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

omitted). (internal Therefore, the quotes the district court’s denial of affirms as a

Top judgment of Iowa’s motion of fidu-

matter of law on Schewe’s breach

ciary duty counterclaim.

Therefore, Top the denial of Iowa’s judgment

renewed motion for as matter fiduciary law on breach of Schewe’s is affirmed.

duty counterclaim

IY. Conclusion reasons, foregoing

For June denying order of district court all

post-trial is AFFIRMED. motions

May order of the district court summary judgment

granting partial Top

of Iowa on CEA claim is AF- Schewe’s

FIRMED. America,

UNITED STATES of

Appellee,

Billy LARA, Jo also known

Billy Lara, Appellant. Joe

No. 01-3695. of Appeals, States Court

Eighth Circuit. Sept.

Submitted:

Filed: March

federal officer violation of 18 U.S.C. 111(a)(1). § Lara moved to dismiss the indictment on jeopardy double and selec- prosecution tive grounds. Following the motion, district court’s denial of the Lara entered a plea guilty conditional to the indictment, reserving his to appeal the denial of his motion to dismiss. A panel affirmed, of this court holding that the power Spirit because Lake Na- tion derives from its retained and not Congressionally delegated authority, Lara’s conviction on the federal charge did not run afoul of the Double Jeopardy granted Clause. We peti- Lara’s banc, tion for rehearing en vacating the panel’s opinion and judgment. We now reverse.

I. While on Spirit Lake Nation Reser- vation on June Lara was arrested public for intoxication Bureau of Indian police Affairs officers. The in- officers Lara, formed who is not a member Nation, Spirit Lake of an exclusion order prohibiting him from entering the reserva- Upon tion. hearing order, of the exclusion Lara struck one of the Reichart, officers with his argued, Alexander F. Grand fist. Lara Fork, ND, charged with five violations appellant. for Spirit Lake Tribal Code: violence to a Friedman, Richard A. argued, U.S. policeman, resisting arrest, public lawful Justice, DC, Dept, Washington, ap- for intoxication, disobedience to a lawful order pellee. court, of the tribal trespassing. On HANSEN, June Lara pled guilty Before Judge, Chief first three McMILLIAN, BOWMAN, WOLLMAN, charged offenses and was sentenced to a LOKEN, jail term of days. August MORRIS SHEPPARD On ARNOLD, MURPHY, BYE, RILEY, grand jury returned an indictment MELLOY, SMITH, charging Lara Judges, Circuit with assault on a federal 111(a)(1). § En officer violation of Banc. 18 U.S.C. After consenting proceed before a Unit- WOLLMAN, Judge. Circuit Magistrate ed States Judge, Lara moved Spirit After a Lake Nation Reservation to dismiss the indictment on double jeopar- tribal court him of assaulting dy or, convicted and selective prosecution grounds officer, police Billy alternative, Jo Lara was indicted that discovery be allowed by the federal government for assault on a on the claim of prosecution. selective As above, magistrate judge previously prosecuted de- who has been recounted motions, the same act another state or the feder- plea and Lara entered a nied the Heath, government. al right to seek conditioned on his guilty (two Illinois, states); Bartkus v. S.Ct. 433 review of his motion to dismiss appellate 121, 139, 676, 79 3 359 U.S. S.Ct. L.Ed.2d the indictment. (1959) (upholding prosecution 684 state fol- II. lowing prosecution); federal United States Williams, (8th 213, v. 104 F.3d 216 Cir. de the denial of review novo We 1997) (upholding prosecution federal fol- jeopardy a motion to dismiss on double lowing prosecution). Consequently, state Alverez, 235 grounds. United States sovereignty ap- whether the dual doctrine (8th Cir.2000). 1086, F.3d 1089-90 plies to Lara’s jeopardy challenge double of the Fifth Jeopardy Double Clause Spirit turns on whether the Lake Nation provides person that no shall Amendment sovereign authority emanating exercised subject for the same offence to be “be sovereign from a source distinct from that of life or limb.” The put jeopardy twice overriding sovereign. federal prosecutions multiple to be free from doctrine, by is limited the dual Oliphant In v. Suquamish Indi sovereign an to permits independent which Tribe, 191, 1011, an 435 U.S. 98 S.Ct. pros an individual who has been prosecute Court by sovereign ecuted another for the same held that a tribe had no inherent to act. who violates the laws of two One prosecute non-Indian residents of its res independent sovereigns commits an of “By submitting to the over ervation. each, against pros and thus a second fense States, riding sovereignty the United not for “the same offence.” ecution is necessarily give up Indian tribes therefore Alabama, Heath v. 474 U.S. try their to non-Indian citizens of (1985). S.Ct. 88 L.Ed.2d except in a manner ac United ceptable Congress.” the dual sover to Id. at 98 S.Ct. application Wheeler, eignty doctrine “turns on whether the two 1011. United States authority punish jeopardy defendant raised a double chal entities draw prosecution a commenced power.” lenge offender from distinct sources of federal Wheeler, an member of the Jeopardy Id. The Double Clause does not after enrolled tribe, on under the had been convicted tribal court permit prosecutions successive au included offense. 435 U.S. dual doctrine where the lesser 315-16, thority derives from 98 S.Ct. 55 L.Ed.2d 303 prosecution (1978). See, argued that because Con sovereign e.g., the same source. Wal Wheeler Florida, 387, 393-95, abrogate gress plenary authority ler v. 397 U.S. (1970) (a sovereignty, the was in effect city 25 L.Ed.2d 435 tribal tribe state); government. the federal Id. at parent and its Puerto Rico v. Shell an arm of Co., 253, 264-66, explained 1079. The 58 S.Ct. 98 S.Ct. Court (1937) (the sovereignty precedents L.Ed. 235 federal dual did government); and a not turn on the extent of control one sover territorial another, Mills, but whether the eign States v. 964 F.2d had (D.C.Cir.1992) (en banc) (the de gov prosecutions authority two exercised Columbia). source of ernment and the District of rived from the same ultimate 319-20, at 1079. The Conversely, power. the dual doctrine Id. among “unique permits prosecute a state to a defendant Court held sovereign powers Reina, limited” retained the Duro v. punish

