[Marxism] Lara decision: active prosecution of Russell Means at Navajo could be imminent

Hunter Gray hunterbadbear at earthlink.net
Sat Apr 24 07:32:10 MDT 2004

Note by Hunter Bear:

 I've been reasonably knowledgeable on the matter of Federal Indian Law for
my adult life -- and spent 13 years teaching it [as a full prof] at the
university level. [It's an extremely complex field and I do my best to keep
up with it to this moment.]

I post with some regularity on cases of special significance and, as such,
have posted on the  North Dakota-based United States v Lara.  On Monday,
April 19, the USSC delivered its ruling -- pretty favorable to the inherent
sovereignty of tribal justice systems.  The National Indian Law
Library/Native American Rights Fund immediately sent out all decisional
materials which I was glad to get but which, given the nature of Lara, did
take awhile to read.

Although it was not at specific, formal issue here, the decision
unfortunately stops well short of reversing the 1978 Oliphant decision which
prohibits tribes from arresting and prosecuting non-Indians.

Lara could  now [among other things] mean the active Navajo prosecution of
Russell Means - of whom I am no fan.  Our family, I should add, has always
consistently supported the Navajo Nation at every point.

Yours, Hunter Bear

Tribes gain right to prosecute nonmembers

By Bill Donovan
Special to the Times  [Navajo Times, 4/18/04]

WINDOW ROCK - A recent decision by the U.S. Supreme Court dealing with
double jeopardy may put the case between the Navajo Nation and activist
Russell Means on the front burner.

In a 7-2 decision, the Supreme Court Monday upheld the right of the federal
government to prosecute cases on Indian reservations even after a tribal
court conviction.

In this case, the court upheld the right of federal prosecutors to charged
Billie Jo Lara, a Turtle Mountain Chippewa, who in 2001 was convicted in a
Spirit Lake tribal court for assaulting a police officer and received a
155-day sentence.

When the federal government later initiated its own case, Lara's attorneys
yelled foul, saying this would be a case of double jeopardy since the tribal
court had already entered a conviction in this case.

The defense also argued that since the tribal court was able to try cases
because of laws passed by Congress, tribal courts were an offshoot of the
federal court system. However, the Supreme Court ruling upheld the "inherent
tribal sovereignty" of the tribal court system, thus paving the way for the
federal government to file its own case.

In the decision, the court also ruled - and this what attracted the interest
of the Navajo Nation Department of Justice - that Congress extended tribes'
sovereignty in 1991 to include the ability to prosecute nonmember Indians
for acts committed on the tribe's reservation.

In the Lara case, Lara was married to a member of the Spirit Lake tribe and
they lived on his wife's reservation. Because of his past behavior, the
tribe had found him guilty of "serious misconduct" and had banned him from
the reservation but he ignored the ban.

One day in 2001, he was stopped by a Bureau of Indian Affairs officer and
during the process of being detained, he struck the officer and was charged
with assault.

Means, who lived on the Navajo Reservation with his then Navajo wife for
several years in the early 1990s, was charged almost eight years ago with
assaulting her father during an argument.

Means, however, refused to accept the right of the Navajo courts to handle
the case and the matter finally ended up before the Navajo Supreme Court,
which ruled that the Navajo courts did have the right to try non-member
Indians who violated Navajo law.

Means then took the case to the federal court system where a federal
magistrate also ruled against him. He then appealed to the Ninth Circuit
Court of Appeals.

Donovan Brown, the former chief prosecutor for the Navajo Nation, said
Wednesday the court of appeals had put the Means' appeal on hold while
waiting to see how the Supreme Court ruled in the Lara case.

With the court's decision upholding the right of tribal courts to try
non-member Indians, it will be up to Means, Brown said, to decide whether he
wants to continue his appeal.

If he doesn't, the matter could finally go to trial in a Navajo district
court even though Means has been living off the reservation in Santa Fe for
the past several years and has now divorced and remarried.

The ruling this week was described by one commentator as a major victory for
tribal courts which have been placed in the middle in a dispute between the
courts and Congress over just how much authority tribal courts have.

Back in 1990, the Supreme Court ruled that tribal courts do not have the
authority to try non-members Indians who commit crimes on their reservation.

But a number of tribal leaders, including the Navajo, argued that the
decision meant that non-member Indians could commit crimes on other
reservations and not worry about being prosecuted. This resulted in a year
later Congress passing laws extending that jurisdiction to tribal courts.

What surprised a lot of Supreme Court watchers was that this week's ruling
said that the bounds of tribal sovereignty are subject to the "broad general
powers" of Congress, which would indicate that Congress could extend the
powers of the tribal courts even further if it so desired.

The majority of the Supreme Court said in Monday's ruling that the 1990
decision was based on congressional action up to that point. When Congress
changed its mind in 1991, the Supreme Court agreed to respect that change.

As for the double jeopardy ruling, this would allow the federal government
to file its own case even after a Navajo Nation court conviction.

This doesn't happen often but Navajo Nation Attorney General Louis
Denetsosie said there have been a couple of cases in the past when this

In most cases, the tribal courts recused themselves once the case is picked
up by federal prosecutors. What happens more in this area is that tribal
charges are filed after the federal prosecutors refused to file charges on
their own.

Protected by Na´shdo´i´ba´i´
and Ohkwari'

In our Gray Hole, the ghosts often dance in the junipers and sage, on the
game trails, in the tributary canyons with the thick red maples, and on the
high windy ridges -- and they dance from within the very essence of our own
inner being. They do this especially when the bright night moon shines down
on the clean white snow that covers the valley and its surroundings.  Then
it is as bright as day -- but in an always soft and mysterious and
remembering way. [Hunter Bear]

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