent).
236
Lara, 324 F.3d at 645 (Arnold, J., dissenting) (“Even if the mere existence of the Indian commerce
clause somehow restricted the powers that tribes inherently possess, moreover, inherent sovereignty would
still be a matter of federal common law”).
237
Duro, 495 U.S. at 684.
- 39 -
legislated to remove jurisdiction from the states.”238 The Court claimed that the analysis
employed in Oliphant and Wheeler “compels the conclusion” that Indian tribes do not
enjoy inherent sovereign authority to prosecute non-member Indians.239 Yet, none of
these cases turned on constitutional analysis or interpretation.240 Indeed, the Court made
clear in Oliphant, Wheeler and Duro that Congress, as the “ultimate authority over Indian
affairs,” ought to address any practical problems that might result from the decisions.241
As the Ninth Circuit stated, to find Duro’s holding, that Indian tribes do not have inherent
sovereignty to criminally prosecute non-member Indians, to be a “constitutional issue
ignores the glaring omission of constitutional discourse from Duro, Oliphant and
238
The Duro court prefaced its comments by saying “[a]s in Oliphant.” Id. at 684. This suggests that the
Court understood Oliphant, like Duro, to be a federal common law case, contrary to respondent’s assertion
that both cases are “constitutional.” Id.; cf. Brief of the Respondent at *7-*9, Lara, 2003 WL 23112950
(No. 03-107).
239
Duro, 495 U.S. at 685. Notably, Indian law has, since the Marshall trilogy, not been constitutionally
based; see Cherokee Nation, 30 U.S. (Pet. 5) 1 (holding not couched in any provision of the Constitution).
Rather, statutes and treaties form the backbone of Indian law “which beyond their actual text form the
backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be
read in light of the common notions of the day and the assumptions of those who drafted them.” Oliphant,
435 U.S. at 206.
240
Id. (“While not conclusive on the issue before us, the commonly shared presumption of Congress, the
Executive Branch, and lower federal courts do not have the power to try non-Indians carries considerable
weight.”) (citations omitted). In Wheeler, the Court noted limitations to tribal sovereignty recognized by
Supreme Court precedent and distinguished prosecutions of member Indians:
These limitations rest on the fact that the dependent status of the Indian tribes within our territorial
jurisdiction is necessarily inconsistent with their freedom independently to determine their
external relations. But the powers of self-government, including the power to prescribe and
enforce internal criminal laws, are of a different type. They involve only the relations among
members of a tribe.
Wheeler, 435 U.S. at 326 (emphasis added).
241
Duro, 495 U.S. at 698 (“If the present jurisdictional scheme proves insufficient to meet the practical
needs of reservation law enforcement, then the proper body to address the problem is Congress, which has
ultimate authority over Indian affairs.”); Wheeler, 435 U.S. at 331 (“This problem would, of course, be
solved if Congress, in the exercise of its plenary power over tribes, chose to deprive them of criminal
jurisdiction altogether); cf. Oliphant, 435 U.S. at 211 (“[W]e are not unaware of the prevalence of nonIndian crime on today’s reservations which the tribes forcefully argue requires the ability to try nonIndians. But these are considerations for Congress to weigh in deciding whether Indian tribes should finally
be authorized to try non-Indians.”).
- 40 -
Wheeler.”242 In short, the reasoning of Duro is clearly based on case precedent, history
and custom, rather than the Constitution.243
The well-reasoned opinion of the dissenting judge in the Eighth Circuit Court of
Appeals decision in United States v. Weaselhead provides additional support for the
conclusion that Duro is indeed a federal common law decision.244 In Weaselhead, the
Eighth Circuit considered the same issues as those presented by the present case and held
that Duro was a constitutional decision.245 In dissent, Judge Arnold noted that the nature
and scope of Indian tribes’ sovereignty “has no constitutional basis.”246
Indian
sovereignty is simply not mentioned in the Constitution; defining the boundaries of
Indian sovereignty has “always been a matter of federal common law.”247 For instance,
Judge Arnold noted, in examining the scope of tribal sovereignty in Cherokee Nation,
Chief Justice Marshall “made no intimation that the Constitution had anything to say on
the question of whether Indian tribes are states.”248
242
Enas, 255 F.3d at 674 (internal citation omitted) (“It would be extraordinary indeed if those were
constitutional decision that simply neglected to mention the Constitution.”).
243
Respondent argues that because Congress ‘spoke’ in passing the post-Duro ICRA Amendments, even if
Duro is determined not to be a constitutional case “it would not necessarily follow that Duro was a federal
common law case.” Brief of the Respondent at *20 n.5, Lara, 2003 WL 23112950 (No. 03-107).
Respondent fails to provide further explanation or articulate how congressional action subsequent to
creation of a federal common law rule would render the decision ‘non-federal common law.’
244
United States v. Weaselhead, 156 F.3d 818, 825 (Arnold, J., dissenting).
245
Id. at 818 (analyzing Duro and the ICRA Amendments). The majority found that the Duro decision was
of constitutional dimensions. Id. at 824 (citing City of Boerne v. Flores, 521 U.S. 507, 529 (1997)).
Notably, sitting en banc an evenly divided Eighth Circuit vacated the three-judge panel decision. See
United States v. Weaselhead, 156 F.3d 818, vacated upon rehearing en banc, 165 F.3d 1209 (8th Cir.
1999) (en banc) (4-4 decision).
246
Weaselhead, 156 F.3d at 825 (Arnold, J., dissenting).
247
Id. (Arnold, J., dissenting) (“These are matters that are to be decided by reference to governmental
custom and practice and to the general principles of jes gentium.”).
248
Id. (Arnold, J., dissenting) (quoting Cherokee Nation v. Georgia, 30 U.S. (Peters) 1, 16-19 (1831)).
Notably, sitting en banc an evenly divided Eighth Circuit vacated the three-judge panel decision and
affirmed the judgment of the district court. United States v. Weaselhead, 165 F.3d 1209 (8th Cir. 1999) (en
banc) (4-4 decision).
- 41 -
It is clear that “Congress may not legislatively supercede [Supreme Court]
decisions interpreting and applying the Constitution.”249 Thus, whether Duro v. Reina is
a constitutional decision or, instead, Court action in the “absence of congressional
direction,” is determinative of the case at hand.250 Duro is plainly not a constitutional
case: the Court neither cited nor analyzed a constitutional provision in defining the scope
of Indian tribes’ retained criminal prosecutorial authority.251
C.
POST-DURO V. REINA ICRA AMENDMENTS EFFECTIVELY
REINSTATED THE INDIAN TRIBES’ INHERENT AUTHORITY TO TRY AND
PUNISH NON-MEMBER INDIANS.