tribe was the “members of an the Tribe for violations of law.” Id. tribe, enrolled member of a different 323-24, charged The distinction in Pima-Maricopa Indian Commu- repeatedly nity drawn expressly Court with unlawful firing weap- of a on, premised misdemeanor, was not on the racial sta- in connection with of the defendant but 679-81, tus on his member- death of boy. an Indian Id. at ship Although status. tribes retained au- S.Ct. 2053. His motion to dismiss for lack affairs, thority they over their internal 681-82, had was denied. Id. at implicitly been or explicitly divested of au- 110 S.Ct. 2053. Because the Salt River thority over nonmembers. Pima-Maricopa Id. Community not did 98 1079. “The jurisdiction S.Ct. areas in which such claim that over Dura implicit divestiture of sovereignty has been stemmed Congressionally delegated held to have occurred are involving authority, those the Court was faced with the relations between an question Indian tribe and whether the tribe’s retained or 326, nonmembers the tribe.” Id. at 98 inherent sovereignty provided juris- it with 1079. S.Ct. Because Wheeler was an en- diction over nonmember Indian. The tribe, (“In rolled of the prose- member he was Court held that it did not. Id. at 688 pursuant cuted to an sovereign enforcement, however, inherent the area of criminal power that had never been from tribal power divested does not beyond extend inter- tribe, members.”). subsequent thus nal among relations prosecution for the same act was not In response to the decision in 332, Id. at barred. 98 S.Ct. 1079. Congress Rights amended Indian Civil States, (ICRA),

