#11476 - Criminal Jurisdiction - Federal Indian Law

History

1. Tribes originally had jurisdiction over crimes committed between tribal members

   1. Lost it in late 1800s

2. Problems:

   1. will be brought to sometimes far away federal court

      1. high travel costs

      2. there are also tensions between rural populations and the tribes so a court closer to the tribe is not necessarily better

   2. lawyers, judges and juries often will not be tribal members

   3. even if held local lawyers will try and keep tribal members off the jury

   4. sometimes speak different languages

   5. sometimes the tribes have fundamentally different notions of justice and are forced to work within the federal system

   6. prosecutors are seen as outsiders, NAs don’t necessarily trust them, meaning they are unwilling to talk/tell the truth

   7. resources are stretched thin – reservation crimes are expensive bc difficult to get witnesses, lots of travel involved, translators etc – this makes making tribal crimes difficult to prioritize

3. The result of all of these problems is under enforcement of crimes on reservations

   1. high rates of crimes especially DV and sexual abuse

4. Two Major federal criminal statutes in Indian country

   1. Major Crimes Act

      1. Applies only to Indian perpetrators

         1. law created after outrage in Crow Dog

      2. Applies to most serious felonies

         1. list of crimes which court has jurisdiction over see p. 315

            1. if anything listed is not punishable under federal law then state law will be applied

      3. Whether tribal court has concurrent jurisdiction over Major Crimes is an “open question” according to S. Ct.

         1. most courts have held that they can

   2. Indian Country Crimes Act

      1. Basically gave Federal government exclusive criminal jurisdiction in Indian country

         1. EXCEPT for crimes between two Indians

         2. EXCEPT for crimes the tribe already punished

      2. Assimilative Crimes Act applies in Indian Country

         1. if Federal government doesn’t have a law for it but the state in which the territory lies does then the person shall be guilty of the offense and subject to a similar crime

         2. this applies only if it does not conflict with Federal law

5. Both major laws act on two presumptions

   1. states have no criminal jurisdiction in Indian country

   2. tribes retain all aspects of their inherent sovereignty which Congress has not expressly taken away

      1. But these presumptions were limited

         1. Public Law 280

         2. Oliphant: as a matter of Federal Common Law, tribes cannot exercise criminal jurisdiction over non-Indians

6. Tribal Law and Order Act

   1. gives more funds for tribal law enforcement

   2. more authority to tribal authorities

   3. raised maximum amount for criminal monetary penalty

   4. tribes must meet certain minimum procedures like states: must have PD for example

7. VAWA

   1. overturns part of Oliphant, allows tribes to prosecute DV cases even when non-Indian perpetrators are involved

   2. DV has been a huge problem on reservations

      1. DV is generally difficult to prosecute and feds aren’t good at the long term monitoring needed

      2. often members are married to non-members living on tribal lands but tribe wouldn’t have the jurisdiction to prosecute

8. PL 280

9. Crime on reservations

   1. the big substantive problem the tribes face is their inability to prosecute non members

      1. makes reservations a haven for criminals who think they are less likely to get in trouble

   2. tribes do get funding for their courts and for law enforcement

      1. but its often not enough to fully operate

McBratney

1. state has EXCLUSIVE jurisdiction over non-indian committing crime against non-Indian on tribal lands

Oliphant

1. Tribal courts lack the authority to prosecute crimes committed by non-Indians

Who Counts as an Indian?

1. For the purposes of criminal jurisdiction (different for different areas of federal Indian law) a person is an Indian if:

   1. the person has some Indian blood AND

   2. the person is recognized as an Indian by the federally recognized tribe or the federal government

      1. membership is neither necessary or sufficient

         1. doesn’t need to be as intense as membership – need only be recognized as a person with a strong connection to the tribe

         2. if you’re an enrolled member but live off in a city somewhere with few ties to the tribe they may not have jurisdiction

      2. the rule is not brightline and can lead to ambiguities

      3. Congress has generally focused on Indian/non Indian rather than tribe member/non tribe member

Crisis of Criminal Justice in Indian Country: Does the jurisdictional “crazy quilt” work?

1. Doesn’t seem like it given states of victimization and incarceration in Indian country

2. Causes of the problem

   1. possibly lack of federal prosecution

      1. federal prosecutorial offices are not set up to take care of cases that they would usually rely on the states to do

      2. cooperation with and reliance on federal prosecutors are low on reservations for historical reasons

   2. tribal courts cannot fill the gap

      1. they are given limited jurisdiction

         1. no jail for more than 1 year

         2. no fine greater than $5000

      2. they face some of the same legitimacy problems that federal courts have in Indian country

   3. States seem not to help or even make the problem worse

      1. states don’t want to spend funding in Indian country

      2. one positive thing happening is cross-deputization agreements between tribes and states
         
         Modern Diminishment of Tribal Sovereignty

1. Oliphant v. Suquamish Indian Tribe

   1. RULE: tribes may not criminally prosecute nonmembers

   2. tribe seeks to establish criminal jurisdiction over 2 people that were causing problems at a tribal festival

   3. Good facts for tribes

      1. there were signs letting people know that by entering the reservation they were implying consent to tribal jurisdiction

      2. the Ds were pretty obnoxious bad actors

   4. Bad facts

      1. majority of the people on the reservation were non members

      2. non members were not allowed on juries

   5. Applying the Cohen framework here:

      1. started out with full sovereignty

      2. lost some but not an issue of negotiation on international scale so shouldn’t matter here

      3. doesn’t seem like there is any treaty language on point

      4. there doesn’t seem to be any clear statute that strips tribes of jurisdiction

         1. ct points to something but should be a clear statement bc of canons

      5. It seems that ICRA was also trying to give the tribes jurisdiction

         1. but ct doesn’t mention it

   6. Applying the framework it would seem that there is jurisdiction but ct HOLD: No jurisdiction

      1. Ct. relies on very shaky historical arguments that it’s been assumed that tribes did not have this power

      2. tribes are part of the US, their sovereignty cannot conflict with broader US sovereignty

      3. criminal jurisdiction of the same kind of sovereignty as that lost during doctrine of discovery

   7. The court’s analysis does not seem to fit within Cohen framework

      1. when was this sovereignty lost?

         1. possibly stretching step 2?

            1. step 2 seems to be where court has made common law...