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American-Indian Law
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United State v Lara: Affirmation of Tribal Criminal Jurisdiction over nonmember American Indians
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by Matthew L.M. Fletcher |
When
April 19, 2004, the United States Supreme Court decided United States
v Lara,1
a landmark case in federal American-Indian law. Lara upheld the
authority of American-Indian tribes to prosecute nonmember American Indians
and held that such prosecutions do not violate the Double Jeopardy Clause
because an American-Indian tribe is ‘‘acting in its capacity
of a separate sovereign.’’ All Michigan tribes have significant
numbers of nonmember American Indians—members of other American-Indian
tribes and Canadian Indians—living in their Indian Country. The
Lara decision clarifies an important area of law for the Michigan
tribes—whether American-Indian tribes have inherent authority
to prosecute nonmember American Indians.
Criminal
jurisdiction in Indian Country is a complicated doctrine of law with practitioners
often relying on a chart to decide which sovereign may prosecute in a
particular case.2
The complications arose over the course of more than 150 years of Supreme
Court jurisprudence and several Acts of Congress. In the early 19th century
case known as the Marshall Trilogy,3
the Supreme Court first formulated its opinion of the relationship of
American-Indian tribes as sovereign governments within the two-sovereign
structure established by the United States Constitution. Chief Justice
Marshall rejected arguments that American-Indian tribes were foreign nations
and instead described them as ‘‘domestic dependent nations.’’4
As ‘‘domestic dependent nations,’’ American-Indian
tribes possess criminal jurisdiction in Indian Country that is ‘‘complete,
inherent, and exclusive,’’ except as limited by Congress.5
As such, American-Indian tribes have exclusive jurisdiction over crimes
committed by American Indians against American Indians in Indian Country.6
‘‘Indian Country’’ is defined as all lands within
American-Indian reservations, all dependent American-Indian communities,
and all American-Indian allotments.7
Indian
Country in Michigan, for example, includes reservation land and all land
held in trust by the United States for the benefit of the tribes or individual
American Indians.8
At least nine Michigan American-Indian tribes have reservation or trust
land in Michigan. In Indian Country, the state has no criminal jurisdiction
over AmericanIndians.9
However,
the federal limitations on tribal criminal jurisdiction are significant.
First, the Indian Civil Rights Act constrains tribes to sentencing offenders
convicted in tribal courts to one year in prison and $5,000 in fines.10
The Supreme Court articulated the second, and perhaps the most critical,
limitation in Oliphant v Suquamish Indian Tribe,11
where the Court held that American-Indian tribes do not have jurisdiction
over non-American Indians. The federal government has exclusive jurisdiction
in Indian Country over crimes committed by non-American Indians against
American Indians12
and the state has exclusive jurisdiction over crimes committed by non-American
Indians against non-American Indians.13
In Oliphant, the Court relied upon the novel theory that American-Indian
tribes had been implicitly divested of the inherent authority to prosecute
non-American Indians, noting that it was inconsistent with their status.
Scholars harshly criticized that holding, largely because the Court didn’t
(and couldn’t) say exactly when or how tribes’ inherent authority
had been divested.14
American-Indian
tribes and the federal government have concurrent jurisdiction over 14
serious crimes, listed in the Major Crimes Act,15
committed by American Indians.16
Naturally, since an American Indian may be prosecuted twice—once
by the tribe and once by the U.S. Attorney—for a crime in Indian
Country, double jeopardy concerns arise. The Supreme Court put those concerns
to rest in the 1978 case United States v Wheeler,17
where the Court relied upon the dual sovereignty exception to the double
jeopardy prohibition18
because the federal government and American-Indian tribes are separate
sovereigns.19
Wheeler
and Oliphant presaged later decisions of the Court that shifted
the law of tribal criminal jurisdiction by implying that American-Indian
tribes could only prosecute their own members. Wheeler involved a claim
under the Double Jeopardy Clause by a member against the convictions of
both the federal government and his own tribe. The Court upheld the inherent
authority of the tribe to prosecute the petitioner but created an element
of doubt as to whether American- Indian tribes could prosecute nonmembers
by referring not to ‘‘American Indians’’ but to
‘‘members.’’ Completing the circle in 1990, the
Court held that American-Indian tribes do not have criminal jurisdiction
over nonmember American Indians in Duro v Reina,20
reasoning that American-Indian tribes had been implicitly divested of
their inherent authority to prosecute all nonmembers, including nonmember
AmericanIndians.
