                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3695
                                    ___________

United States of America,                *
                                         *
                   Appellee,             *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of North Dakota.
Billy Jo Lara, also known as             *
Billy Joe Lara,                          *
                                         *
                   Appellant.            *
                                    ___________

                               Submitted: June 12, 2002

                                   Filed: June 24, 2002
                                    ___________

Before HANSEN, Chief Judge, FAGG and BOWMAN, Circuit Judges.
                              ___________

FAGG, Circuit Judge.

      Bureau of Indian Affairs officers arrested Billy Jo Lara on the Spirit Lake
Nation Reservation for public intoxication. Lara is an Indian, but not a member of
the Spirit Lake Nation. When BIA officers reminded Lara of the order excluding him
from the Spirit Lake Nation Reservation, Lara struck an officer with his fist. Lara
pleaded guilty in tribal court to three violations of the Spirit Lake tribal code,
including violence to a police officer. Later, Lara was charged in federal court with
misdemeanor assault of a federal officer. Lara moved to dismiss the indictment,
claiming the federal charges violated the prohibition against Double Jeopardy and
impermissible selective prosecution. The district court* denied Lara’s motion to
dismiss. Lara then entered a conditional guilty plea, reserving the right to appeal the
denial of his pretrial motions. Having carefully reviewed de novo the district court’s
denial of Lara’s motion to dismiss the indictment, we affirm. United States v. Kriens,
270 F.3d 597, 602 (8th Cir. 2001), cert. denied, No. 01-8961, 2002 WL 424553 (U.S.
Apr. 15, 2002).

       Lara contends the federal prosecution duplicates the tribal conviction, holding
him twice responsible for the same criminal conduct in violation of the Double
Jeopardy Clause. Under the separate sovereign doctrine, a defendant may be
prosecuted by multiple governmental units for the same conduct if the governmental
units draw their authority from separate sources of power. Heath v. Alabama, 474
U.S. 82, 88 (1985). Lara argues the separate sovereign doctrine does not apply
because the Spirit Lake Nation and the federal government draw their power from the
same source, the United States Constitution. The government responds the Spirit
Lake Nation draws its authority from its retained sovereignty, not from a
Congressional delegation of power. According to the Government, the Spirit Lake
Nation is a separate sovereign and the successive federal prosecution is permissible.
Resolution of Lara’s contention, then, depends on the Spirit Lake Nation’s source of
power to prosecute Lara.

       The Supreme Court concluded that Indian nations draw their authority to
prosecute criminal offenses by tribal members from the Indian nation’s retained
sovereignty and that tribal courts do not have jurisdiction over nonIndians. United
States v. Wheeler, 435 U.S. 313, 325-26 (1978); Oliphant v. Suquamish Indian Tribe,
435 U.S. 191, 195 (1978) (tribes have no jurisdiction over nonIndians). In 1990, the
Supreme Court ruled that Indian nations lacked authority to prosecute nonmember


      *
       The Honorable Alice R. Senechal, United States Magistrate Judge for the
District of North Dakota, sitting by consent of the parties under 28 U.S.C. § 636(c).

                                         -2-
Indians for criminal acts. Duro v. Reina, 495 U.S. 676, 685 (1990). Duro concluded
by noting that any practical deficiencies in the present jurisdictional scheme should
be addressed by Congress, “which has the ultimate authority over Indian affairs.” Id.
at 698. Immediately after Duro issued, Congress amended the Indian Civil Rights
Act (ICRA), redefining tribal powers of self-government to include “the inherent
power of Indian tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians.” 25 U.S.C. § 1301(2) (1994). Thus the amended ICRA
clarifies that Indian nations have jurisdiction over criminal acts by Indians, whether
the Indians are tribal members or nonmembers.

       Because the courts are obligated to interpret the Constitution and declare what
the law is, it is important to distinguish whether Duro was based on constitutional law
or federal common law. Cooper v. Aaron, 358 U.S. 1, 18 (1958). If Duro is a
constitutional opinion, we must inquire whether Congress had the authority to
overrule the Supreme Court’s decision. Id.; City of Boerne v. Flores, 521 U.S. 507,
536 (1997). On the other hand, if Duro is based on federal common law, Congress
properly clarified its intent by amending the ICRA, and we defer to Congress. United
States v. Enas, 255 F.3d 662, 675 (9th Cir. 2001) (citing Morton v. Mancari, 417 U.S.
535, 551-52 (1974)), cert. denied, 122 S. Ct. 925 (2002).