THE
Congress amended the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301, in 1990
in response to the Supreme Court’s Duro v. Reina decision.252 In amending the Indian
Civil Rights Act (ICRA), 25 U.S.C. § 1301 et seq., Congress revised the Indian tribes’
“powers of self-government” outlined in § 1302 to read as follows: “the inherent power
249
Dickerson v. United States, 530 U.S. 428, 437 (2000) (citing City of Boerne v. Flores, 521 U.S. 507,
517-21 (1997)).
250
Id. at 437. See Enas, 255 F.3d at 673-75; Lara, 324 F.3d at 640.
251
Enas, 255 F.3d at 673; see Duro, 495 U.S. at 676-79. Instead, as one commenter has noted, Duro,
together with Oliphant, “accomplished a power play of constitutional dimensions: a power play aimed at
wresting from Congress its traditional role of determining relations between Indian tribes and the United
States.” Alex Tallchief Skibine, Duro v. Reina and the Legislation That Overturned It: A Power Play of
Constitutional Dimensions, 66 S. CAL. L. REV. 767, 783-84 (1993) (proposing that the Trust Relationship
that exists between the federal government and the Indian tribes presents the appropriate analytical
framework to gauge the scope of congressional power over Indian affairs subsequent to Duro and, applying
that framework, concluding that the 1990 ICRA Amendments constitutionally recognized the tribes’
sovereign prosecutorial authority over non-member Indians).
252
See, e.g., 137 Cong. Rec. H.2988-02 (daily ed. May 14, 1991), 1991 WL 77806 (statement of Rep.
Miller) (“Mr. Speaker, I move that the House suspend the rules and pass the bill (H.R. 972) to make
permanent the legislative reinstatement, following the decision of Duro v. Reina (58 U.S.L.W. 4643, May
29, 1990), of the power of Indian tribes to exercise criminal jurisdiction over Indians.”); see, e.g., id.
(statement of Rep. Miller) (“Mr. Speaker, H.R. 972 fills a jurisdictional void created by the 1990 Supreme
Court case of Duro versus Reina.”); see, e.g., id. (statement of Rep. Rhodes) (“I rise in support of H.R. 972,
a bill that would recognize and affirm the power of Indian tribes to exercise misdemeanor criminal
jurisdiction over all Indians in Indian country. The effect of this bill is to overturn Duro versus Reina, a
ruling of the U.S. Supreme Court decided in May 1990.”). See also Lara, 324 F.3d at 638 (“In response to
the decision in Duro, Congress amended the [ICRA].”); Enas, 255 F.3d at 669 (“In 1990, the same year
that Duro was decided, Congress enacted amendments to the Indian Civil Rights Act that were intended to
override Duro . . . This intention is explicit in the statutory text, and permeates the legislative history”)
(emphasis added). But see Duro, 495 U.S. at 696 (“[N]onmember [Indians], who share relevant
jurisdictional characteristics of non-Indians, should share the same jurisdictional status.”).
- 42 -
of Indian tribes, [is] hereby recognized and affirmed, to exercise criminal jurisdiction
over all Indians.”253 Thus, pursuant to § 1301(2) all members of federally recognized
tribes are subject to other tribes’ jurisdictional reach.254 Central to this matter is whether
the post-Duro legislation restored the tribe’s sovereign authority to prosecute nonmember Indians or delegated a federal power to the tribal courts. How the statute is
interpreted will dictate whether respondent suffered a violation of his double jeopardy
rights when the Spirit Nation Tribal Court and the federal government subjected him to
successive prosecutions.
1. The text, legislative history and purpose of the post-Duro
amendments indicate that Congress intended to reinstate the
Indian tribes’ inherent sovereign authority to prosecute nonmember Indians.
The Ninth Circuit found in Enas that in passing the ICRA Amendments,
“Congress had the power to do exactly what it intended when it enacted the 1990
amendments.”255 Having found that Duro was a federal common law case, and that
“Congress is supreme” within the sphere of federal common law, the Enas court found
that “Congress had the power to enact its vision of tribal sovereignty.”256 Accordingly,
the Ninth Circuit held that after the enactment of the 1990 ICRA Amendments, tribes
regained their inherent sovereign authority over prosecuting non-member Indians.257
253
Indian Civil Rights Act, 25 U.S.C. § 1301(2) (emphasis added). Section 1301(4) was also amended
such that “Indian” was defined as all persons subject to the Indian Major Crimes Act, 18 U.S.C. § 1153.
Indian Civil Rights Act, 25 U.S.C. § 1301(4).
Prior to 1990, the definition of “powers of self-government” contained in the text of § 1301(2) read as
follows: “all governmental powers possessed by an Indian tribe, executive, legislative and judicial, and all
offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses.”
25 U.S.C. § 1301(2) (1990).
254
Indian Civil Rights Act, 25 U.S.C. §§ 1301(2)-(4); see also Lara, 324 F.3d at 638.
255
Enas, 255 F.3d at 674.
256
Id. at 670 (acknowledging that that ICRA “Duro-fix” legislation “was at odds with the Supreme Court’s
historical narrative.”).
257
See id. at 675.
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The Eighth Circuit Court of Appeals found that the Duro decision is of
“constitutional magnitude” and, therefore that the Supreme Court’s decision is the
ultimate authority on this issue of Indian sovereignty.258
Accordingly, the court of
appeals concluded that the ICRA Amendments could not have their purported effect.259
The Eighth Circuit opined that despite Congress’s plenary power to regulate Indian
affairs, after a sovereign power of an Indian tribe is stripped by the federal government,
“it is no longer an inherent power and it may only be restored by delegation of
Congress’s power.”260
Nevertheless, the Eighth Circuit interpreted the ICRA
Amendments as a delegation of federal authority: the legislation “allow[s] tribes to
exercise criminal misdemeanor jurisdiction” over non-member Indians.261
258
See Lara, 324 F.3d at 640 (“Congress may not ‘override a constitutional decision by simply rewriting
the history upon which it is based.’”) (quoting United States v. Enas, 255 F.3d 662, 675 (2001)).
259
Id. at 640 (“[T]he ICRA amendments cannot have the effect that they plainly sought to achieve: a
“retroactive legislative reversal of Duro.”).
260
Id. at 639 (“Absent a delegation from Congress, a tribe’s powers are those ‘inherent powers of a limited
sovereignty which has never been extinguished.’”) (quoting United States v. Wheeler, 435 U.S. 313, 322
(1978)).
261
Id. at 640 (“We need not construe the ICRA amendments as a legal nullity . . . It is apparent that
Congress wished to allow tribes to exercise criminal misdemeanor jurisdiction over nonmember Indians.”)
