Court Upholds Tribal Power It Once Denied

WASHINGTON, April 19 - The Supreme Court ruled Monday that Indian tribes have the authority to prosecute members of other tribes for crimes committed on their reservations. And because tribes act as sovereign nations in such prosecutions, the court said, ordinary principles of double jeopardy do not apply and do not bar the federal government from bringing a subsequent prosecution for the same offense.

The 7-to-2 decision was welcomed by Indian tribes, which in a 1990 Supreme Court decision lost the authority to enforce their criminal laws against members of other tribes. Congress promptly amended the Indian Civil Rights Act to restore that power. The case on Monday required the Supreme Court to decide both the nature and the validity of the Congressional action.

Indian law is complex, and the answers to these questions were not obvious. The practical implications were evident, however. Under a doctrine devised by the Supreme Court in 1922, the constitutional protection against double jeopardy does not apply to consecutive prosecutions by "separate sovereigns" - typically, a state prosecution followed by a federal prosecution, or vice versa.

Under Supreme Court precedent, tribes lack power to prosecute non-Indians. Precedent also makes clear that a tribe exercises its sovereign authority when it prosecutes its own members, and that double jeopardy therefore does not apply. The question in the new case was whether, in exercising its restored authority to prosecute nonmembers, a tribe continues to act as a sovereign.

The defendant, Billy Jo Lara, is a Chippewa who married a member of a different North Dakota tribe, the Spirit Lake Tribe, and was living on the Spirit Lake Reservation. The Spirit Lake Tribe convicted him in its tribal court for assaulting an officer of the federal Bureau of Indian Affairs. When the federal government then charged him for the same incident, on a count of assaulting a federal officer, Mr. Lara argued that the Fifth Amendment's protection against double jeopardy barred the new prosecution.

The Federal District Court in North Dakota and a panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, allowed the federal prosecution. But the full Eighth Circuit court, voting 7 to 4, ruled that the tribe had exercised a federal prosecutorial power and ordered the indictment dismissed.

The Supreme Court overturned that decision on Monday. In the majority opinion, Justice Stephen G. Breyer wrote that the 1990 law had the effect of "relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes." In prosecuting Mr. Lara, he concluded, the tribe "acted in its capacity of a separate sovereign" under a power that Congress had the authority to restore.

The decision, United States v. Lara, No. 03-107, was joined fully by only four other justices: Chief Justice William H. Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg. Justices Anthony M. Kennedy and Clarence Thomas wrote separate opinions concurring only in the result. Justice Thomas said the court's many cases on tribal sovereignty were confusing and in need of reappraisal. "Until we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases," he wrote.

Justice David H. Souter wrote a dissenting opinion that Justice Antonin Scalia joined. They said that a tribe's criminal jurisdiction over nonmembers "necessarily rests on a delegation of federal power."

Separately on Monday, the court agreed to hear a case on whether an arrest is valid if the police later change their theory for making it.

In this case, a man sued two Washington state troopers for false arrest after he was jailed overnight for tape-recording his conversations with them during a traffic stop. The officers had told the man, Jerome A. Alford, that he was under arrest for violating the state's Privacy Act. When they learned that the law did not apply to conversations with police officers, the troopers claimed they had probable cause to arrest Mr. Alford on suspicion of impersonating an officer, saying he had police equipment and headlights.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, rejected that argument, holding that even if probable cause for the impersonation arrest existed, it could not be recognized unless it was "closely related" to the crime cited at the time of the arrest. The lower federal courts disagree on the validity of the "closely related" doctrine, and the justices accepted the case, Devenpeck v. Alford, No. 03-710, to resolve the dispute.