''United States v. Lara'', 541 U.S. 193 (2004), was a
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
landmark case
Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly u ...
which held that both the United States and a
Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in both jurisdictions. The Court held that the United States and the tribe were separate
sovereigns; therefore, separate tribal and federal prosecutions did not violate the
Double Jeopardy Clause
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: ''" r shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."'' The four essential protections included a ...
.
In the 1880s,
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
passed the
Major Crimes Act
The Major Crimes Act (U.S. Statutes at Large, 23:385)[felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...](_blank)
crimes. In 1990, the Supreme Court ruled in ''
Duro v. Reina
''Duro v. Reina'', 495 U.S. 676 (1990), was a United States Supreme Court case in which the Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their re ...
'' that an Indian tribe did not have the authority to try an Indian criminally who was not a member of that tribe. The following year, Congress passed a law that stated that Indian tribes, because of their inherent
sovereignty
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
, had the authority to try non-member Indians for crimes committed within the tribe's territorial jurisdiction.
The defendant, Billy Jo Lara, was charged for acts that were criminal offenses under both the
Spirit Lake Sioux Tribe's laws and the federal
United States Code
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
. Lara pleaded guilty to the tribal charges, but claimed
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
against the federal charges. The Supreme Court ruled that double jeopardy did not apply to Lara since "the successive prosecutions were brought by separate and distinct sovereign bodies".
Background
History
![SpiritLakeRes1892](https://upload.wikimedia.org/wikipedia/commons/8/85/SpiritLakeRes1892.png)
The
Sioux people
The Sioux or Oceti Sakowin (; Dakota: /otʃʰeːtʰi ʃakoːwĩ/) are groups of Native American tribes and First Nations peoples in North America. The modern Sioux consist of two major divisions based on language divisions: the Dakota and ...
consist of three main groups, the
Lakota
Lakota may refer to:
*Lakota people, a confederation of seven related Native American tribes
*Lakota language, the language of the Lakota peoples
Place names
In the United States:
*Lakota, Iowa
*Lakota, North Dakota, seat of Nelson County
*Lakota ...
in the west, the
Western Dakota in the center, and the
Eastern Dakota
The Dakota (pronounced , Dakota language: ''Dakȟóta/Dakhóta'') are a Native American tribe and First Nations band government in North America. They compose two of the three main subcultures of the Sioux people, and are typically divided into ...
in the east. In the east, the Santee was originally from the
Minnesota
Minnesota () is a state in the upper midwestern region of the United States. It is the 12th largest U.S. state in area and the 22nd most populous, with over 5.75 million residents. Minnesota is home to western prairies, now given over to ...
area. The
Chippewa or Ojibwe people were also from the same general area. The two tribes had been at war from at least 1736 and by 1750 the Chippewa had forced the Santee to the west into the prairie. The war between the tribes continued until at least the 1850s. Only after 1862, when the Santee rose up against the whites and were subsequently removed to the
Dakota Territory
The Territory of Dakota was an organized incorporated territory of the United States that existed from March 2, 1861, until November 2, 1889, when the final extent of the reduced territory was split and admitted to the Union as the states of No ...
, did the fighting cease. In 1872, the Sisseton and Wahpeton bands of the Santee signed a treaty that resulted in their moving to the Spirit Lake Reservation.
Major Crimes Act
![CrowDog&Horse1898](https://upload.wikimedia.org/wikipedia/commons/9/97/CrowDog%26Horse1898.jpg)
Originally, crimes committed by Indians against Indians were not subject to federal or state jurisdiction, but were handled by tribal law. In 1881, a
Brulé
The Brulé are one of the seven branches or bands (sometimes called "sub-tribes") of the Teton (Titonwan) Lakota American Indian people. They are known as Sičhą́ǧu Oyáte (in Lakȟóta) —Sicangu Oyate—, ''Sicangu Lakota, o''r "Burnt T ...
Lakota named
Crow Dog
Crow Dog (also Kȟaŋǧí Šúŋka, Jerome Crow Dog; 1833 – August 1912) was a Brulé Lakota subchief, born at Horse Stealing Creek, Montana Territory.