      The Supreme Court has not addressed the relationship between Duro and the
amended ICRA, or addressed the substantive issue of whether Congress is delegating
authority under the amended ICRA or is recognizing retained tribal authority. We
were presented with these very issues in United States v. Weaselhead, 156 F.3d 818,
821 (8th Cir. 1998), reh’g granted and opinion vacated by, 165 F.3d 1209 (8th Cir.)
(en banc), cert. denied, 528 U.S. 829 (1999). In Weaselhead, an evenly divided en
banc court affirmed the district court’s denial of Weaselhead’s motion to dismiss the
indictment on Double Jeopardy grounds. The district court in Weaselhead concluded
that Congress recognized retained tribal sovereignty when stating that tribes have
criminal jurisdiction over nontribal members. United States v. Weaselhead, 36 F.

                                         -3-
Supp.2d 908, 914-15 (D. Neb. 1997). Although we are not bound by the evenly
divided court’s decision, we reach the same result. See United States v. Grey Bear,
863 F.2d 572, 573 (8th Cir. 1988) (holding an equally divided en banc opinion
decides the case, but has no precedential effect).

       Like the district court, we conclude Duro grounds its holding in federal
common law, not Constitutional law, because Duro discusses tribal sovereignty
without reference to the Constitution. See United States v. Lara, No. C2-01-58, 2001
WL 1789403, *3 (D.N.D. Nov. 29, 2001); see also Enas, 255 F.2d at 673-75;
Weaselhead, 156 F.3d at 825 (dissent). Having concluded tribal sovereignty is
governed by federal common law, we must defer to Congress. Enas, 255 F.2d at 673-
75. The plain language of the amended ICRA together with the amendment’s
legislative history convinces us that Congress intended to recognize inherent tribal
power, not to expressly delegate Congressional authority. Weaselhead, 36 F. Supp.2d
at 912-913 (“Indian tribal-governments have retained the criminal jurisdiction[] over
non-member Indians and [the amendment] is not a delegation of this jurisdiction but
a clarification”) (quoting H. R. Conf. Rep. No. 102-261 at 3-4 (1991)). The Spirit
Lake Nation, then, draws its power to prosecute Lara from its retained sovereignty.
Because tribal authority and federal authority arise from the separate sources of the
tribe’s inherent power and the federal Constitution, the Double Jeopardy clause is not
offended by two separate sovereigns convicting Lara for crimes arising from the same
conduct. See Enas, 255 F.3d at 675; United States v. Archambault, 174 F. Supp.2d
1009, 1022 (D.S.D. 2001); Weaselhead, 36 F. Supp.2d at 915.

      Next, Lara contends the federal Government’s decision to prosecute him for
misdemeanor assault resulted from impermissible selective prosecution based on race.
We disagree. At issue is the United States Attorneys’ policy of not prosecuting
federal misdemeanors for acts that resulted in earlier state or federal convictions,
known as the Petite policy. United States Attorneys’ Manual § 9-2.031 (describing
the Petite policy regulating successive misdemeanor prosecutions). Lara’s selective

                                         -4-
prosecution claim must fail because the Petite policy does not confer substantive
rights. United States v. Basile, 109 F.3d 1304, 1308 (8th Cir. 1997). And even if it
did, Lara failed to show that the Petite policy has a discriminatory effect and is
motivated by a discriminatory purpose. United States v. Armstrong, 517 U.S. 456,
465 (1996).

      We thus affirm the district court’s denial of Lara’s motion to dismiss the
indictment.

HANSEN, Circuit Judge, dissenting.

       I respectfully dissent. In my opinion, Lara cannot be subject to a federal
prosecution that duplicates his tribal conviction because the tribe’s authority to assert
criminal jurisdiction over him, a nonmember Indian, is congressionally delegated.
Where two sovereigns draw their authority from the same source of power, the
Double Jeopardy Clause prohibits a second conviction involving the same criminal
conduct. See Heath, 474 U.S. at 88. In my view, the vacated panel opinion in United
States v. Weaselhead, 156 F.3d 818 (8th Cir. 1998), authored by Judge Wollman, sets
out the correct analysis, and I have taken the liberty to draw freely from it.