(citing Nevada v. Hicks, 533 U.S. 353, 358-59 (2001)). Notably, had the court of appeals found the ICRA
amendments invalid, the first prosecution by the tribal court would be void for lack of subject matter
jurisdiction and thus, no Double Jeopardy Clause violation would have been effected by the federal
government’s subsequent prosecution of respondent. See Kepner v. United States, 195 U.S. 100, 129
(1904) (double jeopardy case concerning territorial court of the Philippines Islands) (“The [Double
Jeopardy Clause] prohibition is not against being twice punished, but against being twice put in jeopardy;
and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal
before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and
therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.”);
Grafton v. United States, 206 U.S. 377, 391 (1907) (“We assume as indisputable, on principle and
authority, that before a person can be said to have been put in jeopardy of life or limb the court in which he
was acquitted or convicted must have had jurisdiction to try him for the offense charged.”); Serfass v.
United States, 420 U.S. 377, 391 (1975) (“Both the history of the Double Jeopardy Clause and its terms
demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to
try the question of the guilt or innocence of the accused.’”) (quoting Kepner v. United States, 195 U.S. 100,
129 (1904)).
Respondent maintains that all of these cases are distinguishable from the matter at bar or support
respondent’s interpretation of the ICRA Amendments. See Brief of the Respondent at *26-*27, Lara, 2003
WL 23112950 (No. 03-107).
- 44 -
The Eighth Circuit proceeded to find that the Spirit Lake Nation had exercised
valid jurisdiction in prosecuting respondent pursuant to the federal delegation of authority
under the ICRA Amendments.262
Thus, given that the tribe prosecuted defendant
pursuant to federal authority, the federal prosecution violated respondent’s double
jeopardy rights.263
The four dissenting judges interpreted the ICRA Amendments very differently.264
Having surmised that Duro was not a constitutional case, the judges concluded,
“Congress retains legislative authority to determine prospectively what power tribes
inherently possess.”265
According to the dissent, the ICRA amendments effectively
“restored” the tribes’ inherent authority to prosecute non-member Indians.266 While the
Indian tribes’ power to try non-member Indians “had been rendered temporarily
unavailable” by applicable Supreme Court decisions, it is, nevertheless, a “retained”
inherent power.267 In any case, respondent’s double jeopardy rights were not violated
because the ICRA Amendments did not confer federal authority but rather “the full
territorial sovereignty that the tribes possessed in the past.”268
Petitioner argues that the post-Duro ICRA amendments are manifestly a
restoration of the Indian tribes’ inherent sovereign power to try and punish non-member
262 Lara, 324 F.3d at 640.
263 See id. at 639; see also Lara, 324 F.3d 635 (8th Cir. 2003) (en banc), petition for cert. filed, 2003 WL
22428587, at *6, n. 1.
264
Lara, 324 F.3d at 641 (Arnold, J., dissenting) (“Congress restored to the tribes a power that they had
previously exercised but had lost over the years as a result of Supreme Court decisions.”)
265
Id. at 645 (Arnold, J., dissenting).
266
Id. at 641 (Arnold, J., dissenting).
267
Id.
268
See id. at 641 (Arnold, J., dissenting) (citing Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 421-33
(1946) (state tax on insurance company did not violate the dormant commerce clause).
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Indians for violations of tribal law.269 The Amendments cannot be understood as a
delegation of federal power.270
The statute’s text, legislative history and purpose,
petitioner maintains, support this understanding of the ICRA Amendments.271
Respondent acknowledges that the ICRA Amendments purport to restore the
tribes inherent sovereign authority to criminally prosecute non-member Indians.272
However, respondent argues, Duro is a constitutional case.
273
The legislation thus
cannot have the effect it asserts.274 Finding the Eighth Circuit’s reasoning persuasive,
respondent argues that the ICRA Amendments are best interpreted as a federal delegation
of authority so as to “ensure that the spirit of Congress’s intent is followed.”275
The Supreme Court has repeatedly acknowledged Congress’s “plenary and
exclusive power” to regulate Indian affairs pursuant to the Indian Commerce Clause.276
That is, Congress has unparalleled control “over federal common law in general and
Indian affairs in particular to define the scope of inherent Indian sovereignty.”277 As
269
Brief of the Petitioner at *21, Lara, 2003 WL 22811829 (No. 03-107) (“[T]he only sensible
interpretation of the post-Duro amendment, consistent with its text and history, is a restoration of Tribes’
own criminal jurisdiction, not as a delegation of federal criminal jurisdiction to Tribes.”).
270
Id. at *17-*18.
271
Id. at * 18-*19. Petitioner emphasizes the “recognize and affirm” language of the statute as well as the
congressional record. Id. Petitioner notes that “[n]o [m]ember of Congress suggested that the amendment
would have the effect of making Tribes instrumentalities of the United States in the prosecution of nonmembers.” Id. at *19.
272
See Brief of the Respondent at *12, *23, Lara, 2003 WL 23112950 (No. 03-107).
273
Lara, 324 F.3d at 639-40; see Brief of the Respondent at *12, *21, Lara, 2003 WL 23112950 (No. 03107).
274
Lara, 324 F.3d at 640; see Brief of the Respondent at *12, *23-*24, Lara, 2003 WL 23112950 (No. 03107) (“Congress cannot . . . return attributes of sovereignty to the Indian tribes that the Constitution itself
removed.”).
275
Lara, 324 F.3d at 640; see Brief of the Respondent at *24, Lara, 2003 WL 23112950 (No. 03-107).
Notably, respondent fails to reconcile this assertion with the text and legislative history of the ICRA
Amendments. See § 1301(2); see, e.g., H.R. CONF. REP. NO. 102-261, at 3 (1991), reprinted in 1991
U.S.C.A.N. 379, 379 (“The Committee of Conference is clarifying an inherent right which tribal
governments have always held and was never questioned until the recent Supreme Court decision of Duro
v. Reina . . .”).
276
Yakima Indian Nation, 439 U.S. at 470-71; see also Mazurie, 419 U.S. at 554, n.11 (Congress has
“exclusive constitutional authority to deal with Indian tribes.”).
277
Lara, 324 F.3d at 641 (Arnold, J., dissenting).
- 46 -
discussed supra Part VII.B., Duro is not a constitutional case and therefore in enacting
the ICRA Amendments Congress exercised its plenary power.
The text of the ICRA following the 1990 amendments is clear: the statute purports
to “restore and affirm” the inherent sovereign power to prosecute non-member Indians.278
The legislative history also suggests that it was Congress’s intention to “recognize an
inherent tribal right which always existed” in passing the amendment rather than as a
“delegation of authority.”279
Moreover, Congress’s purpose in passing the 1990 ICRA Amendments was to
restore the sovereign power Duro held the Indian tribes had lost.280 The Eighth Circuit’s
conclusion that the ICRA amendments delegated federal power to the tribes to prosecute
misdemeanor crimes would subvert the ICRA Amendments’ law enforcement
objectives.281 Under that interpretation, tribal court prosecution of a non-member Indian
would preclude a subsequent federal prosecution for an offense with the same
elements.282 Thus, this interpretation would frustrate important federal and tribal law
enforcement aims as, regardless of the severity of the offense, § 1302(7) bars tribal courts
from imposing “penalties in excess of $5000 or one year imprisonment.”283 Given tribal
278
25 U.S.C. § 1301(2).
137 Cong. Rec. 10,712-14 (1991) (statement of Rep. Miller). See also H.R. CONF. REP. NO. 102-261, at
3 (1991) (proposed amendment “is not a delegation of this jurisdiction but a clarification of the status of
tribes as domestic dependent nations”); S. REP. NO. 102-168, at 4 (1991) (amendment is intended to
“recognize and reaffirm the inherent authority of the tribal governments to exercise criminal jurisdiction
over all Indians”).
