Tribal Court Clearinghouse          
SEARCH      
 

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.

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:

(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.

Tribal, Federal, and State Jurisdiction
Tribal Criminal Jurisdiction

General Scope of Criminal Jurisdiction in Indian Country*
 

Type of Crime                                     

  "Major" Crime (as defined by Major Crime Acts) All Other Crimes
Indian perpetrator,
Indian victim
Federal (under Major Crimes Act) & Tribal jurisdiction Tribal jurisdiction
Indian perpetrator,
Non-Indian victim
Federal (under Major Crimes Act) & Tribal jurisdiction Federal (under General Crimes Act) & Tribal jurisdiction
Non-Indian perpetrator,
Indian victim
Federal (under General Crimes Act) jurisdiction Federal (under General Crimes Act) jurisdiction
Non-Indian perpetrator,
Non-Indian victim
State jurisdiction State jurisdiction

* Please note that this general criminal jurisdiction chart does not apply to jurisdiction where Public Law 280, 18 U.S.C. 1162, or other relevant federal statutes, have conferred jurisdiction upon the state.

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:

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.

 

Tribal Law and Policy Institute Logo

QUICK LINKS

Tribal Law and Policy Institute
Institute Publications
Institute Webinars
Contact the Institute
Institute Philosophies/Approach to Training
About the Clearinghouse
Tribal Court Mentors Circle

Federal Agencies

Administration for Children and Families (ACF)
Administration for Native Americans (ANA)
American Indian Environmental Office
BIA Office of Justice Services
Bureau of Indian Affairs (BIA)
Bureau of Indian Education
Bureau of Justice Assistance (BJA)
HUD's Office of Native American Programs (ONAP)
Indian Law and Order Commission (ILOC)
Office for Victims of Crime
Office of Community Oriented Policing Services (COPS)
Office of Juvenile Justice and Delinquency Prevention (OJJDP)
Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office)
Office of Tribal Justice (OTJ)
Office on Violence Against Women
Substance Abuse and Mental Health Services Administration (SAMHSA)
Tribal Justice and Safety in Indian Country
Tribal Youth Program

more . . .

Native Organizations

California Indian Legal Services
National American Indian Court Judges Association (NAICJA)
National American Indian Housing Council (NAIHC)

National Congress of American Indians (NCAI)

National Indian Child Welfare Association (NICWA)

National Indian Country Clearinghouse on Sexual Assault (NICCSA)

National Child Welfare Resource Center for Tribes (NRC4Tribes)

Native American Children’s Alliance (NACA)

Native American Rights Fund (NARF)

Native Elder Health Care Resource Center
Navajo Nation Bar Association
Southwest Center For Law And Policy

Walking on Common Ground

Native Law Blogs

Tribal Law Updates
Alaska Indigenous
Falmouth Institute/American Indian Report
ICWA Info Blog
Indian Legal Program – Sandra Day O’Connor College of Law
Legal History Blog
Legal Scholarship Blog
NARF News
National Indian Law Library Blog
Native America, Discovered and Conquered
Native American Legal Update
Turtle Talk
 

Donate Now Through Network for Good

- Top of Page -