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The U.S. Supreme Court will review a case in its present term that could give Native American tribal courts unprecedented power to try Native Americans charged with criminal offenses. The case looks at whether a tribal court may prosecute Indian defendants who are not members of its own tribe. U.S. v. Lara, 324 F.3d 635 (8th Cir. 2003) (en banc). According to Alexander Reichert, a solo practitioner in Grand Forks, N.D., and defense counsel in Lara, when a crime is punishable by two separate sovereigns, such as state and federal authorities, “a separate crime has actually been committed against each sovereign,” which does not violate double jeopardy. This is known as the doctrine of dual sovereignty. In 1990, the Supreme Court held that Native American tribes are independent from the United States for purposes of prosecuting members of their own tribe. Duro v. Reina, 495 U.S. 676 (1990). The question now before the high court is whether this logic applies to Native American defendants who have been prosecuted by a court of a tribe other than their own. While the 8th U.S. Circuit Court of Appeals refused to extend sovereignty to nonmember prosecutions, the 9th Circuit last year held that a tribal court exercises its own sovereign power when prosecuting a member of another tribe. U.S. v. Enas, 255 F.3d 662 (2001) (en banc), cert. denied, 534 U.S. 1115 (2002). Last word in Congress? John Echohawk, executive director of the Native American Rights Fund in Boulder, Colo., argues that a 1991 congressional amendment to the Indian Civil Rights Act-which restored tribal criminal jurisdiction over both member and nonmember Native American defendants-should pre-empt Duro. Congress should have the last word on Native American tribal sovereignty, he asserted, because tribal relations are a matter of federal common law, not a constitutional question. On June 13, 2001, Billy Jo Lara, a member of the Turtle Mountain Band of Chippewa Indians, allegedly assaulted a Bureau of Indian Affairs officer in violation of the Spirit Lake Nation tribal code and federal law. Two days later, Lara pleaded guilty to the misdemeanor charge of assault in the Spirit Lake Nation tribal court and was sentenced to 155 days in tribal jail. Three months later, a federal prosecutor slapped him with the same charge. Lara’s motion to dismiss on double jeopardy grounds was denied by the federal magistrate judge. On appeal to the 8th Circuit, a three-judge panel ruled, 2-1, for the prosecution. But that ruling was reversed by a 7-4 en banc decision that Lara’s motion to dismiss should have been granted because he had already been tried by the tribal court. Because a tribe cannot be considered a separate sovereign, the subsequent federal indictment was a violation of double jeopardy, the court reasoned. Although Native American tribes have inherent authority to enforce their laws by prosecuting their own members, “they lack the inherent authority to prosecute non-member Indians,” wrote Reichert in his appellate brief to the 8th Circuit. Theodore B. Olson, the U.S. solicitor general who prosecuted Lara and appealed the 8th Circuit decision to the U.S. Supreme Court, could not comment on the case, due to its “highly sensitive nature,” according to Blain Rethmeier, a spokesman for the U.S. Department of Justice. Reichert said that he is concerned about the impact the case will have on a Native American defendant’s constitutionally protected rights. A reversal would require Lara to serve concurrent sentences imposed by tribal and federal courts. That is because it would give tribal courts separate sovereign status to try both member and nonmember Native American defendants without violating double jeopardy. If the high court were to affirm, only a tribal or a federal court-but not both-could try the crime. That would preclude the federal government from trying Lara for assault. Tribal and federal courts, however, have concurrent jurisdictions in major crimes such as murder and assault. Tribal courts are limited by the federal Indian Civil Rights Act to impose a maximum of one year in prison for each offense.

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