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02-1473 U.S. v. Long

By: dmc-admin//March 24, 2003//

02-1473 U.S. v. Long

By: dmc-admin//March 24, 2003//

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“If the Tribe’s sovereign immunity remained intact post-restoration (and we have no quarrel with that conclusion), then we can think of no reason why the Tribe’s criminal jurisdiction should not as well. See also Webster, 338 N.W.2d at 480. But our concern here goes beyond whether Congress successfully restored the Menominee Tribe’s criminal jurisdiction. It is clear that it did. For purposes of the dual sovereignty exception, we must also be satisfied that Congress did so not by delegating federal power to exercise criminal jurisdiction to the Tribe (assuming that such a delegation to a different entity would be possible), but instead by restoring the Tribe’s own sovereign powers, which pre-dated the Termination Act, to exercise criminal jurisdiction. The fact that the Restoration Act uses the word ‘reinstated’ to describe the congressional action is one piece of evidence in favor of the ‘restoration’ reading and against the ‘delegation’ reading. Congress had not delegated any power to the Tribe before the Termination Act, and thus there was nothing from Congress that could have been reinstated. History also supports the conclusion that the Menominee Tribe’s criminal jurisdiction over certain reservation crimes existed before and exists again as a function of the Tribe’s inherent sovereign powers. This case does not involve a people unknown to history before Congress intervened. The Menominee Tribe inhabited the state of Wisconsin long before European explorers reached North American shores. In fact, the Menominee ‘are the oldest known continuous residents in Wisconsin.’ Nancy Oestreich Lurie, Wisconsin Indians 10 (2002). Their history is rich and their retained sovereign rights-though admittedly held at the sufferance of Congress-cannot be disregarded. The most reasonable reading of the Restoration Act is as an effort by Congress to place the Menominee back in the position they held before the Termination Act. Any other result would place the Menominee on different footing than those tribes newly recognized by Congress, as well as those tribes that by chance were spared the termination experiment. (There are currently about 550 federally recognized Indian tribes. Approximately 110 tribes and bands were terminated in various acts by Congress. See Michael C. Walch, Note, 35 Stan. L. Rev. 1181, 1186 (1983).) We see no sense to such a distinction. And while we assume that Congress neither can nor would confer the status of a tribe onto a random group of people, we have no doubt about congressional power to recognize an ancient group of people for what they are.”

Reversed and Remanded.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Wood, J.

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