United States v. Lara

1. One way of thinking about this case is to ask, when a tribe prosecutes a non-member Indian for crimes committed on the tribe's own land, is it (1) exercising its own sovereignty so that subsequent prosecution by the federal government for essentially the same actions would NOT be barred by Double Jeopardy, or it (2) exercising delegated federal authority so that subsequent prosecution by the federal government for essentially the same offense would presumably be barred by Double Jeopardy?  And of what relevance is it that the Supreme Court decided in Duro v. Reina that tribes did not have inherent authority to prosecute non-member Indians committing crimes on tribal lands?

2. The majority rightly decides that the equal protection and due process arguments are not properly before the court. But isn't there a strong equal protection argument of race-based discrimination that would have grave difficulty meeting strict scrutiny? White non-tribal person commits crime on Indian reservation. Tribal courts lack power. Indian of a completely different tribe commits the same crime on the same reservation. Tribal courts have power. On the other hand, perhaps Indians are not a racial group but a political one, and therefore strict scrutiny should not apply. See Morton v. Mancari, 417 U.S. 535 (1974) (holding that in at least one context, Indians are not a racial group). Could the unequal treatment of non-member Indians and white persons meet the rational basis test or some lower level of scrutiny?

3. Also, if membership in some Indian tribe is a prerequisite for prosecution, how must it be proven? More likely than not? Beyond a reasonable doubt? The whole issue is examined in some detail in Las Vegas Tribe of Paiute Indians v. Phebus, 5 F. Supp. 3d 1221 (D. Nev. 2014)(purporting to distinguish an earlier 9th Circuit case by which the Nevada federal court was bound!)

4. Justice Thomas calls into question the notion that the Indian Commerce Clause gives Congress plenary authority to regulate Indians and tribes. Clearly (Lopez, Morrison), the interstate commerce clause doesn't give Congress plenary power to regulate the states. What do you make of Justice Thomas' claim? Think about it again when you read the Adoptive Couple case.