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Law
Tribal authority over all Indians still unsettled question


Expect more challenges to tribal sovereignty even though the U.S. Supreme Court ruled in favor of tribes in a recent case, tribal advocates said on Monday.

The high court's decision in U.S. v. Lara, issued in April, was widely seen as a victory for tribal rights. It affirmed tribal authority to prosecute all Indians, regardless of affiliation, for crimes that occur on the reservation.

Despite the win, several challenges to tribal sovereignty are making their way through the courts, said John Echohawk, the executive director of the Native American Rights Fund (NARF). The cases involve constitutional issues that weren't directly addressed in Lara, he said.

"There are cases pending in the lower courts brought by non-members Indians that raise these very questions about lack of due process and lack of equal protection," Echohawk said at mid-year session of the National Congress of American Indians (NCAI) that was held on the Mohegan Reservation in Connecticut this week.

"So it's likely that the [high] court's going to have another chance to review [tribal jurisdiction] in different contexts," he added.

John Dossett, a lawyer for NCAI, highlighted two cases that could end up before the Supreme Court. In one, American Indian Movement activist Russell Means is challenging the Navajo Nation's jurisdiction to prosecute him for an alleged assault.

In the other, an Indian family affiliated with anti-treaty rights groups is challenging the authority of the Confederated Salish and Kootenai Tribes of Montana. Both cases are pending in the 9th Circuit Court of Appeals.

"Lara was just the beginning of what's likely to be a long string of cases on a tribe's right to do criminal prosecutions," Dossett said.

Echohawk said the underlying debate centers on the ability of Congress to overturn all the "bad decisions" issued by the Supreme Court. "Who really has the last word on the definition of tribal sovereignty?" he asked.

At stake is a law Congress passed to overturn a decision that stripped tribes of criminal jurisdiction over everyone except their own members. The "Duro fix," named for the Duro v. Reina case of 1990, recognized the inherent power of tribes to prosecute all Indians.

In Lara, an Indian man with a history of domestic violence on his wife's reservation challenged the Duro fix on two key points. First, Billy Jo Lara, a member of the Turtle Mountain Chippewa Tribe of North Dakota, reasoned that Congress lacked the constitutional power to define the contours of tribal sovereignty.

Second, he said the Spirit Lake Nation, also of North Dakota, was prosecuting him not as a separate sovereign but through "delegated" federal authority. That would mean he could not be charged a second time for the same crime under the double jeopardy clause of the U.S. Constitution.

Both arguments were rejected by the Supreme Court in a 7-2 decision. Congress, Justice Steven G. Breyer wrote for the majority, can define the "metes and bounds of tribal sovereignty" even if they conflict with earlier court decisions. The court noted that Lara's due process and equal protection claims failed to resolve his double jeopardy argument.

In contrast, the Means and Morris cases "are equal protection challenges to the Duro fix," Dossett said. Means and Morris claim they are treated differently only because they are Indian by race, which they say is prohibited by the 14th Amendment of the U.S. Constitution.

Means has been pushing his case for several years without resolution. He has drawn fire for flouting another tribe's authority even as he crusades for respect of treaty rights. He has not been punished for his alleged crime on the Navajo Nation.

On the other hand, Thomas Lee Morris was given a speeding ticket on the reservation where his family, of Chippewa descent, lives. He was 17 at the time. Morris' family belongs to the Citizens Equal Rights Alliance/Foundation, a national group that challenges Indian gaming, land-into-trust, federal recognition and treaty rights.

U.S. v. Lara Decision:
Syllabus | Opinion [Breyer] | Concurrence [Stevens] | Concurrence [Kennedy | Concurrence [Thomas] | Dissent [Souter]

Relevant Links:
NCAI-NARF Supreme Court Project - http://doc.narf.org/sc/index.html
Citizens Equal Rights Alliance - http://www.citizensalliance.org