United States v. Billy Jo Lara, Also Known as Billy Joe Lara

324 F.3d 635, 2003 U.S. App. LEXIS 5685, 2003 WL 1452033

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 24, 2003
• Docket: 01-3695
• Status: Published

Opinions

WOLLMAN, Circuit Judge.

After a Spirit Lake Nation Reservation tribal court convicted him of assaulting a police officer, Billy Jo Lara was indicted by the federal government for assault on a federal officer in violation of 18 U.S.C. § 111(a)(1). Lara moved to dismiss the indictment on double jeopardy and selective prosecution grounds. Following the district court’s denial of the motion, Lara entered a conditional plea of guilty to the indictment, reserving his right to appeal the denial of his motion to dismiss. A panel of this court affirmed, holding that because the power of the Spirit Lake Nation derives from its retained sovereignty and not from Congressionally delegated authority, Lara’s conviction on the federal charge did not run afoul of the Double Jeopardy Clause. We granted Lara’s petition for rehearing en banc, vacating the panel’s opinion and judgment. We now reverse.

I.

While on the Spirit Lake Nation Reservation on June 13, 2001, Lara was arrested for public intoxication by Bureau of Indian Affairs police officers. The officers informed Lara, who is not a member of the Spirit Lake Nation, of an exclusion order prohibiting him from entering the reservation. Upon hearing of the exclusion order, Lara struck one of the officers with his fist. Lara was charged with five violations of Spirit Lake Tribal Code: violence to a policeman, resisting lawful arrest, public intoxication, disobedience to a lawful order of the tribal court, and trespassing. On June 15, Lara pled guilty to the first three charged offenses and was sentenced to a jail term of 155 days. On August 29, a federal grand jury returned an indictment charging Lara with assault on a federal officer in violation of 18 U.S.C. § 111(a)(1). After consenting to proceed before a United States Magistrate Judge, Lara moved to dismiss the indictment on double jeopardy and selective prosecution grounds or, in the alternative, that discovery be allowed on the claim of selective prosecution. As recounted above, the magistrate judge denied the motions, and Lara entered a plea of guilty conditioned on his right to seek appellate review of his motion to dismiss the indictment.

II.

We review de novo the denial of a motion to dismiss on double jeopardy grounds. United States v. Alverez, 235 F.3d 1086, 1089-90 (8th Cir.2000). The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The right to be free from multiple prosecutions is limited by the dual sovereignty doctrine, which permits an independent sovereign to prosecute an individual who has been prosecuted by another sovereign for the same act. One who violates the laws of two independent sovereigns commits an offense against each, and thus a second prosecution is not for “the same offence.” Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).

The application of the dual sovereignty doctrine “turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” Id. The Double Jeopardy Clause does not permit successive prosecutions under the dual sovereignty doctrine where the authority for the prosecution derives from the same sovereign source. See, e.g., Waller v. Florida, 397 U.S. 387, 393-95, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (a city and its parent state); Puerto Rico v. Shell Co., 302 U.S. 253, 264-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937) (the federal government and a territorial government); United States v. Mills, 964 F.2d 1186, 1193 (D.C.Cir.1992) (en banc) (the federal government and the District of Columbia). Conversely, the dual sovereignty doctrine permits a state to prosecute a defendant who has previously been prosecuted for the same act by another state or the federal government. Heath, 474 U.S. at 93, 106 S.Ct. 433 (two states); Bartkus v. Illinois, 359 U.S. 121, 139, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (upholding state prosecution following federal prosecution); United States v. Williams, 104 F.3d 213, 216 (8th Cir. 1997) (upholding federal prosecution following state prosecution). Consequently, whether the dual sovereignty doctrine applies to Lara’s double jeopardy challenge turns on whether the Spirit Lake Nation exercised sovereign authority emanating from a sovereign source distinct from that of the overriding federal sovereign.