280
See, e.g., H.R. CONF. REP. NO. 102-261, at 6 (1991); see Gould, The Congressional Response to Duro v.
Reina, supra note 47, at 62 (“The [post-Duro] legislation was designed to reverse the Court’s decision in
Duro by formally recognizing tribal authority to try all Indians.”) (concluding that the legislation to be
“inherently racist” and unconstitutional).
281
H.R. CONF. REP. NO. 10-261, at 6 (1991); see Brief of the Petitioner at *19-*20, Lara, 2003 WL
22811829 (No. 03-107).
282
Rutledge v. United States, 517 U.S. 292, 297 (1996) (lesser-included offenses and corresponding
expansive offenses are the “same offense” for purposes of the Double Jeopardy Clause and, therefore, are
prohibited by the Fifth Amendment).
283
25 U.S.C. § 1302(7). Section 1302(7) provides:
279
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prosecution would insufficiently safeguard federal interests, tribal officials would be
required to “wait for federal prosecutors to act against the most egregious reservation
offenders.”
284
Tribal prosecution would foreclose federal prosecution and, thus, the
defendant’s sentence would be limited to the ICRA penalties.285
It is beyond dispute that courts ought to avoid interpreting a statute to be void
whenever possible.286 However, this statutory construction principle does not justify the
court of appeals’ interpretation of § 1301(2) as a delegation of federal power to the
tribes.287 Courts are not permitted to “pervert[] the purpose of a statute . . . or judicially
rewrite[] it” in trying to salvage it from being struck down on constitutional grounds.288
Congress’s purpose in restoring the inherent sovereign authority to prosecute nonmember Indians the Duro decision recognized as stripped is absolutely apparent in the
No Indian tribe in exercising powers of self-government shall –
...
(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no
event impose for conviction of any one offense any penalty or punishment greater than
imprisonment for a term of one year and a fine of $5,000, or both”
Id. Tribal courts may not render punishments that exceed a maximum of one-year imprisonment and a
$5000 fine. Id. Thus, the non-Indian defendant would arguably have a strong incentive to make a plea
agreement with the tribal authority to avoid the potential of significantly more serious punishment that
could result from a federal prosecution. Wheeler, 435 U.S. at 330-31. Also, it is unlikely and
inappropriate to assume that Congress intended to burden federal prosecutors’ efforts to enforce federal
interests in Indian Country. See, e.g., S. REP. NO. 168, 102d Cong., 1st Sess., at 4 (1991) (“U.S. Attorneys,
already overburdened with the prosecution of major crimes, could not assume the caseload of criminal
misdemeanors referred from tribal courts for prosecution of non-member Indians.”); see Brief of the
Petitioner at *21, Lara, 2003 WL 22811829 (No. 03-107); but see Brief of the Respondent at *30, Lara,
2003 WL 23112950 (No. 03-107).
284
United States v. Long, 324 F.3d 475, 483-84 (7th Cir. 2003) (holding that Congress is free to restore
powers it had previously stripped from a tribe); § 1302(7).
285
Long, 324 F.3d at 483-84.
286
Alaska Dep’t of Envtl. Conservation v. E.P.A., 124 S. Ct. 983, 1002 n.13 (2004) (“It is . . . a cardinal
principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (internal citation
marks omitted).
287
Heckler v. Mathews, 465 U.S. 728, 741-42 (1984); Aptheker v. Sec’y of State, 378 U.S. 500, 515
(1964).
288
Heckler, 465 U.S. at 741-42 (internal citation marks omitted).
- 48 -
text, legislative history and congressional purpose of § 1301(2).289 Thus, § 1301(2)
“must stand or fall . . . as a restoration of sovereign power.”290
2. Congress has the authority to restore inherent sovereign powers,
including tribal jurisdiction to prosecute non-member Indians,
previously lost due to their status as a dependent sovereign.291
“Congress has plenary authority to limit, modify or eliminate the powers of local
self-government which the tribes otherwise possess.”292
Thus, for the ICRA
Amendments to have their purported effect of “recogniz[ing] and affirm[ing]” the tribes’
inherent sovereign authority over non-member Indians, the legislation must constitute a
289
George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.) (“A statute must be
construed, if fairly possible, so as to avoid . . . the conclusion that it is unconstitutional . . . But avoidance
of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is
revealed too distinctly to permit us to ignore it because of mere misgivings as to power.”) (internal citation
marks omitted).
290
Brief of the Petitioner at *22, Lara, 2003 WL 22811829 (No. 03-107). See generally, I.N.S. v. St. Cy,
533 U.S. 289, 379 (2001) (Scalia, J., dissenting) (“The doctrine of constitutional doubt is meant to
effectuate, not to subvert, congressional intent, by giving ambiguous provisions a meaning that will avoid
constitutional peril, and that will conform with Congress's presumed intent not to enact measures of
dubious validity. The condition precedent for application of the doctrine is that the statute can reasonably
be construed to avoid the constitutional difficulty.”) (emphasis in original); Miller v. French, 530 U.S.
327,341 (2000) (“And while this construction raises constitutional questions, the canon of constitutional
doubt permits us to avoid such questions only where the saving construction is not plainly contrary to the
intent of Congress.”) (internal citation marks omitted) (emphasis added).
291
Amici Idaho, Alabama, Louisiana, Nebraska, South Dakota and Utah urge the court not to address
whether Congress has the power to restore an inherent sovereign power. Brief of Amicus Curiae of the
States of Idaho, Alabama, Louisiana, Nebraska, South Dakota and Utah Supporting Petitioner in Part at
*12-*17, United States v. Lara, 2003 WL 22766744 (Nov. 14, 2003)(No. 03-107). Amici maintain that the
Court need not reach the constitutional issue. Id. One possibility is that respondent will prevail because the
Court will find the ICRA Amendments to be an invalid attempt to override a constitutional decision. Id.
Alternatively, respondent will lose regardless of whether the post-Duro legislation is interpreted to validly
restore inherent prosecutorial authority or if the ICRA Amendments are interpreted as an invalid
restoration. See id. at *12-*18 (text and legislative history make clear that “Congress consciously
attempted to confer inherent authority, and not to delegate federal power.”). Amici, thus, assert that there is
no need to address whether Congress has authority to restore otherwise unavailable tribal inherent powers.
