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United States v. Lara, 324 F.3d 635 (8th Cir. 2003)
Short Guide by Tribal Law and Policy Institute

Facts of the Case:

  • Non-Member Indian (Billie Joe Lara) arrested on Spirit Lake (North Dakota) Reservation
  • Lara charged in Tribal Court with 5 counts-ultimately pled to 3 counts
  • Lara indicted by Federal grand jury for assault on a Federal officer

Eighth Circuit Decision:

  • Federal prosecution violates Lara’s protection against double jeopardy.
  • In 1978, U.S. Supreme Court held in U. S. v. Wheeler (435 U.S. 313) that a criminal act can be prosecuted in both  federal and tribal court without violating double jeopardy since federal and tribal governments are separate sovereigns just like the states and the federal government.
  • In 1990, U.S. Supreme Court ruled in Duro v. Reina (495 U.S. 676) that Tribes do not have criminal jurisdiction over non-member Indians.
  • In 1991, Congress amended Indian Civil Rights Act (ICRA) to overturn Duro (Congressional Duro-fix)
  • 8th Circuit holds that Congressional Duro-fix was a grant or delegation of federal authority - not a recognition of inherent Tribal Sovereign authority
  • Non-member Indians cannot be prosecuted by both Tribe/Federal Government.

Legal Impact:

  • Lara is now the law in the 8th Circuit (North Dakota, South Dakota, Minnesota, Nebraska, and Iowa)
  • US Supreme Court likely to hear the issue within the next few years since unanimous en banc decision in the 9th circuit with opposite holding 9th Circuit (United States v. Enas, 255 F.3d 662 (9th Cir. 2001), cert denied, 2002 WL 75738 (U.S. Jan. 22, 2002).
  • It could become the law throughout the country.

Impact on Tribal/Federal Prosecutions:

  • In the past, Tribal prosecutions encouraged to demonstrate immediate action and community accountability while federal prosecution decisions pending
  • In 8th circuit, pending federal prosecutions likely to be blocked if prior tribal prosecution occurred and possible challenges/attempts to free federal prisoners who were prosecuted in tribal court prior to federal prosecution
  • Same issues could be faced across the country if U.S. Supreme Court agrees
  • Tribe/Federal criminal justice system needs to address the immediate problems in the 8th circuit; contingency plan for rest of the country.

Impact on Victims of Crime:

  • In 8th Circuit– pending federal prosecutions victims have expected are blocked; Possibility that federal prisoners could be freed; If perpetrator is non-member Indian – inability to proceed with immediate tribal prosecution
  • Possible Impact for victims throughout Indian Country
  • Victim confusion concerning who will prosecute and why
  • Limitation on sentencing if prosecuted in Tribal court
  • Delay in justice/ Lack of immediate action and community accountability
Possible Strategies to Minimize Potential Impact of Lara case:
  • Closer coordination and cooperation between federal and state prosecutors in making all prosecutorial decisions involving non-member Indians.
  • In situations where there are more than one possible offense (such as a child sexual abuse case where the abuse occurred more than once) - the tribe can prosecute for only some of the offenses and hold the other offenses (especially those with stronger evidence) for federal prosecution.
  • Training of victim advocates and others concerning these issues so that they can explain it to victims.
  • Coordinated strategy at the federal level to respond to any efforts by incarcerated non-member Indians to use this ruling to get out of jail.
  • These strategies need to be implemented in the 8th circuit immediately and then across the country ASAP in case this ruling is expanded.

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