In Montana v. United 1301, § 450 U.S. Act by 25 revising U.S.C. 544, 1245, (1981), 67 L.Ed.2d 493 “powers the definition of self-govern- again emphasized the Court the distinction ment” to power include “the inherent tribes, between retained or inherent sover- hereby recognized af- firmed, over internal eignty between relations jurisdiction exercise criminal of the tribe and 1301(2). members § over all Indians.” 25 U.S.C. over external necessarily relations that The amendment also defined “Indian” to had been divested from the tribes. subject “[T]he include all juris- Indians to federal dependent status of Indian tribes within Major diction under Crimes jurisdiction Act, our territorial necessarily § is 18 U.S.C. 1153. 25 U.S.C. 1301(4). with Thus, § inconsistent indepen- freedom under the ICRA amend- dently ments, to determine their external rela- Indians who are enrolled members 564, tions.” Id. at 101 S.Ct. 1245 (quoting federally of a recognized subject tribe are Wheeler, to the of all tribes. Court). emphasis by added Montana Although yet Court has not Court held that the tribe’s retained inher- post construed the -Duro ICRA amend- ent did not authorize it to ments, it has repeatedly reaffirmed its regulate hunting and fishing nonmem- holdings limiting sovereign tribal authority on bers reservation land owned fee to tribe members. Atkinson Trading Co. 564-65, nonmembers. Id. at v. Shirley, 532 121 S.Ct. (2001) 149 L.Ed.2d 889 (rejecting under question of what a tribe has imposition Montana test the of a hotel nonmember Indians was occupancy addressed tax on nonmember-owned res-

639 land); via the Ne- to override ICRA fee hotel on non-Indian ervation Enas, v. Hicks, amendments. United States vada (9th Cir.2001) (en (2001) banc), F.3d 662 cert. (citing S.Ct. denied S.Ct. rule that “the general for the Oliphant (2002). Although the Enas Indian L.Ed.2d 888 powers of an sovereign inherent has “con activities of court conceded to the tribe do not extend tribe”). implications,” id. at it con stitutional nonmembers express citation cluded that the lack of an inherent retain Although Indian tribes indicated that provision to a constitutional members who violate authority punish decision, a common law an area Duro was law, regulate tribal member- tribal supreme. Id. at 674- in which rela- to conduct internal tribal ship, and Wheeler, tions, holding respect With all due be- of tribal the “exercise Enas, we conclude that the distinction be- necessary protect

yond what is delegated tween a tribe’s inherent and internal or to control self-government magnitude powers is constitutional depen- with the relations is inconsistent ultimately entrusted therefore is matter tribes, and so cannot dent status of delega- Supreme Court. Absent express congressional survive without powers are Congress, tion from a tribe’s Montana, 564, delegation.” limited sover- powers those “inherent of a 101 S.Ct. extin- has never been eignty which Wheeler, 322, Bourland, 679, at 98 guished.” 435 U.S. 508 U.S. Dakota v. South Cohen, F. of 694-95, 2309, (quoting 606 1079 Handbook 124 L.Ed.2d S.Ct. 113 S.Ct. (1945)) (emphasis 122 (1993). Federal Indian Law omitted). sovereign di- Once the federal Weaselhead, 156 United States it is no particular power, a tribe of a vests (8th Cir.1998), we construed F.3d 818 power may an inherent longer jeopardy in a double ICRA amendments by delegation Congress’s of be restored present case. factually case similar power. that Duro and The court had held district common law deci- Oliphant were federal Congress’s authority broad over authority Con- within the ultimate of sions and is limited Indian affairs derives from 908, 914- F.Supp.2d 36 gress to overrule. root by Some decisions the Constitution. (D.Neb.1997). panel A divided of this 15 in the Indian Commerce this reversed, concluding “ascertain- court Village Alaska v. Native Clause. of regarding posi- principles