       As drafted, the revisions to the ICRA purport to simply recognize and affirm
“the inherent power” which (contrary to the Supreme Court’s interpretation and prior
holdings) Indian tribes have always held “to exercise criminal jurisdiction over all
Indians.” 25 U.S.C. § 1301(2). The court today holds that Congress is permitted, as
a matter of federal common law, to recast history in a manner that alters the Supreme
Court’s stated understanding of the fundamental organizing principles by which
Indian tribes were incorporated into our constitutional system of government as
recognized in Duro, Wheeler, and Oliphant. Because those principles are not only
based on federal common law but are also most firmly grounded in constitutional
principles, I would hold that while Congress may certainly delegate new powers to

                                          -5-
tribes, it may do so only under constitutional constraints. It may not rewrite the
history of retained sovereignty under the label of federal common law.

       By virtue of their status as the aboriginal people of this continent, Indian tribes
retain certain incidents of their preexisting inherent sovereignty. Among these is the
right to internal self-government, which “includes the right to prescribe laws
applicable to tribe members and to enforce those laws by criminal sanctions.”
Wheeler, 435 U.S. at 322. If the power to punish nonmember Indians emanated from
a tribe’s inherent sovereignty, double jeopardy would not be implicated by a
subsequent federal prosecution for the same conduct. If, however, the ultimate source
of power authorizing a tribal criminal conviction is “an aspect of the sovereignty of
the Federal Government which has been delegated to the tribes by Congress,” the
Double Jeopardy Clause would bar a subsequent federal prosecution. Id.

       “The sovereignty that the Indian tribes retain is of a unique and limited
character” which “exists only at the sufferance of Congress and is subject to complete
defeasance.” Wheeler, 435 U.S. at 323. The Court stated in Wheeler, that “the
sovereign power of a tribe to prosecute its members for tribal offenses clearly does
not fall within that part of sovereignty which the Indians implicitly lost by virtue of
their dependent status. The areas in which such implicit divestiture of sovereignty
has been held to have occurred are those involving the relations between an Indian
tribe and nonmembers of the tribe.” Id. at 326. “[T]he dependent status of Indian
tribes within our territorial jurisdiction is necessarily inconsistent with their freedom
independently to determine their external relations.” Id.

      The Supreme Court’s holding in Duro, which states that Indian tribes do not
have inherent sovereignty to assert criminal jurisdiction over nonmember Indians, is
grounded in constitutional law. In Duro, the Court confirmed its earlier statements
characterizing the dependent status of tribes and their power of internal self
governance, as well as our prior conclusion that, at least in criminal matters, a tribe’s

                                           -6-
inherent sovereign powers extend only to tribe members, irrespective of an
individual’s racial status as an Indian. 495 U.S. at 686; see also, Greywater v. Joshua,
846 F.2d 486, 493 (8th Cir. 1988) (“We thus conclude that the Tribe’s authority to
prosecute nonmember Indians is nonexistent.”). The Court in Duro recognized that
when a criminal prosecution reflects a “manifestation of external relations between
the Tribe and outsiders,” including nonmember Indians, this type of power is
necessarily “inconsistent with the Tribe’s dependent status, and could only have come
to the Tribe by delegation from Congress.” 495 U.S. at 686. Importantly, the Court
stated that any such congressional delegation of power is “subject to the constraints
of the Constitution.” Id. The Court explained that “[t]he exercise of criminal
jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but
also to the prosecuting power of the tribe, and involves a far more direct intrusion on
personal liberties.” Id. at 688. Because all Indians are also full citizens of the United
States, such an intrusion necessarily implicates “constitutional limitations,” and we
must reject “an extension of tribal authority over those who have not given the
consent of the governed that provides a fundamental basis for power within our
constitutional system.” Id. at 693-94.

