United States v. Lara, 541 U.S. 193 (2004), was a United States Supreme Court case 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. Sony VAIO PCG-3B1M Battery
Therefore separate tribal and federal prosecutions did not violate the Double Jeopardy Clause.In the 1880s, Congress passed the Major Crimes Act, divesting tribes of criminal jurisdiction in regard to several felony crimes. In 1990, the Supreme Court ruled in Duro v. Reina that an Indian tribe did not have the authority to criminally try an Indian who was not a member of that tribe. Sony VAIO PCG-3C1T Battery
The following year, Congress passed a law that stated that Indian tribes, due to their inherent sovereignty, 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'slaws and the federal United States Code. Sony VAIO PCG-3D1M Battery
Lara pleaded guilty to the tribal charges, but claimed double jeopardy 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".
The Sioux people consist of three main groups, the Lakota in the west, the Dakota in the center, and the Santee in the east. Sony VAIO PCG-3G2M Battery
In the east, the Santee was originally from the Minnesota 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. Sony VAIO PCG-5R1M Battery
Only after 1862, when the Santee rose up against the whites and were subsequently removed to the Dakota Territory, 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. Sony VAIO PCG-7141M Battery
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 Sioux named Crow Dog shot and killed another Indian, Spotted Tail, on the Great Sioux Reservation in South Dakota. Sony VAIO PCG-7143M Battery
Crow Dog was tried in federal court for murder, found guilty, and sentenced to hang. He petitioned for a writ of habeas corpus to the Supreme Court, and in Ex Parte Crow Dog 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.[fn 3] Sony VAIO PCG-7151M Battery
In response to Ex Parte Crow Dog, Congress passed the Major Crimes Act in 1885. The Act provided that the federal government had exclusive jurisdiction[fn 4] over certain Indian on Indian crimes[fn 5] when the crimes were committed in "Indian country."[fn 6] In 1886, the Act was upheld by the Supreme Court in United States v. Kagama. Sony VAIO PCG-7154M Battery
In 1990, the Supreme Court held in Duro v. Reina that an Indian tribe did not have jurisdiction to try an Indian of another tribe.[fn 7] Tribal leaders urged Congress to fix the problem that the Duro decision created. In 1991, Congress amended the Indian Civil Rights Act (ICRA) to recognize that Indian tribes had inherent power to exercise criminal jurisdiction over all Indians. Sony VAIO PCG-7162M Battery
This legislation became known as the "Duro fix", and was based on tribal sovereignty rather than a federal delegation of power.Billy Jo Lara was an enrolled member of the Turtle Mountain Band of Chippewa Indians located in northern North Dakota near the Canadian border. Sony VAIO PCG-7181M Battery
The Spirit Lake Reservation is approximately 90 miles (140 km) south of the Turtle Mountain Indian Reservation. 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. Sony VAIO PCG-41112M Battery
Lara returned to the reservation, where he was arrested and charged with public intoxication. After the arrest, Bureau of Indian Affairs (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. Sony VAIO PCG-7153M Battery
Following his arrest, the tribal court of the Spirit Lake Sioux Tribe charged Lara with assaulting the arresting officers, along with four other charges.[fn 8] Lara pleaded guilty to the tribal charge of "violence to a policeman".[fn 9] Soon after, federal prosecutors charged Lara with assault on a federal officer and a federal grand jury indicted him. Sony VAIO PCG-71312M Battery
Lara moved to dismiss the charge based on double jeopardy and other constitutional grounds.[fn 10] The Federal District Court, with Magistrate Judge Alice R. Senechal sitting by consent, denied the motions and Lara entered a conditional guilty plea, reserving the right to appeal. Sony VAIO PCG-7144M Battery
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. Sony VAIO PCG-7191L Battery
Lara also argued that the Petite doctrine,[fn 11] 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. Sony VAIO PCG-3C1M Battery
Lara appealed the denial of his motion to dismiss to the Eighth Circuit Court of Appeals, 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 its power from the same sovereign. Sony VAIO PCG-3F1M Battery
A three-judge panel of that court[fn 12]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, Sony VAIO PCG-3H1M Battery
the Supreme Court had observed that Congress could address the jurisdictional system, which Congress did. When Congress amended the IRCA, they were addressing a federal common law issue, not a constitutional issue, and were within their authority to recognize the sovereignty of the tribes. Sony VAIO PCG-3J1M Battery
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 by the full court. The request was granted, and the full court reversed the decision of the three-judge panel, Sony VAIO PCG-8141M Battery
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. Sony VAIO PCG-8161M Battery
The court noted that in previous Supreme Court rulings, the determination of tribal jurisdiction were 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, which granted certiorari to hear the case. Sony VAIO PCG-3C2M Battery
Solicitor General Ted Olson 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. Sony VAIO PCG-5N2M Battery
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. Sony VAIO PCG-5P1M Battery
Olson noted that the legislative history 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. Sony VAIO PCG-5S1M Battery
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 and seven other states,[fn 14] the State of Idaho and five other states,[fn 15] the National Congress of American Indians, and eighteen Indian tribes. Sony VAIO PCG-9Z1M Battery