ment of first 520, Government, 531 Tribal 522 U.S. Venetie within our constitu- tion of Indian tribes 948, (1998); 6, 30 140 L.Ed.2d n. 118 S.Ct. a matter government of is tional structure Arizona, 164, 172 411 U.S. McClanahan the Court and thus ultimately entrusted to (1973). 7, 1257, 36 L.Ed.2d 129 n. 93 S.Ct. Congress’s authority beyond scope 1903, ne government the federal Prior to fiat.” retroactively by legislative to alter with Indian tribes agreements gotiated banc, rehearing en 156 F.3d at 824. On Const, treaty power, to its pursuant and the opinion was vacated panel II, 2, 2, § cl. but the combination art. evenly an divid- district court affirmed development and the an 1871 statute Cir.1999). (8th court. 165 F.3d 1209 ed pro ended this plenary power doctrine Washington, 420 U.S. be a cess. Antoine v. Ninth has held Duro to Circuit 944, 43 L.Ed.2d 129 95 S.Ct. had common law decision 640 Montana, suggested Court has which general announced “the guided

that we must be in part by struc- proposition that the inherent sovereign principles tural that are both implicit and powers of an Indian tribe do not extend explicit in the Constitution. See Seminole to the activities of nonmembers of the Florida, Tribe v. 517 U.S. 116 S.Ct. tribe[.]” 450 atU.S. 101 S.Ct. 1245. (1996); 134 252 L.Ed.2d see also While the dissent refers to our “myopic S.Ct. focus” on the prior treaty Tribe’s (“The question must answer we is whether to “absolute and undisturbed use and retained the tribes in area, occupation” of the taken it shuts dependent status within our scheme eyes both reality that after Mon- includes the crimi- tana, tribal sovereignty over nonmem- nonmembers.”). nal bers “cannot express survive without Some decisions plenary have found author- congressional delegation,” 450 U.S. at ity government’s trust responsibili- and is therefore not ty, Nation, Stephens v. Cherokee inherent. 445, 478, L.Ed. (1899), or in guardian-ward Bourland, relation- 695 n.

ship between the federal government (internal omitted). citations Thus the tribes, Mancari, Morton v. ICRA amendments cannot have the effect they plainly sought to achieve: a ret- (1974), but references to these non-consti- legislative roactive reversal of Duro. We tutional sources of largely have need not construe the ICRA amendments supplanted by a been reliance on the com- as a legal nullity, however. It apparent See, power. e.g., merce Alaska v. Native that Congress wished to allow tribes to Village, 531 n. exercise criminal jurisdiction misdemeanor

The ICRA amendments are legisla- “a Hicks, over nonmember Indians. See tive enactment purporting to history recast (“In U.S. at 377 n. 121 S.Ct. 2304 re- in a manner that alters Supreme the sponse Duro, to our decision in ... Con- Court’s stated understanding of the orga- gress a passed expressly statute granting nizing principles by which the Indian [jurisdiction courts over nonmember were incorporated tribes into our constitu- Indians].”) (Souter, J., concurring). system government.” tional Weasel- Nothing in our today decision in any way head, 156 F.3d In exercising its circumscribes so conferred. power, Congress commerce may not “over- The Spirit Lake Nation exercises a ride constitutional decision simply authority over external only relations rewriting the history upon which it is the extent that such power a Enas, has been based.” 255 F.3d at 675. Duro’s delegated to it Congress. As a non determination of principles first regarding member, Lara was necessarily prosecuted Indian sovereignty within sys- the federal pursuant government tem of to that delegated power. ultimately is one for Be the Court. cause dual The Court doctrine this reaffirmed does principle subsequent not apply to the ICRA amend- where the ultimate source of ments: power same, is the the Double Jeopardy

The Clause bars the dissent’s complaint that main give we “barely a nod” taining prosecution a second Tribe’s inherent for the same sovereignty argument act. simply Accordingly, another the motion to dismiss manifestation of its disagreement with the indictment should been granted. have 191, 210, 98 S.Ct. 55 L.Ed.2d to dismiss U.S. denying the motion order reversed, jeopardy grounds is on double district remanded the case is present in the case opines The court indict- to dismiss the with directions

court sovereign a that divests “[o]nce ment. longer it is no particular power, tribe of a may only and it be power an inherent ARNOLD, SHEPPARD

