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General Guide to Criminal Jurisdiction in Indian Country

Jurisdiction can be defined as the power or authority of a court over a particular person, area, or subject matter.

Tribal Legal Code Resource: Tribal Laws Implementing TLOA Enhanced Sentencing and VAWA Enhanced Jurisdiction Guide for Drafting or Revising Tribal Laws to Implement the Enhanced Sentencing Provisions of the Tribal Law and Order Act (TLOA) and the Special Jurisdiction Provisions of the Violence Against Women Reauthorization of 2013 (VAWA 2013) provides guidance for tribes who are interesting in implementing the enhanced sentencing provisions in TLOA and/or the special domestic violence criminal jurisdiction over non-Indians provisions in VAWA 2013. This resource provides an overview of the enhanced powers recognized by each statute and explores ways that tribes can comply with the requirements of the federal statutes. The resource contains five sections and fourteen chapters. Part I provides an overview of the statutes, background, and considerations in deciding whether to implement. Parts II, II, and IV examine in more detail the requirements tribes must meet in order to exercise the powers recognized by TLOA and VAWA 2013. Part V. provides links to relevant online resources and a model tribal code.

Criminal Jurisdiction: In a criminal case, jurisdiction is the power or authority of the court to try and to punish the accused for a violation of a government’s penal (or criminal) code.

How Does a Criminal Action Differ from a Civil Action: Criminal actions generally differ from civil actions in at least two important ways. First, the government itself generally brings criminal actions to protect the public interest or the community as a whole whereas civil actions are generally brought by one private party against another private party. Second, the available sanctions in a criminal action include imprisonment whereas imprisonment is not available as a remedy in civil actions (except for the court’s contempt power). It is important to note, however, that these distinctions between criminal and civil actions have been developed from Anglo-American law and did not necessarily exist in traditional Native justice systems.

What is Indian Country? The definition of Indian Country is set forth by federal law (18 U.S.C. § 1151) as follows:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. 

Criminal Jurisdiction on Reservations Not Affected by PL 280/State Jurisdiction

Indian Status

Type of Crime

Major Crime

(as defined by Major Crimes Act (MCA))

All Other Crimes

Indian perpetrator,

Indian victim*

Federal (under MCA) and tribal jurisdiction

Tribal jurisdiction

Indian perpetrator,

non-Indian victim**

Federal (under MCA) and tribal jurisdiction

Federal (under General Crimes Act) and tribal jurisdiction

Non-Indian perpetrator,

Indian victim

Federal jurisdiction (under General Crimes Act)***

Federal (under General Crimes Act) jurisdiction***

Non-Indian perpetrator,

non-Indian victim

State jurisdiction

State jurisdiction

* If the offense is listed in the Major Crimes Act (MCA), there is federal jurisdiction, exclusive of the state, but not the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the United States, state law is used in federal courts. See section 1153(b). If not listed in MCA, the tribal jurisdiction is exclusive.

** If listed in the Major Crimes Act (MCA), there is federal jurisdiction, exclusive of the state, but probably not of the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the United States, state law is used in federal courts. If not listed in MCA, there is federal jurisdiction, exclusive of the state, but not of the tribe, under the General Crimes Act. If the offense is not defined and punished by a statute applicable within the special maritime and territorial jurisdiction of the United States, state law is used in federal courts under 18 U.S.C. § 13. The United States can prosecute an Indian for a non-MCA crime, provided the tribe has not prosecuted.

*** Tribal jurisdiction for crimes under VAWA 2013 Title IX, when the tribe has opted in to Special Domestic Violence Criminal Jurisdiction (SDVCJ).

Note: There is federal jurisdiction in Indian country for crimes of general applicability.

 

Criminal Jurisdiction for States and Reservations Where PL 280 Applies

Indian Status

Type of Crime

Major Crime

(as defined by Major Crimes Act (MCA))

All Other Crimes

Indian perpetrator,

Indian victim*

State and tribal jurisdiction

State and tribal jurisdiction

Indian perpetrator,

non-Indian victim*

State and tribal jurisdiction

State and tribal jurisdiction

Non-Indian perpetrator,

Indian victim*

State jurisdiction**

State jurisdiction**

Non-Indian perpetrator,

non-Indian victim

State jurisdiction

State jurisdiction

*Under TLOA, a tribal government may request federal concurrent over crimes in PL 280 states, subject to approval of the U.S. Attorney General.

Note: There is federal jurisdiction in Indian country for crimes of general applicability.

** Tribal jurisdiction for crimes under VAWA Title IX, when a tribe has opted in to Special Domestic Violence Criminal Jurisdiction (SDVCJ).


 

Inherent Sovereign Authority: Indian tribes - as sovereign nations - historically have inherent jurisdictional power over everything occurring within their territory. Tribal courts are courts of general jurisdiction which continue to have broad criminal jurisdiction. Any analysis of tribal criminal jurisdiction should begin with this sovereign authority and determine whether there has been any way in which this broad sovereign authority had been reduced (see below).

Federal or State Concurrent Jurisdiction: Congress has granted limited jurisdictional authority to the federal courts (under the General Crimes Act and the Major Crimes Act) and to state courts (under Public Law 280). It is important, however, to note that tribal courts maintain concurrent (or joint) criminal jurisdiction.