Family
He was the nephew of former principal chief Conquering Bear, who was killed in 1854 in ...
shot and killed another Indian,
Spotted Tail
Spotted Tail (Siŋté Glešká pronounced ''gleh-shka''; birth name T'at'aŋka Napsíca "Jumping Buffalo"Ingham (2013) uses 'c' to represent 'č'. ); born c. 1823 – died August 5, 1881) was a Brulé Lakota tribal chief. Although a great warr ...
, on the
Great Sioux Reservation
The Great Sioux Reservation initially set aside land west of the Missouri River in South Dakota and Nebraska for the use of the Lakota Sioux, who had dominated this territory. The reservation was established in the Fort Laramie Treaty of 1868 ...
in
South Dakota
South Dakota (; Sioux language, Sioux: , ) is a U.S. state in the West North Central states, North Central region of the United States. It is also part of the Great Plains. South Dakota is named after the Lakota people, Lakota and Dakota peo ...
. Crow Dog was tried in federal court for murder, found guilty, and sentenced to hang. He petitioned for a writ of ''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'' to the Supreme Court, and in ''
Ex parte Crow Dog
''Ex parte Crow Dog'', 109 U.S. 556 (1883), is a landmark decision of the Supreme Court of the United States that followed the death of one member of a Native American tribe at the hands of another on reservation land. Crow Dog was a member of th ...
'' the Supreme Court found that the federal government did not have jurisdiction to try the case. Crow Dog was ordered released, having made restitution under tribal law to Spotted Tail's family.
In response to ''Ex Parte Crow Dog'',
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
passed the
Major Crimes Act
The Major Crimes Act (U.S. Statutes at Large, 23:385)[exclusive jurisdiction
Exclusive jurisdiction exists in civil procedure if one court has the power to adjudicate a case to the exclusion of all other courts. The opposite situation is concurrent jurisdiction (or non-exclusive jurisdiction) in which more than one cour ...](_blank)
over certain Indian-on-Indian crimes when the crimes were committed in "Indian country." In 1886, the Act was upheld by the Supreme Court in ''
United States v. Kagama
''United States v. Kagama'', 118 U.S. 375 (1886), was a United States Supreme Court case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain Indian-on-Indian ...
''.
''Duro v. Reina''
In 1990, the Supreme Court held in ''
Duro v. Reina
''Duro v. Reina'', 495 U.S. 676 (1990), was a United States Supreme Court case in which the Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their re ...
'' that an Indian tribe did not have
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
to try an Indian of another tribe. Tribal leaders urged Congress to fix the problem that the ''Duro'' decision created. In 1991, Congress amended the
Indian Civil Rights Act
The Civil Rights Act of 1968 () is a landmark law in the United States signed into law by United States President Lyndon B. Johnson during the King assassination riots.
Titles II through VII comprise the Indian Civil Rights Act, which applie ...
(ICRA) to recognize that Indian tribes had inherent power to exercise criminal jurisdiction over all Indians. This legislation became known as the "''Duro'' fix", and was based on tribal sovereignty rather than a federal delegation of power.
Arrest
Billy Jo Lara was an enrolled member of the
Turtle Mountain Band of Chippewa Indians
The Turtle Mountain Band of Chippewa Indians (Ojibwe language: ''Mikinaakwajiw-ininiwag'') is a Native American tribe of Ojibwa mixed heritage people, who would be considered Metis if they were Canadian, based on the Turtle Mountain Indian Reser ...
located in northern
North Dakota
North Dakota () is a U.S. state in the Upper Midwest, named after the Native Americans in the United States, indigenous Dakota people, Dakota Sioux. North Dakota is bordered by the Canadian provinces of Saskatchewan and Manitoba to the north a ...
near the Canada–U.S. border. The
Spirit Lake Reservation
The Spirit Lake Tribe (in Santee Dakota: ''Mniwakaƞ Oyate'', also spelt as ''Mni Wakan Oyate'', formerly known as Devils Lake Sioux Tribe) is a federally recognized tribe based on the Spirit Lake Dakota Reservation located in east-central Nor ...
is approximately south of the
Turtle Mountain Indian Reservation
Turtle Mountain Indian Reservation (Ojibwe language: ''Mikinaakwajiwing'') is a reservation located in northern North Dakota, United States. It is the land base for the Turtle Mountain Band of Chippewa Indians. The population of the Turtle Moun ...
