United States v. Lara - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in United States against Lara will be announced by Justice Breyer.

Argument of Justice Breyer

Mr. Breyer: Now on the surface, this case concerns the application of the Double Jeopardy Clause.

Billy Jo Lara, who is a member of the Chippewa Indian Tribe, claims that the current federal prosecution, he has been prosecuted federally for assaulting an officer, and he says that that prosecution is the second time that he has been prosecuted for the same thing, and the first time was when an Indian Tribe that he is not a member of, the Spirit Lake Tribe, convicted him of the same assault.

Now, the Double Jeopardy Clause, everybody admits, allows two prosecutions for the same crime as long as each prosecution is brought by a different sovereign.

Now, this is called the dual sovereignty doctrine, and it brings us to what is really the deeper more difficult issue in the case, and that concerns what the nature of that first prosecution by the Indian Tribe was.

Does that prosecution represent an exercise of power by the same federal government that is now trying to prosecute Lara again?

Or is that first tribal prosecution an exercise of power by a separate sovereign?

Well, we have two prior cases that deal with a similar kind of issue.

In United States versus Wheeler, we said when an Indian Tribe prosecutes a member of the same tribe it is not acting as part of the United States; it is acting as a separate sovereign, because a tribe retains the inherent tribal sovereignty to prosecute its own members.

But then in a case called Duro versus Reina, we said that when that tribe prosecutes a member of a different tribe, it does not have inherent tribal authority to do so.

So, after Duro, the understanding was that a tribal prosecution of a non-member could only take place if the Federal Government delegated federal power to the tribe to conduct the prosecution.

But why is not the end of the matter?

It is not the end of the matter because Congress then enacted a statute, and that statute gave each tribe the power to prosecute members of other tribes for certain offenses, and that statute adds that when Congress gives them that power, it is recognizing and affirming the tribe’s inherent power, i.e. their own sovereign tribal power to conduct that prosecution, and that is what the Sprit Lake tribe did.

So, we have to ask whether Congress has the constitutional power to do what it tried to do to relax restrictions that over the course of time political branches have placed on what was many, many, many years ago an exercise of the tribe’s inherent power to prosecute members of other tribes.

We conclude that Congress does possess the constitutional authority in effect, to give back that tribal authority to the Indian Tribes.

First, the Constitution grants Congress powers that this Court has described as plannery and exclusive in respect to Indian Tribes and we have found, this Court has, that authority rooted in the Indian Commerce Clause and also in parts of the Constitution that grant Congress certain authority in foreign affairs and military matter.

Second, we found other instances in which Congress has changed the meets and bounds of tribal sovereign authority as well as tribal status.

Third, this kind of a goal changing, modifying status is not an unusual kind of goal, for Congress has done that kind of thing in other areas under other parts of the Constitution, think for example of the Philippines or Puerto Rico.

Fourth, the change made here is limited.

Fifth, we do not read our prior cases as stopping Congress from doing it.

And finally, we reserve for other future cases if they come.

The question of whether prosecuting a non-member Indian violates, for example, guarantees of the Due Process Clause or the Equal Protection Clause, those issues are not relevant in this particular dual sovereignty context.

We conclude the Tribe was acting as a separate sovereign when it prosecuted Lara.

Consequently, the first tribal prosecution cannot bar a second federal prosecution and we reverse an Eighth Circuit decision holding to the contrary.

Justice Stevens has filed a concurring opinion; Justice Kennedy has filed an opinion concurring in the judgment; Justice Thomas has filed an opinion concurring in the judgment; Justice Souter has filed a dissenting opinion in which Justice Scalia has joined.