Criminal Jurisdiction over Non-Indians: The U.S. Supreme Court decision Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) limits the ability of Native Nations to try and punish non-Indians. Under this decision, Native Nations generally do not have jurisdiction to prosecute non-Indians. The Violence Against Women Act Reauthorization of 2013 slightly modified this decision however. A Native Nation may choose to exercise “Special Domestic Violence Criminal Jurisdiction (SDVCJ) and exert their inherent ability to prosecute non-Indians who commit the following offenses: domestic violence, sexual assault, dating violence, and violation of protection orders. In order to exercise SDVCJ, the Nation must meet certain requirements. The resource listed at the top of this page, TLPI’s Tribal Code Resource: Implementing TLOA and VAWA 2013 has a greater discussion of the requirements and provides examples of tribal codes and provides more information and guidance on this topic.

Criminal Jurisdiction over Non-Member Indians: The Supreme Court ruled that tribal courts did not have criminal jurisdiction over non-member Indians. Duro v. Reina, 495 U.S. 676 (1990). Congress, however, overturned this decision and restored tribal court criminal jurisdiction over non-member Indians by adding the following language to the definition of “powers of self-government” in the Indian Civil Rights Act (25 U.S.C. § 1301) - “means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians” (Public Law 102-137).

Sentencing Limitation: The Indian Civil Rights Act ((25 U.S.C. § 1301 (Definitions); § 1302 (Constitutional rights); § 1303 (Habeas corpus)) provides that tribal courts cannot “impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year or a fine of $5,000 or both.” If a person is convicted of more than one crime (e.g., domestic violence and kidnapping), federal law allows up to one year for each offense. The Tribal Law and Order Act (TLOA) 25 U.S.C. § 1302 amended ICRA, thus increasing tribal court authority to incarcerate for up to three years and/or fine up to $15,000 for one offense. However, if a tribal court orders incarceration for more than one year, it must:

  • Provide licensed legal counsel for an indigent defendant at tribal expense (The defense attorney must be licensed to practice law by a tribe, state, or federal government in a manner that ensures professional competence and responsibility.);
  • Ensure that tribal court judges are law trained and licensed;
  • Publish criminal laws, rules of evidence, and procedure; and
  • Maintain an audio or video record of the criminal trial.

Incarceration for more than a year also requires that the defendant either was previously convicted of the crime or that the crime is one that would carry a penalty of more than a year if prosecuted in a state or federal court. The TLOA also allows for the defendant to be convicted of more than one offense at a time, allowing incarceration for up to nine years. 25 U.S.C. § 1301(a)7D Indian Civil Rights Act does not limit other forms of sanctions—including restitution, banishment, and probation.

Charging Defendant in both Federal and Tribal Court is NOT a violation of Double Jeopardy: The U.S. Supreme Court has held that the source of the power to punish offenders is an inherent part of tribal sovereignty and not a grant of federal power. Consequently, when two prosecutions are by separate sovereigns, (e.g. the Navajo Nation and the United States), the subsequent federal prosecution does not violate the defendant’s right against double jeopardy. United States v. Wheeler, 435 U.S. 313 (1978).

Federal Criminal Jurisdiction

Federal courts are courts of limited jurisdiction (that is, they cannot hear all cases - there must be specific constitutional or statutory authority in order to bring a case in federal court). Congress has granted criminal jurisdiction in Indian country to the federal courts in certain circumstances, including the following:

General Crimes Act (18 U.S.C.§ 1152): This federal statue (enacted in 1817 and set forth below) provides that the federal courts have jurisdiction over interracial crimes committed in Indian country as set forth below:

Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except in the District of Columbia, shall extend to the Indian Country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian Country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

Major Crimes Act (18 U.S.C. § 1153): The Major Crimes Act (enacted following the U.S. Supreme Court’s 1883 Ex Parte Crow Dog decision) provides for federal criminal jurisdiction over seven major crimes when committed by Indians in Indian country. Over time, the original seven offenses have been increased to sixteen offenses currently.

State Criminal Jurisdiction

The states generally do not have jurisdiction over crimes occurring in Indian Country with three exceptions set forth below:

Public Law 280 (18 U.S.C. § 1162): Congress in 1953 authorized states to exercise jurisdiction over offenses by or against Indians. Public Law 280 provided for broad state concurrent criminal jurisdiction on those states and reservations impacted by Public law 280 (both mandatory states and those states which opted to assume PL280 jurisdiction).

Other Federal Acts conferring State Jurisdiction: Some tribes have been affected by federal legislation in which states have received a federal mandate to exercise jurisdiction outside of Public Law 280, e.g., through state-wide enactments, restoration acts, or land claims settlement acts.

Non-Indian v. Non-Indian Crimes: The U.S. Supreme Court ruled in United States v. McBratney, 104 U.S. 621 (1881), and Draper v. United States, 164 U.S. 240 (1896), that state courts have jurisdiction to punish wholly non-Indian crimes in Indian country.

Criminal Actions May Need to Be Treated as Civil Actions in Certain Circumstances

Please note that actions which might be treated as a criminal action in federal or state court may need to be treated as civil actions in tribal courts. This may be due to many factors, including legal jurisdictional limitations (such as the lack of tribal jurisdiction over non-Indians), practical jurisdictional limitations (such as Public Law 280), and resource limitations. Consequently, victims of crime in Indian Country and their advocates may need to research victims’ rights in civil procedures to a much greater extent than would be needed in federal and state courts.

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