United States v. Lara
The Supreme Court ruled that Congress has the constitutional authority to restore an Indian tribe's own power to criminally prosecute Indians who belong to a different tribe, even though the Court had earlier held tribes no longer had that power on their own.
Because the tribe's prosecution flowed from its own restored sovereign authority rather than power borrowed from the federal government, a later federal prosecution for the same conduct did not amount to trying the defendant twice for the same crime by the same government.
“Several considerations lead us to the conclusion that Congress does possess the constitutional power to lift the restrictions on the tribes' criminal jurisdiction over nonmember Indians as the statute seeks to do.”
The Court's core holding that Congress can restore tribes' inherent authority to prosecute nonmember Indians.
How it got here: A federal magistrate and an Eighth Circuit panel rejected Lara's double jeopardy claim, but the en banc Eighth Circuit reversed 7-4; the Supreme Court took the case due to a circuit split with the Ninth Circuit.
The Case in Depth
What happened
Billy Jo Lara, a member of the Turtle Mountain Band of Chippewa, lived on the Spirit Lake Reservation with his wife, a Spirit Lake Tribe member. After misconduct led the Tribe to bar him from the reservation, he defied the order, was stopped by federal officers, and struck one of them. The Spirit Lake Tribal Court convicted him of "violence to a policeman," and he served 90 days in jail before the federal government separately charged him with assaulting a federal officer.
The question before the Court
After the Supreme Court said tribes had lost the power to prosecute Indians from other tribes, could Congress pass a law giving that power back?
The Court's answer
Yes — the Court ruled that Congress has the constitutional power to relax restrictions it had previously placed on tribes, restoring their inherent authority to prosecute Indians from other tribes. Congress's 1991 amendment said it was "recognizing and affirming" existing tribal power rather than handing tribes a slice of federal power, and the Court found this within Congress's broad, long-recognized authority over Indian affairs, rooted in the Indian Commerce Clause and historical treaty practice.
Because the tribal prosecution therefore rested on the tribe's own restored sovereign authority, not delegated federal power, it counted as action by a separate sovereign from the federal government. That meant the federal government's later prosecution of Lara for a related but distinct federal crime did not violate the ban on being tried twice for the same offense by the same government.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Tribal governments can now prosecute nonmember Indians for misdemeanors on their reservations without those prosecutions being treated as a mere extension of federal power. That matters for defendants like Billy Jo Lara, who can be prosecuted first in tribal court and then again in federal court for closely related conduct without violating the ban on double jeopardy, and it strengthens tribes' day-to-day law-enforcement authority over their own territory.
What changes now
This is a final merits decision resolving Lara's double jeopardy claim; the case is not sent back for further tribal-court proceedings. The ruling leaves open, for future cases, whether tribal prosecutions of nonmember Indians might violate due process or equal protection because tribal courts do not guarantee appointed counsel for indigent defendants. Other defendants remain free to raise those claims separately through habeas review of tribal convictions.
What this does not decide
The Court did not decide whether tribal courts' lack of certain protections, like a guaranteed lawyer for indigent defendants, violates the Due Process or Equal Protection Clauses when tribes prosecute nonmember Indians. It also said its ruling does not address more sweeping changes to tribal status or any interference with state authority.
Concurrences and dissents
Concurrence — Justice Stevens
Justice Stevens joined the majority in full but wrote separately to stress that tribes' inherent sovereignty has deep historical roots predating the United States itself, unlike most states, which were briefly or never independent. He found it unremarkable that Congress can relax restrictions on this ancient tribal power just as it can let states exercise otherwise-restricted powers.
Concurrence — Justice Kennedy
Justice Kennedy agreed only with the outcome, arguing the Court should have simply accepted Congress's own characterization of the law as recognizing inherent tribal power without reaching the broader constitutional question. He warned that the majority's holding that Congress can enlarge tribal sovereignty beyond its historical bounds subjects U.S. citizens to a sovereign outside the constitutional structure, calling this an unprecedented and troubling step.
Concurrence — Justice Thomas
Justice Thomas concurred in the judgment but argued the Court's whole framework for tribal sovereignty is incoherent, since it treats Congress as having near-total power over tribes while also treating tribes as retaining meaningful sovereignty. He questioned whether the Indian Commerce Clause or treaty power actually gives Congress authority to adjust tribal sovereignty at all and urged the Court to rethink its precedents from the ground up.
Dissent — Justice Souter
Justice Souter, joined by Justice Scalia, argued that the Court's prior rulings limiting tribal criminal jurisdiction over nonmembers rested on constitutional principles about tribes' dependent status, not just changeable federal policy, so Congress could not simply legislate that limitation away. He would have held that the amended law only delegated federal prosecutorial power to tribes, meaning the tribal prosecution was effectively federal and barred the subsequent federal case under the double jeopardy rule.
How the Court got there
The legal reasoning, step by step
- The Court framed the double jeopardy question as turning entirely on whether Lara's tribal prosecution flowed from the tribe's own sovereign power or from power the federal government had merely lent to the tribe, since the ban on double jeopardy does not stop two separate sovereigns from each prosecuting the same conduct.
- Congress had amended the law to say it 'recognizes and affirms' tribes' 'inherent' power to prosecute nonmember Indians. The Court read this language, along with its legislative history, as showing Congress meant to recognize existing tribal authority rather than hand tribes a piece of federal power.
- The Court then asked whether the Constitution lets Congress loosen restrictions that earlier political branches and courts had placed on tribal authority. It concluded Congress holds sweeping, 'plenary' power over Indian affairs, rooted mainly in the Indian Commerce Clause and historical treaty-making practice, and that this power lets Congress both restrict and later relax tribes' self-governing authority.
- The Court pointed to a long history of Congress adjusting the status of other dependent political entities, such as territories, and noted that letting tribes prosecute nonmember Indians on their own land was a modest step consistent with tribes' long-recognized status as 'domestic dependent nations.'
- The Court treated its earlier rulings limiting tribal power over nonmembers as reflecting the state of federal policy at the time those decisions were issued, not as permanent constitutional ceilings, meaning Congress remained free to update the law by recognizing broader tribal authority.
- Applying the separate-sovereigns rule, the Court concluded the tribal prosecution rested on the tribe's own restored sovereign power rather than delegated federal authority, so the federal government's later prosecution for a related but distinct federal offense drew on a different source of power entirely.
Doctrinal impact
Cases affected by this decision
Distinguishes Duro v. Reina (495 U.S. 676)
Court said Duro described tribal power as it existed then, not a permanent constitutional bar Congress could never change.
Reaffirms Wheeler (435 U.S. 313)
Court relied on Wheeler's recognition that tribes retain inherent power to punish their own members.