In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), the Supreme Court held that a tribe had no inherent power to prosecute non-Indian residents of its reservation. “By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.” Id. at 210, 98 S.Ct. 1011. In United States v. Wheeler, the defendant raised a double jeopardy challenge to a federal prosecution commenced after Wheeler, an enrolled member of the tribe, had been convicted in tribal court on a lesser included offense. 435 U.S. 313, 315-16, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). Wheeler argued that because Congress has plenary authority to abrogate tribal sovereignty, the tribe was in effect an arm of the federal government. Id. at 319, 98 S.Ct. 1079. The Court explained that its dual sovereignty precedents did not turn on the extent of control one sovereign had over another, but whether the two prosecutions exercised authority derived from the same ultimate source of power. Id. at 319-20, 98 S.Ct. 1079. The Court held that among the “unique and limited” sovereign powers retained by the tribe was the power to punish “members of the Tribe for violations of tribal law.” Id. at 323-24, 98 S.Ct. 1079. The distinction expressly and repeatedly drawn by the Court was not premised on the racial status of the defendant but on his membership status. Although tribes retained authority over their internal affairs, they had been implicitly or explicitly divested of authority over nonmembers. Id. at 324-25, 98 S.Ct. 1079. “The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe.” Id. at 326, 98 S.Ct. 1079. Because Wheeler was an enrolled member of the tribe, he was prosecuted pursuant to an inherent sovereign power that had never been divested from the tribe, and thus subsequent federal prosecution for the same act was not barred. Id. at 332, 98 S.Ct. 1079.

In Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Court again emphasized the distinction between the retained or inherent sovereignty over internal relations between members of the tribe and the sovereignty over external relations that necessarily had been divested from the tribes. “[T]he dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations.” Id. at 564, 101 S.Ct. 1245 (quoting Wheeler, 435 U.S. at 326, 98 S.Ct. 1079, emphasis added by Montana Court). The Court held that the tribe’s retained inherent sovereignty did not authorize it to regulate hunting and fishing by nonmembers on reservation land owned in fee by nonmembers. Id. at 564-65, 101 S.Ct. 1245.

The question of what power a tribe has over nonmember Indians was addressed in Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Duro, an enrolled member of a different tribe, was charged in Pima-Maricopa Indian Community Court with unlawful firing of a weapon, a misdemeanor, in connection with the death of an Indian boy. Id. at 679-81, 110 S.Ct. 2053. His motion to dismiss for lack of jurisdiction was denied. Id. at 681-82, 110 S.Ct. 2053. Because the Salt River Pima-Maricopa Indian Community did not claim that its jurisdiction over Dura stemmed from Congressionally delegated authority, the Court was faced with the question whether the tribe’s retained or inherent sovereignty provided it with jurisdiction over a nonmember Indian. The Court held that it did not. Id. at 688 (“In the area of criminal enforcement, however, tribal power does not extend beyond internal relations among members.”).

In response to the decision in Duro, Congress amended the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301, by revising the definition of “powers of self-government” to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2). The amendment also defined “Indian” to include all Indians subject to federal jurisdiction under the Indian Major Crimes Act, 18 U.S.C. § 1153. 25 U.S.C. § 1301(4). Thus, under the ICRA amendments, Indians who are enrolled members of a federally recognized tribe are subject to the jurisdiction of all tribes.

Although the Supreme Court has not yet construed the post -Duro ICRA amendments, it has repeatedly reaffirmed its holdings limiting tribal sovereign authority to tribe members. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001) (rejecting under the Montana test the imposition of a hotel occupancy tax on nonmember-owned reservation hotel on non-Indian fee land); Nevada v. Hicks, 533 U.S. 353, 358-59, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (citing Oliphant for the general rule that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe”).

Although Indian tribes retain inherent authority to punish members who violate tribal law, to regulate tribal membership, and to conduct internal tribal relations, United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” Montana, 450 U.S. at 564, 101 S.Ct. 1245.

South Dakota v. Bourland, 508 U.S. 679, 694-95, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993).

In United States v. Weaselhead, 156 F.3d 818 (8th Cir.1998), we construed the ICRA amendments in a double jeopardy case factually similar to the present case. The district court had held that Duro and Oliphant were federal common law decisions within the ultimate authority of Congress to overrule. 36 F.Supp.2d 908, 914-15 (D.Neb.1997). A divided panel of this court reversed, concluding that “ascertainment of first principles regarding the position of Indian tribes within our constitutional structure of government is a matter ultimately entrusted to the Court and thus beyond the scope of Congress’s authority to alter retroactively by legislative fiat.” 156 F.3d at 824. On rehearing en banc, the panel opinion was vacated and the district court affirmed by an evenly divided court. 165 F.3d 1209 (8th Cir.1999).