      The Duro Court further stated:

      Criminal trial and punishment is so serious an intrusion on personal
      liberty that its exercise over non-Indian citizens was a power necessarily
      surrendered by the tribes in their submission to the overriding
      sovereignty of the United States. We hesitate to adopt a view of tribal
      sovereignty that would single out another group of citizens, nonmember
      Indians, for trial by political bodies that do not include them. As full
      citizens, Indians share in the territorial and political sovereignty of the
      United States. The retained sovereignty of the tribe is but a recognition
      of certain additional authority the tribes maintain over Indians who
      consent to be tribal members. Indians like all other citizens share
      allegiance to the overriding sovereign, the United States. A tribe’s



                                          -7-
      additional authority comes from the consent of its members, and so in
      the criminal sphere membership marks the bounds of tribal authority.

495 U.S. at 693 (internal quotations omitted). Thus, “the sovereignty retained by the
tribes in their dependent status within our scheme of government” does not include
the power of criminal jurisdiction over nonmembers, even if they are Indians. Id. at
684.

       While the Supreme Court has not yet had occasion to directly construe the post-
Duro revision of the ICRA, the Court has since affirmed the principle that jurisdiction
of an Indian tribe over nonmembers of the tribe, irrespective of race, is not within
“[g]eneral principles of ‘inherent sovereignty’” and is not possible, absent an
affirmative delegation of power from Congress. See South Dakota v. Bourland, 508
U.S. 679, 694-95 (1993). Additionally, a subsequent concurring opinion recognized
that since Duro, “Congress passed a statute expressly granting tribal courts . . .
jurisdiction” over nonmember Indians, and distinguishing Duro factually by
explaining that “here, we are concerned with the extent of tribes’ inherent authority,
and not with the jurisdiction statutorily conferred on them by Congress” as in the
post-Duro amendment context. Nevada v. Hicks, 533 U.S. 353, 377 n.2 (2001)
(Souter, J., concurring).

       Prior to the revisions, tribal criminal jurisdiction over nonmember Indians did
not exist as it had been “necessarily surrendered by the tribes in their submission to
the overriding sovereignty of the United States.” Duro, 495 U.S. at 693. It is beyond
Congress’s power to declare that the inherent sovereignty of a tribe has always
provided it with criminal authority over nonmember Indians where the Supreme
Court has found the facts to be otherwise. It is my opinion that the “ascertainment of
first principles regarding the position of Indian tribes within our constitutional
structure of government is a matter ultimately entrusted to the Court and is thus
beyond the scope of Congress’s authority to alter retroactively by legislative fiat.


                                         -8-
Fundamental, ab initio matters of constitutional history should not be committed to
‘[s]hifting legislative majorities’ free to arbitrarily interpret and reorder the organic
law as public sentiment veers in one direction or another.” Weaslehead, 156 F.3d at
824 (quoting City of Boerne v. Flores, 521 U.S. 507, 529 (1997)) (alteration in
original) (opinion vacated). This conclusion is firmly grounded in constitutional
principles which guarantee equal protection to all citizens regardless of race** and
also protect personal liberties; it is inextricably linked to the very basis on which our
constitutional system was established–that the authority to govern is derived from the
consent of the governed. Thus, in spite of Congress’s attempt to characterize this
grant of authority as a mere recognition of a power that has always existed, the post-
Duro amendment can be nothing more nor less than an affirmative delegation of
jurisdiction from Congress to the tribes, the validity of which is not at issue in this
case.

       Because the power of the tribe to punish nonmember Indians emanates solely
from a congressional delegation of authority, the tribal court and the federal court in
which a second conviction is now sought to be secured do not “draw their authority
to punish the offender from distinct sources of power” but from the identical source.
Heath, 474 U.S. at 88. That single source is the legislative authority of the federal
Congress exercising, with the President's approval, the power of the United States as
the overriding sovereign under the Constitution. The dual sovereignty limitation on
the constitutional protection from double jeopardy is therefore inapplicable, and the
Double Jeopardy Clause bars the federal prosecution of Lara for the same conduct
that provided the factual basis for his earlier conviction in tribal court.




      1
        The Equal Protection Clause of the Fourteenth Amendment is made applicable
to the federal government through the Fifth Amendment’s Due Process Clause. See
Bolling v. Sharpe, 347 U.S. 497, 499 (1954); United States v. Iron Shell, 633 F.2d 77,
89 n.17 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

                                          -9-
      For these reasons, I would reverse the district court’s denial of Lara’s motion
to dismiss the indictment. I respectfully dissent.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -10-