See id. (amici argues, however, that should the Court reach the issues the Indian Commerce Clause does
not authorize Congress to restore the Indian tribes’ inherent sovereign authority to prosecute non-member
Indians). However, Amici fail to realize that should the Court reach the issue of whether the ICRA
Amendments “restore and reaffirm” the tribes’ prosecutorial authority over non-members, this Court must
still consider whether Congress is so authorized. Duro, 495 U.S. at 686 (congressional action taken
pursuant to the plenary power is “subject to the constraints of the Constitution”); United States v. Alcea
Band of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion) (“The power of Congress over Indian
affairs may be of a plenary nature; but it is not absolute.”).
292
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (plenary power authorized Congress to
“impose[] certain restrictions” on tribal courts similar to the protections of the Bill of Rights); South
Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) (“Congress possesses plenary power over Indian
affairs, including the power to modify or eliminate tribal rights.”); Kagama, 118 U.S. at 378-81.
- 49 -
valid exercise of congressional power.293 That is, congressional plenary control must
permit Congress to restore Indian tribes’ sovereign powers otherwise unavailable to the
tribes on account of their dependent status.294
The Ninth Circuit found that Congress may restore sovereign powers of the Indian
tribes pursuant to the plenary power.295 Congress, held the Enas court, is authorized to
restore sovereign powers: “within the realm of federal common law and the federal
common law of tribes-Congress is supreme.”296
Thus, in enacting the ICRA
Amendments, Congress successfully reinstated the tribes’ sovereign power found by the
Duro decision to have been stripped.297
The Eighth Circuit concluded that Congress does not have the power to restore
the sovereign power removed from the tribes by the Duro decision: once a tribal
sovereign power is divested by the federal government that power ceases to be “an
inherent and . . .
may only be restored by delegation of Congress’s power.”298
Conversely, the Lara dissent found that although the Indian tribes’ power to try nonmember Indians “had been rendered temporarily unavailable” by applicable Supreme
Court decisions, it is, nevertheless, a “retained” inherent power.299
293
See 25 U.S.C. § 1301(2).
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, 476 U.S. 877, 891 (1986) (stating
that all “aspect[s] of tribal sovereignty . . . [are] subject to plenary federal control and definition.”);
Wheeler, 435 U.S. at 327; see also Enas, 255 F.3d at 670.
295
Enas, 255 F.3d at 670.
296
Id. at 675 (citing Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).
297
Id. (“We conclude that Congress had the power to determine that tribal jurisdiction over nonmember
Indians was inherent.”).
298
Lara, 324 F.3d at 640. The Eighth Circuit cited Wheeler for the proposition that as dependent
sovereigns, the tribes’ inherent sovereign powers are those “which have never been extinguished.” Id.
(quoting United States v. Wheeler, 435 U.S. 313, 322 (1978)). Notably, however, the Eighth Circuit’s
interpretation is flawed. The Lara court fails to explain why this reasoning would not also apply to other
sovereigns conquered by the United States, such as Iraq, Japan, Germany and the Philippines.
299
Id. at 641 (Arnold, J., dissenting). The dissent further reasoned:
The basic question in this case is whether providing tribes with the inherent power to try
nonmember Indians for crimes falls within Congress's plenary authority over Indian affairs (which
294
- 50 -
Petitioner argues that Congress restored Indian tribes’ inherent sovereign power to
prosecute non-member Indians.300
The Supreme Court, maintains petitioner, has
recognized Congress’s power to expand and contract inherent sovereign powers.301 In
opposition, respondent maintains Congress may not reinstate inherent sovereign powers
necessarily ceded at the time the Indian tribes submitted to the overriding authority of the
federal sovereign.302 Accordingly, respondent argues, the ICRA Amendments merely
delegated federal power to tribal courts.303
Congress’s “plenary and exclusive”304 authority in the sphere of Indian affairs
permits Congress to eliminate impediments to tribes’ exercise of tribal powers.305
Indeed, the Supreme Court has repeatedly recognized congressional action may enable
the [majority] agrees that Congress has). In light of the Supreme Court pronouncement that all
"aspect[s] of tribal sovereignty ... [are] subject to plenary federal control and definition," . . . it
seems to me that the only possible answer to that question is that Congress can do what it quite
plainly sought to do here.
Id. at 646 (quoting Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 891
(1986)) (federal law preempted North Dakota statute that conditioned tribes’ ability to bring civil action in
state court on waiver of their sovereign immunity).
300
Brief of the Petitioner at *23, Lara, 2003 WL 22811829 (No. 03-107). Petitioner states that because it is
Congress’s “‘power and . . . duty . . . to exercis[e] a fostering care and protection over all dependent Indian
communities,’” Congress is authorized to restore tribes’ sovereign powers previously stripped by the
federal sovereign. Id. (quoting United States v. Sandoval, 231 U.S. 28 (1913)). By enacting the ICRA
Amendments and permitting tribes to criminally prosecute non-member Indians for crimes perpetrated on
tribal lands pursuant to its sovereign authority, Congress provided needed “protection” to tribal
communities. Id.
301
See, e.g., Mazurie, 419 U.S. at 556-57 (Congress may permit Indian tribes to exercise jurisdiction
otherwise unavailable to tribes due to their dependent status: “the independent tribal authority is quite
sufficient to protect Congress’s decision to vest in tribal councils this portion of its own authority” pursuant
to the Indian Commerce Clause).
302
South Dakota v. Bourland, 508 U.S. 679, 695 n.15 (1993). Respondent asserts that the “Constitution,
not Congress, divested the Indian tribes of inherent authority to try non-member Indians.” Brief of the
Respondent at *24, Lara, 2003 WL 23112950 (No. 03-107). This assertion is not developed at length;
respondent notes only that “Congress cannot restore those principles of inherent sovereignty which were
necessarily lost by the tribe’s submission to overriding federal authority.” Id.
303
See Bourland, 508 U.S. at 695 n.15; Brief of the Respondent at *15, Lara, 2003 WL 23112950 (No. 03107).
304
Yakima Indian Nation, 439 U.S. at 470-71. In Morton v. Mancari, 417 U.S. 535, 551-52 (1974), the
Supreme identified that this extremely broad authority is “drawn both explicitly and implicitly from the
Constitution itself.” Morton, 417 U.S. at 551-52. (citing Article I, § 8, cl. 3 and Article II, § 2, cl. 2).
305
E.g., Montana v. United States, 450 U.S. 544 (1981); Mazurie, 419 U.S. 544; see also Oliphant, 435
U.S. at 210 (“By submitting to the overriding sovereignty of the United States, Indian tribes therefore
necessarily give up their power to try non-Indian citizens of the United States except in a manner
acceptable to Congress.”) (emphasis added).