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[fn 17] to support his argument. Sony VAIO PCG-7171M Battery
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. Sony VAIO PCG-7186M Battery
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. Sony VAIO PCG-81112M Battery
To subject Lara to a prosecution by a tribal court, which was not subject to the Bill of Rights,[fn 18] would deprive Lara of his rights as a United States citizen. Lara's position was supported byamicus curiae briefs filed by the National Association of Criminal Defense Lawyers, Lewis County, Idaho, (along with several other counties),[fn 19] the Citizen's Equal Rights Foundation, and T. Morris, E. Morris, and R. Morris (individual Indians). Sony VAIO PCG-31311M Battery
Justice Stephen Breyer 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. Sony VAIO PCG-8152M Battery
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 of the United States Constitution granted Congress "plenary and exclusive" power to legislate in respect to the Indian tribes. Sony VAIO PCG-31111M Battery
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.[fn Sony VAIO PCG-61111M Battery
Congress has done both, such as in the withdrawal of federal recognition of the Menominee tribe with the Menominee Termination Act in 1954, and the Menominee Restoration Act to restore tribal recognition and powers. The earlier decisions in Duro, Wheeler, andOliphant dealt with cases where Sony VAIO PCG-51112M Battery
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 federalcommon law, and it is clear that Congress has the power to change that law. Sony VAIO PCG-51211M Battery
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. Sony VAIO PCG-51212M Battery
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 bodies had filed the charges, double jeopardy did not apply to Lara's case. Sony VAIO PCG-41111M Battery
The decision of the Eighth Circuit Court was reversed in the 7-2 decision.
Justice John Paul Stevens wrote a concurring opinion 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. Sony VAIO PCG-41111V Battery
Justice Anthony Kennedy 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, Sony VAIO PCG-61412V Battery
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. He would have reversed the Eighth Circuit without going into the additional detail. Sony VAIO PCG-71112M Battery
Justice Clarence Thomas wrote a concurring opinion stating that it was time to re-examine the entire concept of tribal sovereignty. He noted that doubtful precedence 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." Sony VAIO PCG-81111V Battery
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 [his] view, the tribes either are or are not separate sovereigns, Sony VAIO PCG-81111V Battery
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. Sony VAIO PCG-81212M Battery
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. Sony VAIO PCG-81212V Battery
Justice David Souter wrote a dissenting opinion, which was joined by Justice Antonin Scalia. Souter referenced prior cases dealing with sovereignty and jurisdiction, from the decision made in United States v. Kagama, to the opinion made in South Dakota v. Bourland. Sony VAIO PCG-51111M Battery
Souter stated that the decision in this case did not align with precedent 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. Sony VAIO VPCS13X9E/B battery
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, or for the Court to overturn the concept of a dependent domestic sovereign. Sony VAIO VPCS12V9E/B battery
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." Sony VAIO VPCS12V9E/B battery
Souter concluded that he would stand by the decisions made in Duro andOliphant.
This case has been the subject of numerous law review articles since the decision was made. Points raised include: Sony VAIO VPCF13M8E/B battery
Indians are very integrated across tribal boundaries, intermarrying across tribes and share 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. Sony VAIO VPCF13Z0E/B battery
- "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 because tribes could act even in the presence of related federal activity. Sony VAIO VPCM13M1E/L battery
- They noted that Lara had been in numerous altercations with the tribal police at Spirit Lake, for intoxication, spousal abuse, and resisting arrest. Only when the tribe ran out of options did it issue an exclusion order to bar him from the reservation.
The decision in the long run limited tribal sovereignty, since it affirmed the ability of Congress to relax or to restrict tribal powers. Sony VAIO VPCM13M1E/W battery
- The opinion of Justice Thomas was especially telling in this, as Thomas had opined that plenary power and tribal sovereignty were mutually exclusive.
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. Sony VAIO VPCF22M1E battery
In Justice Thomas's conclusion at the end of this case, he stated, "History points in both directions." Thomas further to 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. Sony VAIO VPCF11M1E/H battery
As Justice Souter stated in his dissent, this remains "an area peculiarly susceptible to confusion."
Tribal sovereignty in the United States refers to the inherent authority of indigenous tribes to govern themselves within the borders of the United States of America. Sony VAIO VPCF13M0E/B battery
The federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments. The Constitution and later federal laws grant local sovereignty to tribal nations, Sony VAIO VPCYB2M1E battery
yet do not grant full sovereignty equivalent to foreign nations, hence the term "domestic dependent nations".
The United States Constitution specifically mentions the relationship between the United States federal government and Native American tribes three times: Sony VAIO VPCYB3V1E battery
Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed." According to Storey's Commentary on the US Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, Sony VAIO VPCY11M1E battery
- who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."
