UNITED STATES of America, Appellee, v. Billy Jo LARA, also known as Billy Joe Lara, Appellant, 294 F.3d 1004

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, — U.S. -, 122 S.Ct. 1586, 152 L.Ed.2d 504 (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, 106 S.Ct. 433, 88 L.Ed.2d 387 (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 nonlndians. United States v. Wheeler, 435 U.S. 313, 325-26, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) (tribes have no jurisdiction over nonlndians). In 1990, the Supreme Court ruled that Indian nations lacked authority to prosecute nonmember Indians for criminal acts. Duro v.

Reina, 495 U.S. 676, 685, 110 S.Ct. 2053, 109 L.Ed.2d 693 (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, 110 S.Ct. 2053. 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, 78 S.Ct. 1401, 3 L.Ed.2d 5 (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, 117 S.Ct. 2157, 138 L.Ed.2d 624 (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, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)), cert. denied, — U.S. —, 122 S.Ct. 925, 151 L.Ed.2d 888 (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, 120 S.Ct. 82, 145 L.Ed.2d 70 (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.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.3d 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.3d 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 nonmember 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 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, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). We thus affirm the district court’s denial of Lara’s motion to dismiss the indictment. 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).