The Ninth Circuit has held Duro to be a common law decision that Congress had the power to override via the ICRA amendments. United States v. Enas, 255 F.3d 662 (9th Cir.2001) (en banc), cert. denied 534 U.S. 1115, 122 S.Ct. 925, 151 L.Ed.2d 888 (2002). Although the Enas court conceded that sovereignty has “constitutional implications,” id. at 673, it concluded that the lack of an express citation to a constitutional provision indicated that Duro was a common law decision, an area in which Congress is supreme. Id. at 674-75.

With all due respect to the holding in Enas, 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. Absent a delegation from Congress, a tribe’s powers are those “inherent powers of a limited sovereignty which has never been extinguished.” Wheeler, 435 U.S. at 322, 98 S.Ct. 1079 (quoting F. Cohen, Handbook of Federal Indian Law 122 (1945)) (emphasis omitted). Once the federal sovereign divests a tribe of a particular power, it is no longer an inherent power and it may only be restored by delegation of Congress’s power.

Congress’s broad authority over Indian affairs derives from and is limited by the Constitution. Some decisions root this power in the Indian Commerce Clause. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 531 n. 6, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998); McClanahan v. Arizona, 411 U.S. 164, 172 n. 7, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). Prior to 1903, the federal government negotiated agreements with Indian tribes pursuant to its treaty power, U.S. Const, art. II, § 2, cl. 2, but the combination of an 1871 statute and the development of the plenary power doctrine ended this process. Antoine v. Washington, 420 U.S. 194, 201-04, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). The Supreme Court has suggested that we must be guided in part by structural principles that are both implicit and explicit in the Constitution. See Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); see also Duro, 495 U.S. at 684, 110 S.Ct. 2053 (“The question we must answer is whether the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers.”). Some decisions have found plenary authority in the government’s trust responsibility, Stephens v. Cherokee Nation, 174 U.S. 445, 478, 19 S.Ct. 722, 43 L.Ed. 1041 (1899), or in the guardian-ward relationship between the federal government and the tribes, Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), but references to these non-constitutional sources of power have largely been supplanted by a reliance on the commerce power. See, e.g., Alaska v. Native Village, 522 U.S. at 531 n. 6, 118 S.Ct. 948.

The ICRA amendments are “a legislative enactment purporting to recast history in a manner that alters the Supreme Court’s stated understanding of the organizing principles by which the Indian tribes were incorporated into our constitutional system of government.” Weasel-head, 156 F.3d at 823. In exercising its commerce power, Congress may not “override a constitutional decision by simply rewriting the history upon which it is based.” Enas, 255 F.3d at 675. Duro’s determination of first principles regarding Indian sovereignty within the federal system of government is ultimately one for the Court. The Court reaffirmed this principle subsequent to the ICRA amendments:

The dissent’s complaint that we give “barely a nod” to the Tribe’s inherent sovereignty argument is simply another manifestation of its disagreement with Montana, which announced “the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe[.]” 450 U.S. at 565, 101 S.Ct. 1245. While the dissent refers to our “myopic focus” on the Tribe’s prior treaty right to “absolute and undisturbed use and occupation” of the taken area, it shuts both eyes to the reality that after Montana, tribal sovereignty over nonmembers “cannot survive without express congressional delegation,” 450 U.S. at 564, 101 S.Ct. 1245, and is therefore not inherent.

Bourland, 508 U.S. at 695 n. 15, 113 S.Ct. 2309 (internal citations omitted). Thus the ICRA amendments cannot have the effect that they plainly sought to achieve: a retroactive legislative reversal of Duro. We need not construe the ICRA amendments as a legal nullity, however. It is apparent that Congress wished to allow tribes to exercise criminal misdemeanor jurisdiction over nonmember Indians. See Hicks, 533 U.S. at 377 n. 2, 121 S.Ct. 2304 (“In response to our decision in Duro, ... Congress passed a statute expressly granting tribal courts [jurisdiction over nonmember Indians].”) (Souter, J., concurring). Nothing in our decision today in any way circumscribes the jurisdiction so conferred.

The Spirit Lake Nation exercises authority over external relations only to the extent that such a power has been delegated to it by Congress. As a nonmember, Lara was necessarily prosecuted pursuant to that delegated power. Because the dual sovereignty doctrine does not apply where the ultimate source of power is the same, the Double Jeopardy Clause bars the government from maintaining a second prosecution for the same act. Accordingly, the motion to dismiss the indictment should have been granted.

The order denying the motion to dismiss on double jeopardy grounds is reversed, and the case is remanded to the district court with directions to dismiss the indictment.