MORRIS by delegation Congress’s pow- restored in Judge, dissenting, which Circuit holding draws on er.” This statements MURPHY, SMITH, BOWMAN, in- opinions that a Supreme Court tribe’s join. Judges, Circuit as- herent consists of those that “re- pects tribes I with difficulty that see essential government’s the federal tained” despite today is the court reaches that result See, sovereignty. e.g., overriding Reina, in Duro v. Supreme that Court 685, 110 S.Ct. 2053. The 109 L.Ed.2d premise power is that apparent court’s on the not base its decision did Supreme one once the cannot be retained Constitution, re- nor did the Constitution exists. longer holds that it no Court reached the result that the Court quire however, fails both as a premise, This instead result in that case there. The was history logic. matter and of Historical- law, nothing federal common based on ly, misapprehends it the materials that less, nothing the ICRA more and years Supreme Court has used over Congress plena- exercised its amendments relationship fashion the between Unit- over federal common ry power legislative tribes; logically, it ed States and Indian in partic- general law and Indian affairs that there is one improperly assumes scope ular of inherent define my can be retained. way that a power words, re- In other sovereignty. view, not cre- amendments did the ICRA they had power to the tribes a stored cloth, out of ate a new tribal whole had lost over the previously exercised but merely a common-law restriction relaxed deci- years as a result Regard- possessed. on a previously Nation, in Spirit Because Lake sions. amendments less of the the ICRA fact Lara, simply exercising its Mr. trying Spirit cause of the Lake are “but-for” and not a sovereignty, own ability try Mr. Lara here Nation’s it, dou- Congress delegated to Mr. Lara’s (which are), the they necessarily of course were not violated. jeopardy rights ble power was not the origin of that ICRA full terri- themselves but the amendments

I. possessed torial that the tribes Indi According legal thought, to current Ins. past. in the Prudential Co. Cf. criminal possessed 408, 421-33, an tribes Benjamin, (1946). part Thus, Indians as of their over nonmember 90 L.Ed. one, prior to coloni full even territorial hand is a “retained” predeces un- by European temporarily us or our if it rendered zation had been 685-86, 110 495 U.S. at available decisions of the United States sors. See Supreme held in Court. Supreme 2053. The Duro, however, had lost that the Indians A. aspect of their because this id.; early nineteenth Three “dependent” status. See Ol cases from cf. Tribe, all Justice Mar- century, of which Chief iphant Suquamish Indian wrote, shall provided a foundation for fed ones with special relationship to the eral M’Intosh, Indian law: Johnson v. States, 21 United namely, that “of a ward to (8 Wheat) 543, (1823), 5 L.Ed. 681 guardian.” his In making this determina- (5 Cherokee Georgia, Nation v. tion, 30 U.S. the Chief Justice looked not to the Peters) 1, 8 L.Ed. 25 and Worcester but, Constitution M’Intosh, inas to the (6 Peters) v. Georgia, 8 L.Ed. uniform custom of nations and history (1832). An examination of these cases of our country’s dealings with Indian shows that in forging the legal relationship See tribes. id. at 16-18. The next year between Indian tribes and Worcester, 31 U.S. at Chief Justice States, of the United Supreme “the Court Marshall wrote the relationship of the in the Marshall trilogy pre-con- embraced Cherokees to the United States “was that stitutional notions colonial process, of a nation claiming receiving pro- nations, rooted law of involving both tection one powerful: more not that of inherent tribal sovereignty and a colonial individuals abandoning their char- national prerogative vested exclusively in acter, the cen and submitting subjects government.” tralized See Philip P. Frick- of a laws master.” then He held that ey, Law, Domesticating Federal Indian 81 under international law the Indian tribes (1996). Minn. L.Rev. princi These retained right to self-government, be- ples, which the Court created cause sources, extra-constitutional have very [t]he fact of repeated treaties with “been consistently followed the courts it; recognizes them and the doc- settled for more than a years.” hundred See Fe trine of the is, law of nations that a Cohen, lix S. Handbook Federal Indian weaker does not surrender its (1988);