Article I, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, Sony VAIO VPCS12L9E/B battery
- and with the Indian tribes”, determining that Indian tribes were separate from the federal government, the states, and foreign nations; and
The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above. Sony VAIO VPCF11S1E/B battery
These basic provisions have been changed and/or clarified by various federal laws over the history of the United States. Regulate, historically meansfacilitate. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes. Sony VAIO VPCYB3V1E/R Battery
These Constitutional provisions, and subsequent interpretations by the Supreme Court (see below) are today often summarized in three principles of U.S. Indian law:
Territorial Sovereignty. Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located. Sony VAIO VPCF23P1E Battery
- Plenary Power Doctrine. Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
Trust Relationship. The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty. Sony VAIO VPCF23N1E Battery
The Indian Appropriations Act of 1871 had two significant sections. First, the Act required the Federal Government no longer interact with the various tribes through treaties, but rather through statutes by stating, in part, “[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation . . .”. Sony VAIO VPCY21S1E/L Battery
The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States. The 1871 Act was affirmed in 1886 by the US Supreme Court, in United States v. Kagama, which affirmed that theSony VAIO VPCY21S1E/G battery
Congress has Plenary power over all Native American tribes within its borders by rationalization that “The power of the general government over these remnants of a race once powerful… is necessary to their protection as well as to the safety of those among whom they dwell”. Sony VAIO VPCF24M1E battery
Before 1871 United States had previously recognized the Indian Tribes as semi-independent. The Supreme Court affirmed that the US Government “has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States…HP 448007-001 battery
The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection.”.
On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses." HP Pavilion DV7 battery
The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible." HP DV6-1120SA battery
Another five years later, Congress began providing funds to operate the Indian courts.
While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, HP DV6-1210SA battery
it was almost another century before United States courts determined what powers remained vested in the tribal nations. In the interim, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations. Compaq CQ50 battery
Passed by Congress in 1887, the "Dawes Act" was named for Senator Henry L. Dawes of Massachusetts, Chairman of the Senate's Indian Affairs Committee. It came as another crucial step in attacking the tribal aspect of the Indians of the time. In essence, the act broke up the land of most all tribes into modest parcels to be distributed to Indian families, HP Pavilion DV8 battery
and those remaining were auctioned off to white purchasers. Indians who accepted the farmland and became "civilized" were made American citizens. But the Act itself proved disastrous for Indians, as much tribal land was lost and cultural traditions destroyed. Whites benefited the most; for example, Sony VGP-BPS13 battery
when the government made 2 million acres (8,100 km2) of Indian lands available in Oklahoma, 50,000 white settlers poured in almost instantly to claim it all (in a period of one day, April 22, 1889).
Though Congress on June 2, 1924, extended national citizenship to include members of enrolled tribes, HP DV9700 battery
the court concluded two Oglala Sioux defendants convicted of adultery under tribal laws did not enjoy legal protection afforded to other citizens by the United States Constitution. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of one sui juris (not under the power of another), Compaq CQ35-100 battery
the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial ..." (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that, Sony VGP-BPS11 battery
"It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.Sony VGP-BPS13 Battery
In 1934 the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, Sony VAIO VGP-BPS13A/B Battery
1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.
In 1956, a U.S. Court concluded no law had ever established tribal courts, but nonetheless, decades of federal funding implied that they were legitimate courts. Sony VAIO VGP-BPS13B/B Battery
In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval. Sony VAIO VGP-BPS13/S Battery
In 1965 the United States Court of Appeals for the Ninth Circuit concluded that no law had ever extended provisions of the U.S. Constitution, including the right of habeas corpus, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, Sony VAIO VGP-BPS13A/S Battery
at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, Sony VAIO VGP-BPS13B/S Battery
"it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."
While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. Sony VAIO VGP-BPS13/Q Battery
When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs. In the modern legal era, courts and congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law. Sony VAIO VGP-BPS13A/Q Battery
In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court, in a 6-2 opinion authored by Justice William Rehnquist concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall filed a dissenting opinion). Sony VAIO VGP-BPS13B/Q Battery
But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians. Sony VGP-BPS21 Battery
A 1981 case, Montana v U.S., clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation. Sony VGP-BPS21A Battery
Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation, (1980). Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie (1975). Sony VGP-BPS21B Battery
In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands…. Sony VGP-BPS21/S Battery
Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Sony VGP-BPS21A/b Battery
Congress passed the 'Duro Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The Duro Fix was upheld by the Supreme Court inUnited States v. Lara, 541 U.S. 193 (2004). Sony VGP-BPS26 Battery
At the dawn of the 21st Century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over nonmember Indians regarding crime on tribal land. Sony VGP-BPL26 Battery
The Indian Civil Rights Act, however, limits tribal punishment to one year in jail and a $5,000 fine. Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin), the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. Sony VGP-BPS26A Battery
In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act (18 USC §1153). Indian on non-Indian crime in Indian Country will be prosecuted in Federal Court, either from theMCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Sony VGP-BPS22 Battery
Non-Indian on Indian crime in Indian Country will be prosecuted in Federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.
While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits, Sony VGP-BPL22 Battery
unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions. The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings. Sony VGP-BPS22A Battery
Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native Sony VAIO PCG-3B1M Battery