WASHINGTON, D.C. - On January 21, 2004, McDermott Will and Emery partner James E. Smith appeared pro bono on the brief as co-counsel before the Supreme Court of the United States on behalf of Billy Jo Lara, an indigent member of the Turtle Mountain Band of Chippewa Indians to preserve a landmark ruling of the Eighth Circuit Court of Appeals. If upheld, the Eighth Circuit’s ruling would define the limits of tribal sovereign power. The case was argued by lead counsel Alexander F. Reichert of Grand Forks, North Dakota.
The case involves an application of the separation of powers doctrine, as it applies to the question of inherent tribal sovereignty. In the 1990 ruling of Duro v. Reina, the Supreme Court of the United States held that tribal courts lacked inherent sovereignty to prosecute crimes committed on tribal lands by Native Americans that were enrolled members of other tribes. Following the Court’s decision, in 1992, Congress amended the Indian Civil Rights Act (ICRA) to restore tribal sovereign power to prosecute all Native Americans, regardless of the individual’s tribal membership.
Mr. Lara, a member of the Turtle Mountain Band of Chippewa living on the Spirit Lake Nation Reservation in North Dakota, assaulted a tribal officer who was also cross-deputized as a federal Bureau of Indian Affairs officer. Mr. Lara pleaded guilty to the assault charge in tribal court and received a jail sentence. . While he was still incarcerated, the federal government indicted Mr. Lara for assaulting a federal officer. On appeal from the denial of Mr. Lara’s motion to dismiss on double jeopardy grounds, the Eighth Circuit, sitting en banc, ruled that Congress’s 1992 amendments to ICRA could not restore those sovereign powers that the Supreme Court ruled the tribes had already lost. The Eighth Circuit held that the Spirit Lake Tribe’s exercise of criminal jurisdiction over Mr. Lara, a non-member Native American, was pursuant to a congressional delegation, and as such, was pursuant to federal power. Thus, Mr. Lara’s subsequent prosecution in federal court violated the double jeopardy clause of the Fifth Amendment.
The Supreme Court granted the government’s petition for certiorari, which presented the question on appeal as follows:
In Duro v. Reina, 495 U.S. 676 (1990), this Court held that Indian Tribes had lost their inherent sovereign power to prosecute members of other Tribes for offenses committed on their reservations. Congress responded to the Court's decision by amending the Indian Civil Rights Act of 1968, 25 U.S.C. §1301, to "recognize and affirm" the "inherent power" of Tribes to "exercise criminal jurisdiction over all Indians." The question presented is:
Whether Section 1301, as amended, validly restores the Tribes' sovereign power to prosecute members of other Tribes (rather than delegates federal prosecutorial power to the Tribes), such that a federal prosecution following a tribal prosecution for an offense with the same elements is valid under the Double Jeopardy Clause of the Fifth Amendment (Pet. for Cert. p. I).
Mr. Smith assisted lead counsel Reichert in drafting the response to the government’s petition for certiorari and Respondent’s merits brief. Mr. Smith also assisted in all aspects of oral argument preparation, including participating in several moot court argument sessions. “Jim and McDermott Will & Emery provided an invaluable service in this complex and challenging case. I appreciate Jim’s commitment and professionalism in assisting in this pro bono matter,” commented Mr. Reichert. A decision of the U.S. Supreme Court will likely be issued later this year.