Law 123 Frickey, supra, at 58- cf. independence right self-govern- —its ment, by associating with stronger, taking M’Intosh, protection. state, A weak Chief Jus- in order to provide tice for its justified safety, own Marshall federal power over may place itself under the protection tribes in terms of right of dis- .one more powerful, covery, a euphemism without it- stripping right of con- self of the right quest, government, Resnik, see Judith Multiple Sover- ceasing to be a eignties: state. Tribes, States, and the Government, Federal 79 Judicature Id. at 560-61. (1995). That this was universally At the end of century, the Court recognized, asserted, he was “prove[d]” by reaffirmed these sentiments in United “the history of America discovery from its States v. Kagama, M’Intosh, the present day.” 30 L.Ed. 228 A years few Judge As Canby explained, case, before in Ex Parte Dog, Crow “[t]he principles were, of discovery of 556, 396, U.S. 3 S.Ct. 27 L.Ed. 1030 course, European (and, by adoption, feder- (1883), the Court had held that the murder al) law [and] in Marshall’s view that was of an Indian by another Indian Indian in the only kind of law that the country was jurisdiction within the sole of Court could apply.” William C. Canby, tribe, the and so federal territorial courts Jr., (3d Federal ed.1998). Indian Law 69 had no over such a Con- crime. Eight years Nation, in later Cherokee gress reacted the passing Major Indian 16-17, at U.S. Chief Justice Act, Marshall held Crimes § 18 U.S.C. declaring that Indian states, tribes were foreign but murder and other serious crimes commit- Wheeler, 324-26, In 98 S.Ct. country to be in Indian Indian by an ted instance, analyzed the Court vari- for in federal court. triable federal offenses federal establishing statutes criminal ous upheld constitu- the Court the Kagama, In Indians, jurisdiction involving over crimes act, despite the fact tionality these statutes had left and described how in regard silent “is almost the Constitution jurisdiction over place tribal criminal which relations part sovereign of the inherent members as numerous by it was established discussing why power of Indian tribes. borders,” 118 its Indians within tribes of of these statutes had none divested though and even at 6 S.Ct. restated power, Indians of this [any see in was “not able to the Court expressed the sentiments Worcester amend- constitution and its clause] of “ ‘settled doctrine of the law of that the enact any delegation ments is, power does not nations that a weaker punishment law for code of criminal independence its surrender —its crimes],” id. at 6 S.Ct. [serious with a by associating self-government, concluded, Rather, legitima- the Court ” See stronger, taking protection.’ its act derived extra-constitu- cy of the Wheeler, at 98 S.Ct. sources, necessity for the such as its tional 560-61). Worcester, 31 U.S. at (quoting that the and the fact protection Indians’ clearly quite thus decided Wheeler in th[e act “must exist pass the power to jurisdiction over tribes retained criminal it never has government because federal] matter of com- tribal as a matters else; the the- anywhere because existed mon law. within the geographi- exercise is ater Oliphant neither nor Duro Although States; it because cal of the United limits that it was a com explicitly ever stated denied; never been because decision, referred to law of mon-law or its laws on all enforce alone can nations, were decisions too founded these 384-85, 6 Id. at tribes.” See, e.g., Canby, on federal common law. Kagama, which addressed Unlike 127; Friekey, P. Com Philip at A supra, of federal grant whether a question of Age Law our Colonialism: mon country was jurisdiction in Indian criminal Tribal Au Judicial Divestiture of government’s with the federal consistent Nonmembers, 109 Yale L.J. thority over Oliphant, United “guardian,” role as Gould, (1999); L. Scott Consent Wheeler, States at the Mil Sovereignty Tribal Paradigm: Duro, 1079, 55 L.Ed.2d 303 lennium, L.Rev. Colum. is, question, converse addressed cases, analyzed In both the Court criminal the retention of certain whether de governmental custom and history and country consis- that, principle from them vised “ward.” Indian tribe’s role as tent with the of Indian dependent status result of the difference, all cases tribes, this four Despite criminal enforcement way, in the internal relations beyond their answers same reached did not extend cus- governmental namely, by among reference its members. See 2053; 685-92, Oliphant, 435 general princi- and to the practice tom and 1011; impor- jus gentium. What ples of the cf. (9th Enas, 255 F.3d 668-69 cases is the tantly missing from all of these denied, Cir.2001) (en banc), was cert. that their slightest intimation outcome constitutional by some substantive dictated