- 51 -
tribes to exercise jurisdiction over non-members otherwise unavailable to the tribes.306
This broad power allows Congress to restore Indians’ inherent sovereign powers: “the
fact that Congress enabled the tribes to exercise inherent sovereign power ‘does not mean
that Congress is the source of that power.’”307
In Montana v. United States, the Supreme Court held that Congress may authorize
tribes to exercise regulatory authority over fishing and hunting activities undertaken by
non-Indians on land owned by non-Indians located within the boundaries of an Indian
reservation.308 While the Court concluded that this regulatory authority was inconsistent
with tribes’ dependent status,309 it nonetheless found that an “express congressional
delegation” would mean tribes could wield that regulatory authority.310 The Supreme
Court has recognized Congress’s ability to restore powers to the Indians tribes the Court
had deemed outside the scope of inherent sovereign authority.311 Similarly, in Mazurie,
the Court held that Congress had the power to delegate its legislative power to Indian
306
Brief of the Respondent at *13-*14, Lara, 2003 WL 23112950 (No. 03-107).
Enas, 255 F.3d at 679 (quoting United States v. Wheeler, 435 U.S. 313, 328 (1978)); see also Gould,
The Congressional Response to Duro v. Reina, supra note 47, at 80 (“To the extent the Court continues to
recognize John Marshall’s concept of inherent sovereignty, Congress can recognize or limit tribal rights
without violating the Constitution even if it recognizes or confers fewer rights than a delegation of
authority might require under the Equal Protection Clause.”).
308
Montana, 450 U.S. at 564-65 (recognizing “the general proposition that the inherent sovereign powers
of the Indian tribe do not extend to the activities of non-members of the tribe.”). Accord Bourland, 508
U.S. at 695 n.15 (“[A]fter Montana, tribal sovereignty over non-members ‘cannot survive without express
congressional delegation,’ and is therefore not inherent.”) (quoting Montana v. United States, 450 U.S. 544,
564 (1990)).
309
That is, the challenged regulatory scheme exceeded “what is necessary to protect tribal self-government
or to control internal relations.” Montana, 450 U.S. at 564.
310
Id.
311
See, e.g., Nevada v. Hicks, 533 U.S. 353, 358-59, 364-66 (2001) (tribal courts may not adjudicate § 1983
causes of action absent congressional action); Bourland, 508 U.S. at 695 (tribal courts may not regulate
hunting and fishing on land taken by the federal government via treaty absent congressional action);
Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (tax levied by tribe on hotel owned by non-Indian
and located within reservation but on land held in fee by non-Indian deemed inconsistent with Montana
principle; impermissible absent congressional action). Respondent maintains that absent a congressional
delegation of power, tribes’ inherent sovereign powers do not extend to criminal jurisdiction over nonmember Indians. Brief of the Respondent at *12-*15 Lara, 2003 WL 23112950 (No. 03-107) (citing, e.g.,
Nevada v. Hicks, 533 U.S. 353, 358-59 (2001)); id. (citing Atkinson Trading Co. v. Shirley, 532 U.S. 645
(2001)).
307
- 52 -
tribes to allow them to regulate alcohol in tribal communities, an area of significant
federal oversight.312
Significantly, the use of the term “delegation” in Supreme Court case precedent
does not suggest that power is federal in nature. In Montana and Mazurie, the Supreme
Court did not expressly consider the distinction between federally delegated and retained
tribal sovereign power.313 Moreover, Congress can restore federal recognition of an
Indian tribe “‘the inherent sovereign power it took from them’” in the past.314
Any doubt that Congress lacks adequate power to restore inherent sovereign
rights to the Indian tribes is erased by Congress’s authority to reinstate federal
312
See Mazurie, 419 U.S. at 556-57; Rice, 463 U.S. at 722 (citing United States v. Mazurie, 419 U.S. 544,
557 (1975), and noting that liquor regulation was one of the most wide-ranging areas of federal oversight of
the tribes).
313
Brief of the Petitioner at *25, Lara, 2003 WL 22811829 (No. 03-107) (“The Court’s use of the term
“delegation in Montana, Mazurie, and other cases does not imply that a power exercised by Tribes as a
result of congressional action can only be a federal power. Those cases did not turn on any distinction
between restored tribal and delegated federal power”). Likewise, neither Bourland nor Hicks turned on
whether Congress could restore inherent sovereign power to the tribe or merely delegated federal authority.
See Bourland, 508 U.S. 679; Hicks, 533 U.S. 353; but cf. Archambault, 2001 WL 1297767, at *3 (decision
hinged upon whether the ICRA Amendments delegated federal authority or if they validly restored inherent
sovereign tribes’ power to prosecute non-member Indians).
314
Brief of the Petitioner at *25 n.6, Lara, 2003 WL 22811829 (No. 03-107) (quoting United States v.
Long, 324 F.3d 475, 483 (7th Cir. 2003), cert. denied, No. 02-1801, 124 S. Ct. 151 (2003)). Respondent
takes issue with petitioner’s reliance on United States v. Long as an example of judicial recognition that
Congress is able to restore tribes’ inherent rights. Brief of the Respondent at *13 n.4, Lara, 2003 WL
23112950 (No. 03-107) (citing United States v. Long, 324 F.3d 475, 483 (7th Cir. 2003), cert. denied, 124
S. Ct. 151 (Oct. 6, 2003)). Respondent argues that in Long, the Court of Appeals for the Seventh Circuit
held only that Congress could restore tribal authority it had previously divested from the tribe. Id. Hence,
urges respondent Long is distinguishable from this case where the ICRA Amendments purport to restore a
“new ‘inherent right[]’” to tribes. Id. Respondent is correct that the Seventh Circuit explicitly
distinguished Long, decided four days before Lara, from the issue addressed by Enas and Weaselhead.
Long, 324 F.3d at 482-83 (“[O]ur case does not involve the same question before the Ninth Circuit in
United States v. Enas and the Eighth Circuit in United States v. Weaselhead. In Enas and Weaselhead, the
issue was whether Congress could create inherent sovereign inherent powers that the Supreme Court had
earlier concluded Indian tribes did not possess . . . [o]ur case does not involve creation of any new
‘inherent’ rights.”) (internal citations omitted) (emphasis in original). Even assuming arguendo the
Seventh Court’s dubious distinction, Long nevertheless speaks to the breadth Congress’s power in Indian
affairs. See id. at 482-84. Moreover, the Seventh Circuit fails to explain why Congress would only be able
to “undo by legislation that which it had accomplished by legislation” and not to exercise its plenary power
to override Duro, a federal common law decision. See id. at 479-84. Indeed, the Long court notes: “[a]s
the Court’s partner in setting the boundaries of retained tribal authority, Congress enjoys plenary powers
over Indian affairs.” Id. at 479.