. Lara had married a member of the Spirit Lake Santee tribe and had resided on the Spirit Lake Reservation with her and their children until he was banished from the reservation due to several serious misdemeanors. Lara returned to the reservation, where he was arrested and charged with
public intoxication
Public intoxication, also known as "drunk and disorderly" and "drunk in public", is a summary offense in some countries rated to public cases or displays of drunkenness. Public intoxication laws vary widely by jurisdiction, but usually require an ...
. After the arrest,
Bureau of Indian Affairs
The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and A ...
(BIA) officer Bryon Swan took Lara to the police station where Lara was informed of a Sioux order excluding him from the reservation. Lara then struck Swan, who as a BIA officer was considered both a tribal officer and a federal law enforcement officer.
Procedural history
Trial courts
Following his arrest, the tribal court of the Spirit Lake Sioux Tribe charged Lara with assaulting the arresting officers, along with four other charges. Lara pleaded guilty to the tribal charge of "violence to a policeman". Soon after, federal prosecutors charged Lara with assault on a federal officer and a federal grand jury indicted him. Lara moved to dismiss the charge based on double jeopardy and other constitutional grounds. The
Federal District Court
The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
, with Magistrate Judge Alice R. Senechal sitting by consent, denied the motions and Lara entered a conditional guilty plea, reserving the right to appeal. Senechal noted that two other trial courts in the circuit had already ruled that double jeopardy did not apply, that the ICRA only recognized the inherent sovereignty of the tribes and did not delegate prosecutorial power to the tribe. She further noted that another circuit court had ruled the same way. Lara also argued that the ''Petite'' doctrine, if applied, would preclude his prosecution, and that since it was never applied to federal prosecutions following convictions in tribal court, it discriminated against Indians. Senechal denied this motion, noting that Lara had shown no examples of other races not being prosecuted for like offenses.
Court of Appeals
Lara appealed the denial of his motion to dismiss to the
Eighth Circuit Court of Appeals
The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts:
* Eastern District of Arkansas
* Western Distr ...
, arguing that the Tribal Court obtained its authority from the ICRA, an act of Congress, and that both the Tribal Court and the Federal Court derived their power from the same sovereign. A three-judge panel of the Circuit Court affirmed the decision of the District Court, holding that the tribe derived its power from its own retained sovereignty that was separate from the sovereignty of the United States. The Eighth Circuit's panel noted that in the ''Duro'' decision, the Supreme Court had observed that Congress could address the jurisdictional system, which Congress did. When Congress amended the ICRA, they were addressing a federal common law issue, not a constitutional issue, and were within their authority to recognize the sovereignty of the tribes. The panel then affirmed the trial court on the ''Petite'' claim. Judge Hansen dissented, believing that the tribe drew its authority to try Lara from the federal government.
Lara then requested a rehearing ''
en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller ...
'' by the full court. The request was granted, and the full court reversed the decision of the three-judge panel, ordering that the federal indictment be dismissed on the grounds of double jeopardy. While the court noted that the
Fifth Amendment allowed prosecution by two separate sovereigns, such as the federal government and a state government, it found that an Indian tribe derived its authority to prosecute offenders from the ICRA, which was federal law. The court noted that in previous Supreme Court rulings, the determination of tribal jurisdiction was based on the tribal membership of the individual, not on his race as an Indian. This meant that double jeopardy attached. The United States then appealed to the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
, which granted
certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
to hear the case.