principle. (2002). in say

The Court Duro did any that The court provide does two possibilities. power delegated First, to the tribes be would it refers to “structural principles “subject to the constraints that are both implicit Constitu in explicit the tion,” Constitution,” 495 U.S. at citing Duro and Seminole that there process court, however, due would be Tribe. The concerns does not de- in subjecting nonmember scribe are, Indians to trial what these structural principles in tribal courts because those nor it explain why courts did does they derived from provide not protections fact, constitutional as a the Constitution. In “no court has right, matter of 693-94, 110 see id. at [ever] found a constitutionally protectible 2053. But none of itself,” this can serve in to con interest tribal sovereignty Can- vert Duro into by, supra, 85; and, a “constitutional” decision. the extent “[t]o that A decision is “constitutional” when it tribes are discussed the Consti- states, tution, or necessarily implies, they that the seem to recognized be as hav- requires Constitution ing the result that status perimeters, outside its” Judith Resnik, reaches. Dependent Sovereigns: Tribes, States, Courts, and the Federal cases, all the had (1989). U. Chi. L.Rev. obligation and the Article under III to decide the case before it and “to say Perhaps the proposition that the court is what law Madison, is.” Marbury v. 5 urging is that since certain attributes of (1 Cranch) (1803). 2 L.Ed. 60 state sovereignty derive from the structure any Without statute stating whether Indi Constitution, of see, e.g., Alden v. an tribes had criminal Maine, Indians,

nonmember it acted as a common- perimeters court, law using whatever were sources inherent tribal sovereignty must do so as readily relevant and at hand to ascertain well. proposition, however, That fails to the applicable legal principles to an “[ujnlike recognize states, the fact question swer the before it. As with all which ceded some sovereignty with the law, however, federal common passage of Constitution, Indian tribes legislative authority to revise the Resnik, did not.” Sovereignties, Multiple result in Duro in way whatever it desires. supra, at 119. The Indian tribes did not

participate in the making of the Constitu- tion, so its structure cannot tell us any- B. thing about extent of sovereignty. The court Worcester, holds Duro’s distinction 555, 559-60; Cf. between inherent and delegated powers Field, is Martha A. Sources Law: The magnitude.” “constitutional I Scope take that Law, Federal Common 99 Harv. to be a claim that Duro on based Thus, L.Rev. as Chief and, Constitution therefore, Worcester, Justice Marshall noted in Indi- Court’s determination in nations, Duro of what an such as Cherokees in constitutes Worcester, inherent tribal sovereignty is “distinct, remained independent final and binding on Congress. court, political communities” even after adop- however, never says precisely where tion of the Worcester, Constitution. Constitution principles of Indian sover- U.S. at 559-61. The status of Indian eignty might actually reside. tribes in our constitutional order is thus Cf. Weaselhead, 156 F.3d 825 more akin to that foreign nations than (8th Cir.1998) (M.S.Arnold, J., dissenting). to that of the states.

