Publications
United States v. Lara (03-107) and Devenpeck v. Alford (03-710)
Greetings Court fans!
In a slightly unusual move, the Court issued an order list and an opinion yesterday (nothing issued today). Usually, on Mondays, the Court only issues order lists, saving opinions for Tuesdays and/or Wednesdays. Because the Court, of course, doesn’t explain why it changed its usual practice, we’re all left to speculate. I’m guessing that they issued an opinion Monday to avoid diverting any attention from the Guantanamo Bay cases that were argued this morning.
Enough speculation; let’s get to the opinion in United States v. Lara (03-107), an important Indian Law case. In this case, the Court held that an Indian tribe has the inherent authority to prosecute a nonmember Indian, and that therefore a subsequent prosecution of the nonmember Indian by the federal government for the same act does not violate the Double Jeopardy Clause. The facts are pretty simple: Lara is a Chippewa Indian but lived with his wife and children on the Spirit Lake Reservation in North Dakota. He got into an altercation with a federal officer on the reservation and, as a result, the Spirit Lake Tribe prosecuted him in Tribal Court for “violence to a policeman.” Later, for the same conduct, the federal government charged Lara in federal court with assaulting a federal officer. In the federal prosecution, Lara argued that the Double Jeopardy Clause barred the prosecution and the Eighth Circuit ultimately agreed. The Supreme Court reversed.
In an opinion by Breyer (joined by the Chief, Stevens, O’Connor and Ginsburg), the Court began by noting that the Double Jeopardy question turns on the source of the authority for the Tribe’s prosecution. If the Tribe exercised delegated federal authority in the prosecution, then the subsequent federal prosecution would be a subsequent prosecution by the same sovereign and thus barred. If, however, the Tribe exercised its own inherent authority, then there is no double jeopardy problem. In 1990, the Court held that a Tribe has no authority to prosecute nonmember Indians, but Congress enacted a statute in response to that case that specifically authorized such prosecutions. According to the Court, in this statute, Congress clearly intended to recognize inherent tribal authority, and so the question arises whether Congress has the constitutional authority to enact such a statute. Breyer answered this question affirmatively, relying on the following reasons: (1) The Constitution grants Congress broad powers over Indian tribes, powers that the Court has repeatedly described as “plenary and exclusive.” (2) Congress (with Court approval) has interpreted the plenary grants of power as authorizing it to enact legislation that both restricts and relaxes restrictions on tribal sovereign authority. (3) Congress’ statutory goal (modifying the degree of autonomy of a dependent sovereign) is not an unusual legislative objective. (4) Lara points to no constitutional language limiting Congress’s authority to relax restrictions on tribal sovereignty. (5) The change here is a limited one, similar to the power to prosecute a tribe’s own members, a power the Court considers “inherent.” (6) The conclusion here is consistent with earlier cases.
Breyer closed his opinion by rejecting other arguments raised by Lara. Lara argued that his prosecution by the Tribe was invalid because it did not comport with constitutional standards (e.g., due process, equal protection). These arguments, while relevant to the validity of his tribal prosecution, do not address the source of authority for the tribal prosecution and thus are irrelevant to the double jeopardy question before the Court. Hence, the Court refused to address them.
In addition to the majority, there were four separate opinions in this case, including three concurring opinions. First, Stevens (who joined the majority) penned a one paragraph concurrence to note that a Tribe’s inherent sovereignty has a historical basis, and therefore there is nothing exceptional in relaxing restrictions on that inherent tribal power. Kennedy concurred in the judgment. He would decide the case merely by holding that Congress intended to relax restrictions on tribal authority, and decline to address the larger questions addressed by the majority opinion. He considers the Court’s constitutional analysis significant and “doubtful.” Thomas also concurred in the judgment, primarily to emphasize that the Court’s Indian law jurisprudence — with its contradictory holdings about the nature and character of tribal sovereignty — is full of tension, and to note that this opinion does nothing to resolve that tension. Souter (joined by Scalia!!!) dissented. (How often do you see that line-up?!?) He reads prior case law to hold that any exercise of tribal criminal jurisdiction over nonmembers rests on a delegation of federal authority, and thus the federal prosecution in this case violated the double jeopardy clause.
Finally, one item of interest from the order list: The Court granted cert in Devenpeck v. Alford (03-710), another one of those cases that raises an issue I would have thought had already been decided: Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense if that offense is not closely related to the offense articulated by the officer at the time of arrest?
That’s all for now. The Court will probably issue one or more opinions tomorrow. Until then, thanks for reading.
Sandy
From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website.