American-Indian
tribes went into an uproar following Duro. The Court in Duro
established an arbitrary line by differentiating between members and nonmembers
instead of American Indians and non-American Indians. Nonmember American
Indians play a significant role in the daily life of any American-Indian
community—they participate in cultural ceremonies and powwows, they
intermarry, they may be drawn to other American-Indian communities through
the operation of the foster care and adoption provisions of the Indian
Child Welfare Act and federal health, housing, and educational programs,
and most importantly they are valued and essential members of the American-
Indian community.21
The Court’s reliance upon the membership of an American Indian was
completely out of tune with the reality on the ground—nonmember
American Indians are far more integrated into an American-Indian community
than tourists in a foreign land. In response, Congress exercised its plenary
authority and quickly enacted what became known as the ‘‘Duro
fix,’’ amending the Indian Civil Rights Act to restore and
affirm the ‘‘inherent power of Indian tribes...to exercise
criminal jurisdiction over all Indians,’’22 expressly
avoiding the language of a delegation of federal authority.
Nonmember American Indians subjected to dual tribal and federal prosecutions immediately challenged the Duro fix on the ground that Congress did not have the authority to ‘‘restore and affirm’’ the inherent authority of American-Indian tribes to prosecute nonmember American Indians.23 These petitioners argued that once a tribe’s inherent authority to prosecute nonmember American Indians had been divested by operation of history, it could not be returned by an Act of Congress. The theory was that, if Congress could not ‘‘restore and affirm’’ the inherent authority of tribes, then Congress could only delegate its own authority to the tribes. If that were the case, then both the tribes and the federal government would be prosecuting nonmember American Indians with federal authority, implicating the Double Jeopardy Clause. Because the states repudiated their authority to regulate American-Indian affairs during the ratification of the United States Constitution, the federal government retained plenary and exclusive authority to regulate American-Indian affairs.24 The Indian Commerce Clause became the main source of plenary Congressional authority over American-Indian affairs. Congress has exercised this authority to define the parameters of criminal jurisdiction in Indian Country several times in the last two centuries, including the enactment of the Major Crimes Act25 and the Indian Country Crimes Act.26 The Supreme Court has repeatedly affirmed the plenary power of Congress to enact statutes for the benefit of American-Indian tribes and individual American Indians.27 Importantly,
Congress relied upon its plenary power to enact dozens of other statutes
that compose much of the statutory authority upon which the federal government
operates its much-needed programs for the benefit of American-Indian tribes.
Congress enacted the Indian Child Welfare Act,28
the Indian Self-Determination and Education Assistance Act,29
the Native American Housing and Self-Determination Act,30
the Indian Gaming Regulatory Act,31 and
many other statutes, relying upon its plenary power to legislate on behalf
of American Indians.
