‘Inherent’ sovereignty upheld

WASHINGTON – Tribal sovereignty won big in the April 17 U.S. Supreme Court
decision in United States v. Lara, but the four separate opinions in the
case showed totally opposing views on the meaning of the term and opened a
basic constitutional debate.

Tex Hall, president of the National Congress of American Indians, called
the decision a “great victory.” It clearly showed the impact of briefs
submitted by NCAI and the Native American Rights Fund (NARF) as part of
their Supreme Court Project. Even so the make-up of the Court remains a
major worry for Indian Country, and a major prize for the 2004 presidential
election.

Five justices joined in the majority opinion written by Stephen G. Breyer,
backing the Congressional override of one of the Supreme Court’s most hated
recent Indian decisions, Duro v. Reina (1990) which limited a tribal
court’s jurisdiction to its own tribal membership. Breyer said that tribes
had inherent legal power over non-member Indians who lived on their
territory.

Two more Justices agreed on the specific issue of the case, giving the
tribal and U.S. government position a solid 7 – 2 win. The margin
surprised, and delighted, lawyers for the tribes, but it masked a
continuing close division on the Court about the true constitutional status
of Indian tribes.

“I don’t believe anyone walked away from the oral argument thinking we
would get a 7 to 2 decision,” said Richard Guest, a lawyer with NARF, which
submitted an amicus curiae (friend of the court) brief on behalf of 18
tribes. “But we’re happy to take it.”

The case crystallized the range of opinions on the Court about the nature
of tribal sovereignty. Breyer called it “inherent,” the language Congress
used in overriding Duro in its so-called “Duro-fix” legislation. In the
crux of his argument, he said Congress had relaxed its restraint on a
pre-existing tribal power, rather than delegating federal power to the
tribes. In a brief concurrence, Justice John Paul Stevens noted the
“historical basis” of tribal sovereignty; Indian tribes, he wrote,
“governed territory on this continent long before Columbus arrived.”

In sharp contrast, the dissent by David Souter, with Antonin Scalia
joining, compared the Congressional act to “the delegation of lawmaking
power to an administrative agency, whose jurisdiction would not even exist
absent congressional authorization.” Justice Kennedy sided with Souter and
Scalia on principle but upheld the majority on narrow grounds.

Perhaps most ominously, Justice Clarence Thomas called federal Indian
policy, “to say the least, schizophrenic.” He said that if the court
accepted tribes as sovereign, then they had to power to punish anyone who
violated their laws, Indian or non-Indian, a reach the federal government
has never allowed. “The time has come to reexamine the premises and logic
of our tribal sovereignty cases,” he wrote.

Such a re-examination would come just as the Supreme Court faces several
potential vacancies and a high-stakes national debate over new appointees.
Justice Stevens just turned 84, and Chief Justice William H. Rehnquist will
be 80 in October. Although rumors that one might retire last came to
naught, court observers say such decisions traditionally come in late June
at the end of the court’s term, which would plunge a new nominee squarely
into the presidential election. The meaning of tribal sovereignty, already
a simmering issue in some states, could emerge four-square into the
national debate.

Even though the Lara case raised basic issues about tribal sovereignty and
its relation to the power of the federal United States government, it
started with a minor incident. Billy Jo Lara, an enrolled member of the
Turtle Mountain Band of Chippewas, struck a BIA officer enforcing an order
excluding him from the Spirit Lake tribal reservation. Lara was convicted
in Spirit Lake Tribal Court for “violence to a policeman” and served 90
days in jail. When the federal government prosecuted him for the same
offense, he argued a double jeopardy defense, that a government couldn’t
try a person twice for one crime.

The Supreme Court upheld the position of the U.S. and a number of Indian
groups that the Spirit Lake Tribe was a separate sovereignty and so double
jeopardy didn’t apply. The tone of the majority opinion by Justice Stephen
Breyer gave far greater weight to the “inherent” nature of tribal
sovereignty then did a train of recent Supreme Court decisions, which
Breyer said no longer applied. Breyer said that the Congressional
“Duro-fix,” acknowledging a tribal court’s power over all Indians who
happened to come before it, was not a delegation of federal power, but the
removal of a restriction by the dominant power on “the exercise of a
tribe’s inherent legal authority.” In a step the Supreme Court has
sometimes been reluctant to take, Breyer acknowledged that a tribe’s
sovereignty could apply over its land base, not just to its membership
role.

NCAI President Hall claimed credit for the legal work of the Supreme Court
Project. “Tribes pulled together to file amicus briefs that explained our
position to the Supreme Court,” he said. “Those briefs made a big
difference in this case.”

Guest, who helped write one brief for NARF, said that the Project’s legal
team had basically divided the chore. NCAI submitted the legal argument
that Congress could remove restrictions from tribal sovereignty as well as
impose them. NARF, he said, turned out what the trade calls a “Brandeis
Brief”, after the innovation of the great jurist Louis Brandeis in
confronting the Court with the social consequences of its rulings. The NARF
brief focused factually on the turmoil in tribal law enforcement caused by
the Duro ruling. Guest said it also tactfully corrected historical mistakes
in the Supreme Court’s decision.