Supreme Court
Arguments
United States
Solicitor General Ted Olson
Theodore Bevry Olson (born September 11, 1940) is an American lawyer, practicing at the Washington, D.C., office of Gibson, Dunn & Crutcher. Olson served as United States Assistant Attorney General of the Office of Legal Counsel (1981–1984) ...
argued that Congress, in response to the ''Duro'' decision, acted to "recognize and affirm" the
Indian tribe's inherent power to enforce its criminal laws against Indians of other tribes. Olson noted that the ''
United States v. Wheeler'' decision clearly stated that a tribe could prosecute a tribal member for a crime and that the Federal government could subsequently prosecute for the same criminal acts without invoking double jeopardy if the actions of the accused violated Federal law. Olson noted that the
legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken. Legislative his ...
of the ''Duro'' fix bill clearly indicated that Congress intended to restore, not delegate, authority to prosecute non-member Indians by a tribe. The government argued that the limitation in ''Duro'' was a statutory limitation of the tribe's sovereignty, not a constitutional limit, and that Congress had the authority to remove that limitation. He noted that a
tribe's sovereignty has allowed prosecution of non-member Indians for centuries, until it was limited by Congress. The United States was supported by amicus briefs filed by the State of
Washington
Washington commonly refers to:
* Washington (state), United States
* Washington, D.C., the capital of the United States
** A metonym for the federal government of the United States
** Washington metropolitan area, the metropolitan area centered on ...
and seven other states, the State of
Idaho
Idaho ( ) is a state in the Pacific Northwest region of the Western United States. To the north, it shares a small portion of the Canada–United States border with the province of British Columbia. It borders the states of Montana and Wyom ...
and five other states, the
National Congress of American Indians
The National Congress of American Indians (NCAI) is an American Indian and Alaska Native rights organization. It was founded in 1944 to represent the tribes and resist federal government pressure for termination of tribal rights and assimilati ...
, and eighteen Indian tribes.
Lara
Alexander F. Reichert was appointed by the Supreme Court to argue the case for Lara. Reichert argued that an Indian tribe had no inherent sovereignty in regards to non-member Indians, but only the power that Congress decided to give the tribe, citing ''Duro'', ''Wheeler'', and ''
Oliphant v. Suquamish Indian Tribe
''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. Th ...
'' to support his argument. He stated that it was the place of the Supreme Court, not Congress, to determine the inherent sovereignty of the tribe. Lara argued that since the tribe had no such inherent sovereignty, it could only prosecute a non-member Indian based upon federal sovereignty, which would make a subsequent Federal prosecution a violation of the prohibition of double jeopardy. It was noted that members of Indian tribes were at the same time United States citizens, and protected under the constitution in the same manner as any other citizen. Reichert stated that ''Duro'' was decided as a constitutional issue, not as a matter of common law, and it was the Court's place to determine the issue, not the place of Congress. To subject Lara to a prosecution by a tribal court, which was not subject to the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
, would deprive Lara of his rights as a United States citizen. Lara's position was supported by ''
amicus curiae
An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
'' briefs filed by the
National Association of Criminal Defense Lawyers
The National Association of Criminal Defense Lawyers (NACDL) is an American criminal defense organization.
Members include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, judges, and defe ...
,
Lewis County, Idaho, (along with several other counties), the Citizen's Equal Rights Foundation, and T. Morris, E. Morris, and R. Morris (individual Indians).
Opinion of the Court
![Stephen Breyer official SCOTUS portrait crop](https://upload.wikimedia.org/wikipedia/commons/b/bc/Stephen_Breyer_official_SCOTUS_portrait_crop.jpg)
Justice
Stephen Breyer
Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and repl ...
delivered the opinion of the court on April 19, 2004. Breyer believed that the question the Court needed to answer was whether Congress had the authority to relax restrictions that had been imposed on an Indian tribe's inherent sovereignty. He noted that the intent of Congress was clear, not only based on the plain language of the statute, but also from its legislative history.
Breyer stated that the
Indian Commerce Clause
The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among ...
of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
granted Congress "plenary and exclusive" power to legislate in respect to the Indian tribes. He noted that the Indian Treaty Clause did not specifically grant Congress the right to legislate, but that treaties made pursuant to the clause could grant Congress the authority to legislate in regards to treaty matters.