Billy
Jo Lara is a member of the Turtle Mountain Band of Chippewa Indians in
North Dakota. He married a member of the Spirit Lake tribe in North Dakota
and moved to that reservation, a common circumstance on all American-Indian
reservations. According to the federal prosecutor, Assistant United States
Attorney Janice Morley, and the Spirit Lake tribal prosecutor, Michelle
Rivard, Lara began to repeatedly disturb the peace and perpetrate domestic
violence, steadily increasing the violence of his crimes, until he
was banished from the Spirit Lake Reservation.32
As is the unfortunate signature of many domestic violence cases, Lara
returned and was arrested by a Bureau of Indian Affairs officer, who happen
to be cross-deputized by the tribe. When Lara knocked out one of the arresting
officers, the tribe prosecuted Lara, followed shortly thereafter by the
United States Attorney’s Office prosecution for assaulting a federal
officer.33
Following
the arguments made by previous nonmember American-Indian defendants,
Lara argued that the federal prosecution violated the Double
Jeopardy Clause because the Duro fix was a delegation of federal
authority. Though the federal district court and a three-judge panel of
the eighth circuit disagreed with Lara,34
the eighth circuit re-heard the case en banc and reversed, holding that
the Duro fix was a delegation of federal power, invalidating the federal
conviction.35
Because the eighth circuit decision conflicted with the decisions of two
other circuits, the Supreme Court granted certiori and, subsequently,
reversed that court.36
Lara
establishes that Michigan tribes have the inherent authority to prosecute
nonmember American Indians living in each of their communities. A decision
adverse to the federal government would have meant that only the United
States Attorney could prosecute nonmember American Indians for crimes
in Michigan Indian Country. Crimes such as domestic violence and misdemeanors
call for a swift local response, a response the federal government, despite
the best efforts of the U.S. Attorneys, can rarely offer due to their
lack of resources and distance from most Michigan reservations.37 Preserving
tribal jurisdiction over nonmember American Indians goes a long way toward
ensuring the swift response required for most of the potentially deadly
domestic violence situations in Indian Country.
The Lara decision also strongly supported the plenary power of Congress to legislate for the benefit of American-Indian tribes, a doctrine that had come under fire in recent years. Many American-Indian law commentators had worried that the Court would invalidate the Duro fix and eviscerate Congressional power to regulate American-Indian affairs.38 For if Congress could not validly create the Duro fix, then there might be fodder that Congress couldn’t enact the Indian Child Welfare Act and other statutes enacted to assist American Indians and American-Indian tribes. Lara largely put that question to rest, affirming Congressional plenary power and holding that Congress had authority to relax ‘‘restrictions on tribal sovereign authority.’’39 Lara affirms that Congress has power to redefine the metes and bounds of tribal sovereignty even after the Supreme Court has limited tribal authority.
1. 124 S Ct 1628 (2004).
2. The chart is reprinted at Hon. William C. Canby, Jr., American Indian Law in a Nutshell 168 (3rd ed 1998).
3. Johnson v M’Intosh,
21 US (8 Wheat) 543 (1823); Cherokee Nation v Georgia, 30 US
(5 Pet) 1 (1831); Worcester v Georgia, 31 US (6 Pet) 515
(1832).
4. Cherokee Nation, 30 US at 17.
5. Hon. William C. Canby, Jr.,
American Indian Law in a Nutshell 170 (4th ed 2004) (citing Ex
parte Crow Dog, 109 US 556 (1883)).
6. See id (citing 18 USC 1152). 7.
18 USC 1151.
8. See United States v Anthony, 47 F3d 1170, 1994 WL 735269 (CA 6, Jan 12, 1994) (unpublished) (holding the housing project owned by Sault Ste. Marie tribe is ‘‘Indian Country’’); United States v Cardinal, 954 F2d 359 (CA 6 1992) (holding that Keweenaw Bay Indian Reservation is ‘‘Indian Country’’).
9. People v Bowen, 1996
WL 33357554 (Mich App, Oct 11, 1996) (unpublished), lv denied, 454 Mich
877; 560 NW2d 640 (1997); People v Bennett, 195 Mich App 455;
491 NW2d 866 (1992), lv denied, 442 Mich 913; 503 NW2d 448 (1993).
10. 25 USC 1302(7).
11. 435 US 191; 98 S Ct 1011
(1978).
12. E.g., State v Larson, 455 NW2d 600 (SD 1990); State v Flint, 756 P2d 324 (Ariz 1988).
13. United States v McBratney,
104 US (14 Otto) 621 (1881); Draper v United States, 164 US 240;
17 S Ct 107 (1896).
14. E.g., Ralph W. Johnson & Berrie Martinis, Chief Justice Rehnquist and the Indian Cases, 16 Public Land Law Review 1, 11–12 (1995).
