U.S. v. Lara, Billy Jo (04/19/2004)

Questions presented: Whether Section 1301, as amended, of the Indian Civil Rights Act of 1968, 25 U.S.C. 1301, validly restores an Indian tribe's sovereign power to prosecute members of other tribes, such that a federal prosecution following a tribal prosecution for an offense with the same elements is valid under the Double Jeopardy Clause of the 5th Amendment.

BY MANDY MORGAN, MEDILL NEWS SERVICE

Billy Jo Lara punched the police officer. Even he admits it. The officer had just reminded Lara, an Indian, but not a member of the Spirit Lake Nation, that there was an order forbidding him to set foot on the Spirit Lake Nations reservation.

The Bureau of Indian Affairs police officer had arrested Lara for drinking on the North Dakota reservation where alcohol is forbidden.

Two days later, on June 15, 2001, Lara pleaded guilty in tribal court to three violations of the Spirit Lake Tribal Code: public intoxication, resisting lawful arrest and violence to a police officer. He was sentenced to 155 days of jail, 90 of which he served for assaulting a tribal officer.

In August 2001, while serving the prison sentence issued by the tribal court, Lara was indicted in a federal North Dakota district court for assaulting a federal officer.

The charge would become the thorn in the side of everyone involved in the case.

Since the police officer wore two hats, one as an employee of a federal bureau and another as an employee of a tribal reservation, Lara was prosecuted twice for the same crime first in a tribal court and then in a federal court.

"When he [Lara] punched one person one time, [its as if] he committed two crimes," said Alex Reichert, Lara's attorney.

Reichert said that Lara's two prosecutions were a denial of his clients 5th Amendment right of protection against double jeopardy: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb."

But the district court disagreed, ruling that when the laws of multiple sovereign nations are violated, an individual can be prosecuted more than once for the same crime. The court considered the tribal government and the federal government two separate and sovereign powers.

Lara conditionally pleaded guilty, reserving the right to invoke double jeopardy. His goal became to prove that he had violated the laws of a tribal entity that draws its power from a single sovereign source the United States.

In June 2002, an 8th Circuit Court of Appeals panel affirmed. Almost a year later, on March 24, 2003, the 8th Circuit, sitting en banc in reconsideration of the case, voted 7-4 to vacate the earlier panel judgment, stating that Indian tribes cannot prosecute nonmember Indians.

The reversal went against a 1991 Congressional amendment to the Indian Civil Rights Act (ICRA) that allowed tribes to bring charges against Indians of other tribes.

Instead of abiding by the amended legislation, the 8th Circuit majority relied on the 1990 U.S. Supreme Court opinion in Duro v. Reina that held that Indian tribes were not permitted to prosecute nonmember Indians. It was the Duro opinion that the 1991 ICRA amendment was expressly intended to counteract. The amendment revised the definition of "powers of self-government" under the ICRA to include "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians."

Lara, an Indian who had committed a crime on another tribes land, became the center of a battle between interpretations of a Supreme Court opinion and a Congressional act. In other words, should Lara's fate be decided by constitutional law or federal common law?

"[W]e conclude that the distinction between a tribes inherent and delegated powers is of constitutional magnitude and therefore is a matter ultimately entrusted to the Supreme Court," wrote Judge Roger L. Wollman in his majority opinion for the 8th Circuit.

"Congresss broad authority over Indian affairs derives from and is limited by the Constitution," Wollman explained.

Wollman concluded that because Congress was legislating on the extent of jurisdiction the tribes were allowed to have, it was delegating power to them.

"Lara was necessarily prosecuted pursuant to that delegated power," Wollman wrote.

Wollman concluded that the delegation of power to tribal authorities ultimately derives from the government of the United States. Since this ultimate and single source of sovereignty was prosecuting Lara, he could not be tried by both tribal and federal courts for the same crime.

"Tribes are separate sovereigns, but are also wards of the government," Reichert said. "We the United States are the protectors of the Indian tribes."

In his dissent, Judge Morris Sheppard Arnold said Congress had a right to legislate in the aftermath of the Supreme Court decision because defining the extent of Indian sovereignty is in the realm of federal common law.

Arnold also made clear that Congress was not "delegating," but "restoring" inherent power that tribes "had previously exercised, but had lost over the years as a result of Supreme Court decisions."

In prosecuting Lara, the Spirit Lake Nation was using inherent, not delegated power, he explained.

"Indian tribes possessed criminal jurisdiction over nonmember Indians as part of their full territorial sovereignty prior to colonization by us or our European predecessors," Arnold argued.

In its petition to the Supreme Court, the U.S. through Solicitor General Theodore Olson added that "the scope of tribal sovereignty is defined by federal common law as informed by the backdrop of federal treaties and statutes, not by the Constitution, and thus may be modified by Congress in the exercise of its plenary authority over Indian affairs."

Olson also noted that a case similar to Laras in the 9th Circuit conflicts with the 8th Circuits decision.

"Because the vast majority of the Nations Indian country lies within the Eighth and Ninth Circuits, together with the Tenth Circuit, there is particular reason for the Court to resolve the conflict," Olson wrote.

On Sept. 30, 2003, one week before the start of the 2003-04 term, the Court accepted review in the case and allowed Lara to have his case heard without court costs.

Because the ICRA limits punishment greater than imprisonment for one year and a fine of $5,000, or both, some Indians are afraid a victory for Lara would lessen their ability to properly prosecute crimes.

An article by the Tribal Law and Policy Institute states: "If the U.S. Supreme Court were to decide to uphold the 8th Circuits misguided en banc decision in U.S. v. Lara, it would greatly impair the ability of both tribal and federal systems to effectively respond to crimes in Indian country.

"[I]t would have a devastating impact for victims of crime throughout Indian country."

But Reichert doesnt foresee such negative consequences.

"What I think its going to do is force more cooperation between U.S. attorneys, tribal prosecutors and tribal courts," Reichert said in an October Indianz.com article. "It will force the federal authorities to take a close look at tribal courts and tribal jurisdiction."