General Guide to Criminal Jurisdiction in Indian Country
Jurisdiction: 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)
Criminal Jurisdiction: In a criminal case, jurisdiction is the power or authority of the court to try and to punish the accused for any 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:
For a much more detailed Indian Country criminal jurisdiction chart - please see the official Jurisdictional Summary Chart from the U.S. Department of Justice, United States Attorneys Manual, Title 9, Criminal Resource Manual.
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: Tribal courts no longer have criminal jurisdiction over non-Indians, unless Congress delegates such power to them. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
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.”
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:
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.