15. 18 USC 1153.
16. See Wetsit v Stafne, 44 F3d 823 (CA 8 1995); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Arizona Law Review 503, 559 n 295 (1976).
17. 435 US 313; 98 S Ct 1079
(1978).
18. See Heath v Alabama, 474 US 82, 88; 106 S Ct 433 (1985).
19. See generally Hon. Sandra
Day O’Connor, Lessons From the Third Sovereign: Indian Tribal
Courts, 33 Tulsa Law Journal 1 (1997).
20. 495 US 676; 110 S Ct 2053 (1990).
21. See Carole Goldberg-Ambrose,
Of Native Americans and Tribal Members: The Impact of Law on Indian
Group Life, 28 Law & Society Review 1123, 1128 (1994).
22. 25 USC 1301(2).
23. E.g., United States
v Long, 324 F3d 475 (CA 7), cert denied, 124 S Ct 151 (2003); United
States v Enas, 255 F3d 662 (CA 9 2001), cert denied, 534 US 1115;
122 S Ct 925 (2002); Means v Northern Cheyenne Tribal Court,
154 F3d 941 (CA 9 1998); Morris v Tanner, 288 F Supp 2d 1133
(D Mont 2003); United States v Archambault, 206 F Supp 2d 1010
(D SD 2002); United States v Weaselhead, 36 F Supp 2d 908 (D
Neb 1997), aff’d, 165 F3d 1209 (CA 8) (en banc), cert denied, 528
US 829; 120 S Ct 82 (1999); Mousseaux v United States Commission of
American Indian Affairs, 806 F Supp 1433 (D SD 1992), aff’d,
28 F3d 786 (CA 8 1994).
24. See Oneida County, New York v Oneida American Indian Nation of New York, 470 US 226, 234 & n 4; 105 S Ct 1245 (1985); United States v Forty-Three Gallons of Whiskey, 93 US (3 Otto) 188, 194 (1876).
25. 18 USC 1153. See also United
States v Seymour, 38 F3d 261 (CA 6 1994) (§ 1153 prosecution).
26. 18 USC 1152.
27. E.g., United States
v Kagama, 118 US 375, 384–85; 6 S Ct 1109 (1886); Negonsott
v Samuels, 507 US 99, 103; 113 S Ct 1119 (1993).
28. 25 USC 1901 et seq.
29. 25 USC 450 et seq.
30. 25 USC 4101 et seq.
31. 25 USC 2701 et seq.
32. Panel Presentation on United States v Lara, University of North Dakota School of Law, March 30, 2004.
33. See Lara, 124 S
Ct at 1631.
34. See United States v Lara, 2001 WL 1789403 (D SD, Nov 29, 2001), aff’d, 294 F3d 1004 (CA 8 2002).
35. See 324 F3d 635 (CA 8 2003)
(en banc).
36. See Lara, 124 S Ct at 1631.
37. See Leslie A. Hogan, Prosecuting
Non-Indian Perpetrators of Domestic Violence, Bedohgeimo: A
Newsletter from the United States Attorney’s Office, Western District
of Michigan, Winter 2004 at 5.
38. E.g., Frank Pommersheim, Is There A (Little or Not So Little) Constitutional Crisis Developing in Indian Country?: A Brief Essay, 5 University of Pennsylvania Journal of Constitutional Law 271 (2003). 39. Lara, 124 S Ct at 1634. |
 Matthew L. M. Fletcher is Assistant Professor at the University of North Dakota School of Law; Director at the Northern Plains American Indian Law Center; Appellate Judge, Pokagon Band of Potawatomi American Indians; B.A., University of Michigan (1994); J.D., University of Michigan Law School (1997). Through May 2004, Fletcher worked as a staff attorney for the Grand Traverse Band of Ottawa and Chippewa Indians, in Peshawbestown. He is a Grand Traverse Band member. |
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