Fatback Fryday
Variations of this one circulate every year at this time.
non-traditional:
lakota boy, "Mom, can I have a dog for Christmas?"
lakota mom, "No, you can have a turkey like everybody else."
traditional:
lakota boy, "Mom, can I have a dog for Christmas?"
lakota mom, "Dog again?."
Mom made a couple of trips a year to the pet food butcher to buy horse fillet. We were traditional.
So now that everyone is smiling, well except for Rover and Paint, I'll fire up the Way Back Machine and we can look at some Durable Goods, er, ... cases. In particular. Duro v. Reina, 495 U.S. 676 (1990).
The holding in Duro is simple to state:
Indian tribal courts may not assert criminal jurisdiction over nonmember Indians.
Duro relies upon Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), a landmark Rehnquist majority decision. Thurgood Marshall and Warren Burger dissented. This is where the Civil Rights Movement and Federal Indian Law parted company.
The holding in Oliphant is also simple to state:
Indian tribal courts may not assert criminal jurisdiction over non-Indians.
Now the average riders of the purple pages of Blog-o-Land may not even dimly appreciate that Federal Indian Law is actually God's Will On Earth. One simply has to start where a Bologna canon law jurist named Sinibaldo de' Fieschi did in 1246, when writing to Guyak: Before rising from the dead and ascending into Heaven the Creator had selected a vicar on earth, to whom the Creator had committed the care of all souls. From this, reason that (a) there is a natural law, (b) it is contrary to natural law for heathens to bedevil Christians. Guyak's reply to Sinibaldo is a landmark in the history of epistalary humor -- come at once to serve and wait upon us. At that time, I shall recognize your submission. Guyak was, inter alia, the Guyak Khan, grandson of Gengis Khan. Sinibaldo's working name was Innocent IV and is also known for his attempts to tame the Hohenstaufen. His reply to Guyak was to the effect that the Mongols could no longer plead ignorance of the law, their souls were unfit and their lands and goods were forfit.
This is the origin of the doctrine of Christian Discovery. Four hundred years later Spanish and Portugese Captains would shout their letters to empty beaches and establish the legal pretext for the forfiture of the lives, lands, and goods of heathen Indian Chiefs, who like Guyak, could no longer plead ignorance of the law, and were in armed resistance to the lawful evangelism of peaceful Christian Princes. Six hundred years later American jurists would fashion "domestic dependent nations" from this, making no pains to conceal their debt to the Bolognese jurist. The Marshall Trilogy remains law to this day. Rehnquist just elided the Christian bits.
After Duro, which created a jurisdictional vacuum, the Indian Civil Rights Act (ICRA) of 1968 was ammended in 1991. This is the "Duro fix", it places the (minor) criminal jurisdiction over all Indians in the tribal courts.
Now here's the subtle question: Did Congress restore criminal jurisdiction, or did it delegate criminal jurisdiction?
Bureau of Indian Affairs officers arrested Billy Jo Lara on the Spirit Lake Nation Reservation for public intoxication. Lara is an Indian, but not a member of the Spirit Lake Nation. When BIA officers reminded Lara of the order excluding him from the Spirit Lake Nation Reservation, Lara struck an officer with his fist. Lara pleaded guilty in tribal court to three violations of the Spirit Lake tribal code, including violence to a peace officer. Later, Lara was charged in federal court with misdemeanor assault of a federal officer. Lara moved to dismiss the indictment, claiming the federal charges violated the prohibition against Double Jepardy and impermissible selective prosecution.
The Court of Appeals for the Eighth Circuit affirmed.
Distinction between powers that Indian tribe derives from its retained sovereignty and powers delegated to tribe by Congress is of constitutional magnitude and thus is matter ultimately entrusted to Supreme Court, and not Congress; accordingly, 1990 amendments to Indian Civil Rights Act, 25 U.S.C. § 1301, are ineffective insofar as they attempted to overturn Duro v. Reina, 495 U.S. 676 (1990), which held that tribe's retained or inherent sovereignty does not provide it with criminal jurisdiction over nonmember Indians; tribal authority to prosecute Indian who is not member of tribe derives from power delegated by Congress rather than from tribe's retained sovereignty, and thus federal prosecution of Indian for offenses for which he had previously been prosecuted by tribe of which he was not member is barred by double jeopardy clause, because authority for both prosecutions is derived from same sovereign source.
Petition for certiorari was filed on 7/22/2003. Petition granted on 9/30/03. Duro is coming back. The thing is, it isn't the fix that should be upheld, it is Duro that should be overturned, and with it Oliphant, and while we're at it, Marshall. Did we overlook anything??? Oh, yes. God.
This Flashback Friday was cooked on Indian Time, which is why it appears on a Saturday.