These powers included the ability to both restrict tribal powers or to relax such restrictions. Congress has done both, such as in the withdrawal of federal recognition of the
Menominee tribe
The Menominee (; mez, omǣqnomenēwak meaning ''"Menominee People"'', also spelled Menomini, derived from the Ojibwe language word for "Wild Rice People"; known as ''Mamaceqtaw'', "the people", in the Menominee language) are a federally recog ...
with the
Menominee Termination Act in 1954, and the
Menominee Restoration Act
The ''Menominee Restoration Act'', signed by President of the United States Richard Nixon on December 22, 1973, returned federally recognized sovereignty to the Menominee Indian Tribe of Wisconsin. It also restored tribal supervision over property ...
to restore tribal recognition and powers. The earlier decisions in ''Duro'', ''Wheeler'', and ''Oliphant'' dealt with cases where Congress had restricted a tribe's inherent powers but pointed at nothing in the Constitution or established precedent that prohibits Congress from relaxing such restrictions. The decision in ''Duro'' was one of federal
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, and it is clear that Congress has the power to change that law. Since the power exercised by the Spirit Lake Sioux Tribe was that of inherent tribal sovereignty, double jeopardy did not attach.
Breyer noted Lara's other arguments, but as the double jeopardy issue was dispositive, he declined to address those issues. He did note that "we are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status." The decision allowed both courts to prosecute Lara. Since separate
sovereign
''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'.
The roles of a sovereign vary from monarch, ruler or ...
bodies had filed the charges, double jeopardy did not apply to Lara's case. The decision of the Eighth Circuit Court was reversed in the 7–2 decision.
Concurrences
![Clarence Thomas official](https://upload.wikimedia.org/wikipedia/commons/c/c2/Clarence_Thomas_official.jpg)
Justice Stevens
Justice
John Paul Stevens
John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
wrote a
concurring opinion
In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
that argued that the Indian tribes have a stronger claim on inherent sovereign powers than do individual states. He noted that the Indian tribes governed themselves since before Columbus arrived, and that most states never governed themselves outside of the United States.
Justice Kennedy
Justice
Anthony Kennedy
Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
wrote a concurrence which stated that Congress was very careful to base the changes to the statute on inherent tribal powers and not on a delegation of authority. Kennedy states that is all that is needed to decide the case, but that the Court went further than was necessary when it decided that Congress had the power under the constitution to authorize tribes to prosecute non-member Indians. Finally, Kennedy was concerned that the court did not address the question of the
Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
. He would have reversed the Eighth Circuit without going into the additional detail.
Justice Thomas
Justice
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
wrote a concurring opinion stating that it was time to re-examine the entire concept of tribal sovereignty. He noted that doubtful precedents stated that Congress, and not another part of the government had the power to regulate everything that a tribe could or could not do, which renders tribal sovereignty a "nullity." Thomas did not believe that Congress has the constitutional authority to set the "metes and bounds of tribal sovereignty." He noted that such authority was not in the Indian Treaty Clause nor the Indian Commerce Clause.
"In
is/nowiki> view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously." Thomas further questioned the law ending the practice of making treaties with the tribes, noting that this was the one clear constitutional provision that provides for dealing with other sovereigns. Thomas noted that a delegation of prosecutorial power is always to an executive branch and that the tribes are not part of any executive branch of the Federal government. Therefore, the case hinges on the tribes' inherent sovereignty, and based on precedent, the tribes possess that power.
Dissent
Justice David Souter
David Hackett Souter ( ; born September 17, 1939) is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1990 until his retirement in 2009. Appointed by President George H. W. Bush to fill the seat t ...
wrote a dissenting opinion, which was joined by Justice Antonin Scalia
Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
. Souter referenced prior cases dealing with sovereignty and jurisdiction, from the decision made in ''United States v. Kagama
''United States v. Kagama'', 118 U.S. 375 (1886), was a United States Supreme Court case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain Indian-on-Indian ...
'', to the opinion made in ''South Dakota v. Bourland
''South Dakota v. Bourland'', 508 U.S. 679 (1993), was a case in which the Supreme Court of the United States held that Congress specifically abrogated treaty rights with the Cheyenne River Sioux Tribe as to hunting and fishing rights on reservati ...