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recognition of an Indian tribe.315 Following reinstatement of an Indian tribe’s federally
recognized status, a tribe prosecutes its members for tribal code offenses pursuant to its
inherent sovereign authority.316 Subsequent federal prosecution for a crime with the
same elements, therefore, does not violate a defendant’s double jeopardy rights.317
Lastly, Congress’s authority to restore sovereign powers outside the Indian affairs
context further underscores the breadth of congressional authority.318
For example,
dormant commerce clause jurisprudence makes clear that Congress may “‘authorize state
regulations that burden or discriminate against interstate commerce.’”319
Similarly,
where Congress approves state compacts otherwise barred by the Interstate Compact
Clause,320 these compacts are implemented pursuant to the sovereign power of the
states.321 In instances where Congress authorizes states to prosecute Indians, the state
prosecutions are carried out pursuant to the state’s sovereign capacity.322 Congress may
also recognize territories’ full sovereignty, as well as sovereign powers the territory did
315
See, e.g., 25 U.S.C. § 903-903(f) (reinstating federal recognition of the Menominee Tribe, along with,
“all rights and privileges of the tribe or its members under Federal treaty, statute, or otherwise may have
been diminished or lost pursuant to” the Menominee being previously stripped of federal recognition.); see
Long, 324 F.3d at 482 (“[W]e have no doubt about [the validity of] congressional power to recognize an
ancient group of people for what they are.”).
316
See Long, 324 F.3d at 483 (“Congress had the power to undo by legislation that which it had
accomplished by legislation – restoring to the Menominee the inherent sovereign power that it took from
them in 1954.”).
317
See id.
318
Significantly, Congress’s plenary authority in these contexts is perhaps more textually inhibited than in
the sphere of Indian affairs. E.g., U.S. CONST., amend. X; U.S. CONST. art. IV, § 3.
319
Wheeling & Belmont Bridge Co., supra at note 47 (negative commerce clause consent doctrine permits
Congress to alter Article III courts’ issuance of prospective injunctive relief in certain circumstances); see
also Hillside Dairy Inc. v. Lyons, 123 S. Ct. 2142, 2147 (2003) (California’s milk pricing regulations are
subject to constitutional scrutiny pursuant to the Commerce Clause; congressional authorization of state
laws and regulations must be unambiguous).
320
U.S. CONST. art I, § 10, cl. 3 (“No State shall, without Consent of Congress...enter into any Agreement
or Compact with another State . . . ”).
321
See Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 319, 398-400 (1979) (interstate agency formed pursuant to interstate compact approved by Congress constitutes “state action” for
purposes of 42 U.S.C. § 1983).
322
State v. Marek, 736 P.2d 1314, 1319-20 (Idaho 1987) (“[I]t is clear that under the literal language of
P.L. 280, a portion of the ‘absolute jurisdiction and control of the congress of the United States’ was ceded
with respect to certain criminal offenses to the states, as the states might assume ‘by affirmative legislative
action.’”); see 18 U.S.C. § 1162.
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not previously enjoy as an independent nation.323 Given that Congress can reinstate and
reaffirm sovereign powers of foreign nations, it follows that Congress has the power to
restore the tribes’ authority to prosecute non-member Indians.324 Indeed, Congress or the
President and two-thirds of the Senate, could arguably recognize the full independence of
a tribe.325
Unlike the explicit boundaries of state and federal sovereignty set forth in the
Constitution,326 no such limitations exist in the sphere of tribal sovereignty:
“the
Constitution is simply silent” on the issue of Indian tribes’ inherent sovereignty.327
Thus, in interpreting the ICRA Amendments, it is paramount that “all ‘aspect[s] of tribal
sovereignty . . . [are] subject to plenary federal control and definition.’”328 There can be
no doubt given the statute’s text, legislative history and purpose that Congress intended to
reinstate Indian tribes’ inherent sovereign authority over non-member Indians.329
323
See, e.g., 22 U.S.C. § 1394 and Proclamation No. 2695, 60 Stat. 1352 (restoring and supplementing the
sovereignty of former-United States territory the Philippine Islands).
324
Brief of the Petitioner at *33-*34, Lara, 2003 WL 22811829 (No. 03-107).
325
Cf. Lazore v. C.I.R., 11 F.3d 1180, 1182 (3rd Cir. 1993) (“[I]n Holden v. Joy, 84 U.S. 211, (1872), the
Court affirmed that treaties with Indian nations are to be treated the same as treaties with other nations,
despite the unique status occupied by Indian nations vis-a-vis the United States.”); Holden v. Joy, 84 U.S.
211, (1872) (determining validity of treaty granting the Cherokee Indian tribe title to land west of the
Mississippi River and finding that while the treaty power is not limited by subject matter, treaties must not
violate the constitution). Although the Supreme Court later adopted a distinct set of rules for interpreting
treaties with the Indian nations following the Holding decision, the fact that Indian treaties are interpreted
differently does not limit the subject matter of the treaties. See Lazore, 11 F.3d at 1182 (citing Choate v.
Trapp, 224 U.S. 665, 671 (1912)) (the special rules for interpreting Indian treaties “stem largely from the
unique nature of the relationship between the Indian nations and the United States.”); see generally State of
Missouri v. Holland, 40 S. Ct. 382, 383 (1920) (Holmes, J.) (the Article II treaty power is broad and limited
only by the Constitution; treaties may not alter the structure of government). See also note 319 infra and
accompanying text.
326
E.g., U.S. CONST. amend. X.
327
United States v. Weaselhead, 156 F.3d 818, 825 (Arnold, J., dissenting). Thus, respondent’s analogy to
the Constitutional limits on Congress’s plenary power in the sphere of, for instance, interstate commerce is
markedly misplaced. Brief of the Respondent at *21, Lara, 2003 WL 23112950 (No. 03-107). There is
simply no mention of Indian sovereignty in the text of the Constitution; see U.S. CONST.
328
Lara, 324 F.3d at 646 (quoting Three Affiliated Tribes of For Berthold Reservation v. Wold Eng’g, 476
U.S. 877, 891 (1986)).
329
See Enas, 255 F.3d at 664 (“[U]nder the 1990 amendments to the Indian Civil Rights Act, Indian tribes
prosecute non-member Indians pursuant to their inherent power.”) (emphasis added); Felix S. Cohen,
HANDBOOK OF FEDERAL INDIAN LAW at 231 (Michie 1982) (“Perhaps the most basic principle of all Indian
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Congress’s power is clearly plenary in the field of Indian affairs and authorizes Congress
to “restore and reaffirm” inherent sovereign rights otherwise unavailable to the tribes.330
D.
THE DUE PROCESS CLAUSE
DOES NOT BAR CONGRESSIONAL
RECOGNITION OF THE TRIBES’ INHERENT SOVEREIGN RIGHT TO
CRIMINALLY PROSECUTE NON-MEMBER INDIANS.