645 the the state to re-enact and that in re- sion authorize Second, out points the court commerce clause Dormant legislation: “non-constitution- to years references cent thus considered federal are prohibitions plenary power] [Congress’s of al sources See, Vermeule, e.g., Adrian common law. by a reliance supplanted largely been have Problem, No Three Clauses? But Commerce power.” commerce [Indian] on the (2003); 1175, 1175 Ark. L.Rev. com- 55 scope of the Indian that the the fact cf. Law, supra, at A 71-72. Frickey, Common years in recent expanded power merce matter, Thus, how one views the no matter source of seen as the is now often authority to legislative retains Congress as regulates the Indians that legislation power tribes communities, what prospectively v. determine e.g., Alaska dependent Gov’t, inherently possess. Tribal Venetie Native Vill. of n. 118 S.Ct. C. the (1998), that does not mean the rela- origins of the of traditional view also relies on South Dakota The court and the Indian tionship between tribes Bourland, sub- has somehow been (1993),a case that it notes for a source pressed merged. When to the ICRA “subsequent decided authority, Court plenary the Congress’s in amendments.” rely on increasingly to tends that case state that exercise did clause, think, simply I because commerce necessary to beyond tribal what is power context, to it sees no need particular not relations is inherent control internal look further. cannot survive ex- without therefore see id. at delegation, press congressional Congress’s plenary power The source our 694-95 & n. point: Regardless any case beside is with law is similar subsequent replete case source, settled that Con- it is well of its But, language must always, se- statements. as It is a non plenary. gress’s power context, and the context source be understood that because the to intimate quitur made was statements were changed in which these may have plenary way present that makes different in to constitu- a “non-constitutional” legally distinguishable. source, legis- case Congress’s ability tional If that is somehow circumscribed. late and some other Bourland Although authority true, Congress’s then were after the ICRA were decided cases that Lone plenary. longer would no be Cf. Hicks, amendments, Nevada v. e.g., Hitchcock, Wolf 150 L.Ed.2d 47 L.Ed. and dele- inherent addressed have they did not involve powers, gated of the Indian if mere existence Even here, question raised amendments. clause somehow restricted commerce could Congress restore namely, whether inherently possess, tribes powers tribes, rather moreover, aspects inherent it, did therefore delegate common than a matter of federal would still be have cases and could Consider, not arise in those not analogy, an dormant law. It is if Con- by them. leg- state been decided clause restrictions on commerce restore gress does not have unduly interstate burdens islation delega- aspects a state A court can invalidate commerce. my opin- only option. tion grounds, becomes law on commerce clause dormant Oli- ion, in cases such as deci- statements but can reverse court’s Duro that phant and COMPANY, CENTRIC JONES

question was not inherent and could Appellant-Cross-Appellee, by Congress what delegated be described legislation true the sort of would be absent Hicks, that we have before us. Cf. KEARNEY, NEBRASKA, OF CITY J., (Souter, n. U.S. at 377 Appellee-Cross-Appellant. concurring).

Nos. 02-1965. II. Appeals, United States Court of Eighth Circuit. conclusion, reaching the court re- jects Dec. contrary result a unanimous Submitted: Enas, court in eleven-judge 255 F.3d 662. Filed: March the rationales in the two Though opinions somewhat, in that ease differed all of the

judges agreed sovereign- that the inherent

ty of Indian tribes was matter of federal law,

common not constitutional law. For that I explain,

the reasons have tried to

that conclusion seems to me to be inelucta-

ble. question basic this case is wheth-

er providing pow- tribes with the inherent try

er to nonmember Indians for crimes Congress’s plenary authority

falls within (which Indian affairs the court has).

agrees Congress In light of the pronouncement that all ...

“aspect[s] [are]

subject plenary federal control and def-

inition,” see Three Tribes Affiliated Eng’g,

Fort Berthold Reservation v. Wold it seems to me that only possible answer to question

is that can do what quite

plainly sought to do here.

I respectfully therefore dissent.

Case Details

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

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 24, 2003

Citation: 324 F.3d 635

Docket Number: 01-3695

Court Abbreviation: 8th Cir.