Law Outlines Federal Indian Law Outlines
Federal Indian Law outline explains statutory, common, and treatise law that impacts the limits to tribal self governance. Outline topics include: Constitutional and Canonical limits of interpretation, determining tribal and individual status, jurisdictional issues, federal takings, inherent sovereignty, land claims, and ICWA. Outline includes charts on jurisdiction to make navigating through the many tricky issues of criminal and civil jurisdiction easy. Also includes an attack outline and case ...
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History
Tribes originally had jurisdiction over crimes committed between tribal members
Lost it in late 1800s
Problems:
will be brought to sometimes far away federal court
high travel costs
there are also tensions between rural populations and the tribes so a court closer to the tribe is not necessarily better
lawyers, judges and juries often will not be tribal members
even if held local lawyers will try and keep tribal members off the jury
sometimes speak different languages
sometimes the tribes have fundamentally different notions of justice and are forced to work within the federal system
prosecutors are seen as outsiders, NAs don’t necessarily trust them, meaning they are unwilling to talk/tell the truth
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
The result of all of these problems is under enforcement of crimes on reservations
high rates of crimes especially DV and sexual abuse
Two Major federal criminal statutes in Indian country
Major Crimes Act
Applies only to Indian perpetrators
law created after outrage in Crow Dog
Applies to most serious felonies
list of crimes which court has jurisdiction over see p. 315
if anything listed is not punishable under federal law then state law will be applied
Whether tribal court has concurrent jurisdiction over Major Crimes is an “open question” according to S. Ct.
most courts have held that they can
Indian Country Crimes Act
Basically gave Federal government exclusive criminal jurisdiction in Indian country
EXCEPT for crimes between two Indians
EXCEPT for crimes the tribe already punished
Assimilative Crimes Act applies in Indian Country
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
this applies only if it does not conflict with Federal law
Both major laws act on two presumptions
states have no criminal jurisdiction in Indian country
tribes retain all aspects of their inherent sovereignty which Congress has not expressly taken away
But these presumptions were limited
Public Law 280
Oliphant: as a matter of Federal Common Law, tribes cannot exercise criminal jurisdiction over non-Indians
Tribal Law and Order Act
gives more funds for tribal law enforcement
more authority to tribal authorities
raised maximum amount for criminal monetary penalty
tribes must meet certain minimum procedures like states: must have PD for example
VAWA
overturns part of Oliphant, allows tribes to prosecute DV cases even when non-Indian perpetrators are involved
DV has been a huge problem on reservations
DV is generally difficult to prosecute and feds aren’t good at the long term monitoring needed
often members are married to non-members living on tribal lands but tribe wouldn’t have the jurisdiction to prosecute
PL 280
Crime on reservations
the big substantive problem the tribes face is their inability to prosecute non members
makes reservations a haven for criminals who think they are less likely to get in trouble
tribes do get funding for their courts and for law enforcement
but its often not enough to fully operate
McBratney
state has EXCLUSIVE jurisdiction over non-indian committing crime against non-Indian on tribal lands
Oliphant
Tribal courts lack the authority to prosecute crimes committed by non-Indians
Who Counts as an Indian?
For the purposes of criminal jurisdiction (different for different areas of federal Indian law) a person is an Indian if:
the person has some Indian blood AND
the person is recognized as an Indian by the federally recognized tribe or the federal government
membership is neither necessary or sufficient
doesn’t need to be as intense as membership – need only be recognized as a person with a strong connection to the tribe
if you’re an enrolled member but live off in a city somewhere with few ties to the tribe they may not have jurisdiction
the rule is not brightline and can lead to ambiguities
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?
Doesn’t seem like it given states of victimization and incarceration in Indian country
Causes of the problem
...
Buy the full version of these notes or essay plans and more in our Federal Indian Law Outlines.
Federal Indian Law outline explains statutory, common, and treatise law that impacts the limits to tribal self governance. Outline topics include: Constitutional and Canonical limits of interpretation, determining tribal and individual status, jurisdictional issues, federal takings, inherent sovereignty, land claims, and ICWA. Outline includes charts on jurisdiction to make navigating through the many tricky issues of criminal and civil jurisdiction easy. Also includes an attack outline and case ...
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