Unlike race, an “immutable characteristic,”331 membership in a federally
recognized Indian tribe is voluntary.332 The Supreme Court has repeatedly held that
Congress is permitted to legislate in a manner that treats members of Indian tribes
distinctly because statutes of that nature are not “impermissible racial classifications” but
are founded on the “unique status of Indians as ‘a separate people’ with their own
political institutions.”333 Laws singling out Indians, therefore, need only be rationally
related “to the fulfillment of Congress’ unique obligation toward the Indians” to
withstand challenge under the Fifth Amendment’s equal protection and due process
guarantees.334
Petitioner argues that the ICRA Amendments violate neither the equal protection
nor due process guarantees of the Fifth Amendment.335 Petitioner argues that in restoring
law . . . is that those powers which are lawfully vested in an Indian tribe are not, in general, delegated
powers granted by express acts of Congress, but rather ‘inherent powers of a limited sovereignty which has
never been extinguished.’”) (emphasis added) (quoting United States v. Wheeler, 435 U.S. 313, 322-23
(1978)).
330
See Enas, 255 F.3d at 664; see also Nell Jessup Newton, Permanent Legislation to Correct Duro v.
Reina, 17 AM. INDIAN L. REV. 109, 119 (1992) (“[I]t is hard to see how the Court could with any honesty
interpret the law as a delegation to the tribes rather than as a reaffirmation of a power that tribes already
have.”) (arguing that the 1990 ICRA Amendments validly recognized the Indian tribes’ inherent sovereign
power to prosecute non-member Indians).
331
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (Brennan, J.).
332
Brief of the Petitioner at *35, Lara, 2003 WL 22811829 (No. 03-107) (citing Duro v. Reina, 495 U.S.
676, 694 (1990)).
333
United States v. Antelope, 430 U.S. 641, 646-47 (1977).
334
Morton, 417 U.S. at 555. This standard applies equally to legislation conveying, “benefits or burdens”
on members of a tribe according to petitioner. United States v. Antelope, 430 U.S. 641, 644, 647 n.8
(1977); Fisher v. District Court, 424 U.S. 382 (1976).
335
See Brief of the Petitioner at *34-*43, Lara, 2003 WL 22811829 (No. 03-107). Neither the Ninth
Circuit nor the Eighth Circuit Courts of Appeal considered whether § 1301(2) was barred by the due
process guarantee of the Fifth Amendment. See Lara, 324 F.3d 635; see Enas, 255 F.3d 662.
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tribes’ inherent sovereign power to criminally prosecute non-member Indians, § 1301(2)
is rationally related to Congress’s “unique obligation toward Indians.”336 Therefore,
petitioner maintains, by subjecting all members of federally recognized Indian tribes to
the jurisdiction of all tribal courts, § 1301(2) does not offend the equal protection or the
due process guarantees of the Fifth Amendment.337
Respondent maintains that
prosecutions undertaken pursuant to § 1301(2) violate the constitutional rights of nonmember defendants: such criminal jurisdiction amounts to “an unwarranted intrusion into
their personal liberty.”338
This question is not properly before the Court. Respondent failed to assert that
any of his rights under the ICRA were denied during the Spirit Lake Nation tribal
prosecution.339 Nor did respondent seek a writ of habeas corpus.340 To the contrary,
respondent urges the Court to find that § 1301(2) validly conferred authority such that
336
Morton, 417 U.S. at 555.
Brief of the Petitioner at *38, Lara, 2003 WL 22811829 (No. 03-107). Petitioner states that the ICRA
does not violate constitutional equal protection guarantees. First, § 1301(2) promotes tribes’ selfgovernment by permitting tribal courts to try and punish member and non-member Indians for criminal
offenses perpetrated on tribal land. Brief of the Petitioner at *36-*37, Lara, 2003 WL 22811829 (No. 03107). Second, § 1301(2) closes the “jurisdictional void” created by Duro and, therefore, serves rational
public safety and law enforcement ends. Id. at *38.
Furthermore, petitioner maintains § 1301(2) does not violate the Fifth Amendment’s due process
guarantees. Id. at *38-*43. Petitioner acknowledges that the ICRA does not furnish all of the protections
of the Bill of Rights, such as, for instance, the appointed counsel provision of the Sixth Amendment. Cf.
137 CONG. REC. at 9445 (1991) (statement of Senator Inouye) (“[F]ree counsel is provided to indigent
defendants by the Ute court and by many tribal courts elsewhere.”). Significantly, however, the ICRA
confers the most fundamental guarantees of the Fourth, Fifth, Sixth and Eighth Amendments, as well as
more general due process and equal protection rights. See § 1302. Thus, petitioner argues, it is reasonable
for Congress to conclude that tribal prosecution sufficiently safeguards non-member Indians’ civil liberties,
especially given the availability of federal habeas corpus review to individuals incarcerated by tribal courts.
Id. at *39, *42.
338
See Duro, 495 U.S. at 692 (quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210); id.
(“[W]hatever might be said of the historical record, we must view it in light of petitioner’s status as a
citizen of the United States.”). Notably, respondent does not argue that either the due process or equal
protection guarantees of the Fifth Amendment bar Congress from delegating federal authority to the tribes
to criminally prosecute non-member Indians. Brief of the Respondent at *26, Lara, 2003 WL 23112950
(No. 03-107).
339
Brief of the Petitioner at *43, Lara, 2003 WL 22811829 (No. 03-107).
340
Id.
337
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jeopardy attached to respondent’s prosecution by the Spirit Lake Nation tribal court.341
The possibility that another tribal court could prosecute another non-member Indian in
violation of the due process clause does not warrant the Court striking down a statute as
facially unconstitutional.342
VIII.
CONCLUSION
The Eighth Circuit Court of Appeals erred in holding that the ICRA Amendments
did not restore the sovereign authority of the tribes to prosecute non-member Indians.
First, Duro v. Reina is a federal common law case and, hence, is subject to congressional
correction. Second, in enacting § 1301(2) to override Duro, Congress had the authority
to restore the Indian tribes’ inherent sovereign power to prosecute non-member Indians.
Given that the tribal prosecution was conducted pursuant to tribal sovereign power and
the subsequent federal prosecution exercised federal authority, the dual sovereignty
doctrine applies. Therefore, being subject to successive Spirit Lake Nation and federal
prosecutions did not violate respondent’s rights under the Double Jeopardy Clause.
In any case, respondent’s double jeopardy rights have not been violated. The
Eighth Circuit’s interpretation of the ICRA Amendments as delegating Indian tribe
jurisdiction to prosecute non-member Indians for misdemeanor offense is erroneous.
This understanding is contrary to the text, legislative history and purpose of the statue.
Thus, if the court were to find the ICRA Amendments could not override Duro it ought to
be struck down altogether as constitutionally infirm. The Spirit Lake Nation tribal court
341
See Lara, 324 F.3d at 641; see also Brief of the Respondent at *26, Lara, 2003 WL 23112950 (No. 03107).
342
Mazurie, 419 U.S. at 558 n.12.
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would have prosecuted respondent without jurisdiction and, hence, the federal
government is free to prosecute respondent for the same offense.
The judgment of the Court of Appeals for the Eighth Circuit dismissing
respondent’s federal indictment should be reversed.
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