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WEDNESDAY, APRIL 16, 2003

Tribes in five Plains states do not possess inherent jurisdiction over American Indians, a divided federal appeals court has concluded.

In a March 24 decision, the 8th Circuit Court of Appeals struck down dual tribal and federal prosecution of an American Indian man convicted by the Spirit Lake Nation of North Dakota. By a vote of 7-4, a full panel of the court said the tribe's prosecution stemmed from Congress -- not its own sovereignty.

"The Spirit Lake Nation exercises authority over external relations only to the extent that such a power has been delegated to it by Congress," Judge Roger L. Wollman wrote for the majority.

The holding conflicts with a separate one issued by the 8th Circuit Court of Appeals just four days earlier. In a unanimous March 20 decision, a three-judge panel said the Menominee Nation of Wisconsin -- whose federal status was terminated, then restored by Congress -- exercised its inherent authority by prosecuting a tribal member.

"The Menominee Tribe's criminal jurisdiction over certain reservation crimes existed before and exists again as a function of the tribe's inherent sovereign powers," wrote Judge Diane P. Wood.

And the 8th Circuit ruling also contradicts an 11-0 decision covering tribes in seven Western states. In what Indian law experts consider a pivotal opinion, the 9th Circuit Court of Appeals in June 2001 said dual tribal and federal prosecution of Indians does not violate the double jeopardy clause of the U.S. Constitution.

The difference among the federal circuits makes the issue ripe for Supreme Court review -- an option that many in Indian Country are loathe to pursue. The court has ruled against Indian interests in about 80 percent of cases in recent years.

But that may be the only avenue to clarify the situation, according to the majority of the 8th Circuit panel. "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," the decision stated.

The ball is in the Bush administration's court to appeal, said an attorney at the Federal Bar Association's annual Indian law conference in Albuquerque, New Mexico, last week. At the meeting, acting assistant secretary Aurene Martin was urged to keep an eye out on the case, and she said a team of Department of Interior representatives who worked on last month's Inyo County v. Bishop Paiute Tribe case would help if necessary.

The issue is of significance because tribes are lobbying Congress to pass legislation that recognizes their inherent jurisdiction over Indians and non-Indians. Sen. Daniel Inouye (D-Hawaii), vice-chair of the Senate Indian Affairs Committee, is championing the cause as part of a homeland security package.

The effort is not without precedent. When the Supreme Court concluded that tribes lack criminal jurisdiction over non-Indians, Congress passed the "Duro fix," named after 1991's Duro v. Reina case.

The 9th Circuit, in the 2001 ruling, upheld the underpinnings of the statute. "We conclude that Congress had the power to determine that tribal jurisdiction over nonmember Indians was inherent," Judge M. Margaret McKeown wrote.

Inouye's legislation is commonly referred to as the "Hicks fix," for 2001's Nevada v. Hicks case.

The 8th Circuit case, U.S. v. Lara, No. 01-3695, was first decided in June 2002 by a three-judge panel that said the tribe's prosecution stemmed from inherent sovereignty. The 8th Circuit covers tribes in the states of North Dakota, South Dakota, Minnesota, Nebraska and Iowa.

The 7th Circuit case is U.S. v. Lara, No. 02-1473. The circuit covers tribes in Wisconsin.

The 9th Circuit case, U.S. v. Enas, No. 99-10049, drew the attention of American Indian Movement activist Russell Means. In order to avoid prosecution by the Navajo Nation for a domestic violence-related dispute, he contends that tribes lack jurisdiction over non-tribal members.

Means' attorney, John Trebon, participated in oral arguments in the Enas case. The Supreme Court let the decision stand in January 2002.

Get the Decisions:
8th Circuit: U.S. v. Long (March 20, 2003) | 7th Circuit: U.S. v. Lara (en banc) (March 24, 2003) | 7th Circuit: U.S. v. Lara (panel) (June 20, 2002)

Related Decision:
9th Circuit: U.S. v. Enas (June 29, 2001)

Related Stories:
Inouye ties sovereignty to homeland security (02/25)
Tribes seek to overturn Supreme Court (2/27)
Native man denied by Supreme Court (01/22)
Court upholds dual tribal, federal prosecutions (7/2)