''. Souter stated that the decision in this case did not align with precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
established in previous cases. Since ''Duro'' held that the tribes had lost their inherent sovereignty, the only way for the tribes to regain jurisdiction over non-member Indians would be by the delegation of that jurisdiction by Congress. ''Bourland'' was even more specific as to that point. Souter believed that the only two ways that the tribes could regain their sovereignty would be for Congress to declare that they were independent of the United States, as it did with the Philippines
The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no),
* bik, Republika kan Filipinas
* ceb, Republika sa Pilipinas
* cbk, República de Filipinas
* hil, Republ ...
, or for the Court to overturn the concept of a dependent domestic sovereign.
Souter wrote that this dissonance in court decisions will lead to confusion, stating: "And confusion, I fear, will be the legacy of today's decision, for our failure to stand by what we have previously said reveals that our conceptualizations of sovereignty and dependent sovereignty are largely rhetorical." Souter concluded that he would stand by the decisions made in ''Duro'' and ''Oliphant''.
Subsequent developments
Release of Lara
Lara was released from federal prison on August 19, 2005, about a year and four months after the Supreme Court delivered their decision.
Law reviews
This case has been the subject of numerous law review
A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pro ...
articles since the decision was made. Points raised include:
* Indians are very integrated across tribal boundaries, intermarrying across tribes and sharing child and medical care services across tribes. Lara was an example of this; he married a Spirit Lake Sioux woman and moved to that reservation before his exclusion by the tribe.
* "As 'domestic dependent nations,' Indian tribes possess criminal jurisdiction in Indian Country that is 'complete, inherent, and exclusive,' except as limited by Congress."
* The decision enhanced tribal self-determination
The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a ''jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It stat ...
because tribes could act even in the presence of related federal activity. They noted that Lara had been in numerous altercations with the tribal police at Spirit Lake for intoxication, spousal abuse, and resisting arrest
Resisting arrest, or simply resisting, is an illegal act of a suspected criminal either fleeing, threatening, assaulting, or providing a fake ID to a police officer during arrest. In most cases, the person responsible for resisting arrest is crimi ...
. Only when the tribe ran out of options did it issue an exclusion order to bar him from the reservation.
*The decision limited tribal sovereignty
Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States.
Originally, the U.S. federal government recognized American Indian trib ...
by affirming the ability of Congress to relax or to restrict tribal powers. The opinion of Justice Thomas was especially telling in this, as Thomas had opined that plenary power
A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full").
United States
In United States constitutional law, plenary p ...
and tribal sovereignty were mutually exclusive.
Books and media
The case has been widely covered in books and news media. Tribal court authority has been altered by the U.S. government for decades, affecting jurisdictional powers. In Justice Thomas's conclusion at the end of this case, he stated, "History points in both directions." Thomas further stated, "Federal Indian policy, is, to say the least, schizophrenic." Thomas's statements directly address the Supreme Court's confusion on both present and future Federal Indian Policy Federal Indian policy establishes the relationship between the United States Government and the Indian Tribes within its borders. The Constitution gives the federal government primary responsibility for dealing with tribes. Some scholars divide the ...
. As Justice Souter stated in his dissent, this remains "an area peculiarly susceptible to confusion."[David Stout, ]
1 Punch, 2 Prosecutions, No Double Jeopardy, Justices Rule
', , April 19, 2004.
See also
* Tribal sovereignty in the United States
Tribal sovereignty in the United States is the concept of the inherent authority of tribe (Native American), indigenous tribes to govern themselves within the borders of the United States.
Originally, the Federal government of the Unite ...
Notes
References
Further reading
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{{Fifth Amendment crimpro, jeopardy, state=expanded
2004 in United States case law
Native American history of North Dakota
Native American tribal police
Dakota
United States Double Jeopardy Clause case law
United States Native American criminal jurisdiction case law
United States Supreme Court cases
United States Supreme Court cases of the Rehnquist Court