by H. Ted Rubin
This article will appear in a forthcoming issue of the Stare Court Journal, published by the National Center for State Courts.
THE TRIBAL COURTS AND STATE COURTS PROJECT:
A FOURTH-YEAR REPORT
H. Ted Rubin'
"The current allocation of criminal jurisdiction in Indian country is based in large part on historic policies which are not consistent with the law enforcement needs of Indians tribes or the self-determination policy. Indian tribes whose communities are directly affected by the commission of a crime are generally better suited to enforce law in Indian country than state or federal government. The maintenance of law and order is vitally important to the peace and stability of the tribal community, as it is to any community. Indian tribes, long recognized as sovereign entities, are well suited to assume this responsibility. Indian tribes rn distinct, independent political communities, exercising governmental power which is inherent in their sovereignty."
Douglas B. L. Endreson (Navajo), a prominent Washington, D.C., attorney who specializes in Indian law and the representation of Indian tribes, made this statement in his "Survey of Criminal Jurisdiction Issues" commissioned by the coordinating council that guides the Tribal Courts and State Courts: The Prevention and Resolution of Jurisdictional Disputes Project, which is administered by the National Center for State Courts.
The project, sponsored by the Conference of Chief Justices, entered into the criminal jurisdiction dispute arena in 1992, following approval by the Conference of Chief Justices. Its earlier work, and much of its ongoing work, has focused on civil jurisdiction disputes such as Indian Child Welfare Act (ICWA) matters, child support enforcement, state-taxing authority in Indian country, state hunting and fishing regulations when exact boundaries of a reservation are not clear, full-faith and credit or comity issues related to recognition or non-recognition of each other's decrees, and other basically civil concerns. 'Editor's Note: This article and the research it describes were supported by a grant from the State Justice Institute 10 the National Center for State Courts. The views and opinions expressed do not necessarily reflect the views or policies of the grantor of grantee.
H. Ted Rubin has been a senior staff attorney for the National Center for State Courts in Denver. He directed the project, Tribal Courts and State Courts: The Prevention and Resolution of Jurisdictional Disputes, during its first four years and continues as a consultant to the project during its 1993 program year when it will execute a leadership conference to develop a national action agenda to prevent or resolve disputes and conflicts between tribal and state court systems.
The project has worked at reduction of civil disputes through survey research that ascertained the nature of civil problems, the implementation of tribal-state court forums in selected states, a national conference where teams from 22 states with Indian country designed action plans to reduce civil conflicts, and other education, legislation, court rules, and intersystem coordination approaches. This article summarizes the criminal survey, reviews tribal-state court forum accomplishments in Michigan and South Dakota, and reports on other project-related activities.
Federal statutes and court judgments have clarified certain boundary markers between tribal court and state court civil jurisdiction. In the criminal sphere, tribal court jurisdiction is constrained by federal law, and there is a strong federal prosecution role for crimes that occur in Indian country. State courts are also the centers for the prosecution
of certain crimes that occur in Indian country. State authorities may prosecute offenses committed by non-Indians, but have more general authority over crimes committed in Indian country in a limited number of states known as Public Law 280 states.
Endreson summarizes criminal jurisdiction in Indian country as: First, Indian tribes have jurisdiction over criminal offenses committed by Indians within Indian country, including offenses committed by an Indian against a non-Indian. Tribal jurisdiction is exclusive over crimes committed by one Indian against another, unless one of the "major crimes" is involved.
Second, the federal government has concurrent jurisdiction to prosecute crimes committed by an Indian against a non-Indian or vice versa. Indian tribes lack criminal jurisdiction over non-Indians. The federal government may also have exclusive jurisdiction over specific crimes created by federal statute, such as criminal prosecution under the Indian Gaming Regulatory Act. limited to crimes committed by one non-Indian against another. However, in Public Law 280 states, Congress has given the state jurisdiction over crimes committed by both Indians and non-Indians through special jurisdictional acts.
Third, state criminal jurisdiction in Indian country is generally Even when the criminal jurisdiction boundary is clear, it is not at all certain that either the federal or state authorities will assert jurisdiction over particular crimes. The Major Crimes Act, approved in 1885, provides for concurrent jurisdiction between federal and tribal courts for more serious felonies such as murder, manslaughter, kidnapping, incest, certain violent assaults, arson, burglary, robbery, and felonious theft committed by Indians.
Another Congressional act, the Indian Civil Rights Act, limits the sanctions that tribal courts can impose to a $5,000 fine and one-year imprisonment. Obviously, these limited sanctions are insufficient for certain felonies, and federal courts are the more appropriate forum. However, prosecutions for major crimes in the federal courts may not occur.
Crimes that occur in Indian country may not be a priority for the Federal Bureau of Investigation of the Office of the U.S. Attorney. Further, Indian country may be distant from the nearest U.S. attorney or, for that matter, from a state prosecutor. The consequence is that, reportedly, crimes committed on reservations may go unpunished or insufficiently punished. A tribal court may prosecute and hold an offender accountable, but only to the extent of the limited sanctions it holds authority to order. resources, and secure incarceration in Indian country is well known. Life in Indian country and in off-reservation communities may be imperiled when there is federal disinterest and, for example, a tribal court sentences a chronic Indian sexual offender to a brief jail stay without intervening rehabilitation. Endangerment occurs, also, when the state fails to prosecute the non-Indian, on-reservation sexual offender. The coordinating council that guides this project is particularly interested in encouraging meetings and informal and formal agreements between tribal, state, and federal officials to find common ground in investigations and prosecutions and to work out procedms so that no case falls through the cracks. Three governmental entities need to come together to solve this problem.
The Endreson survey directs attention to the legal factors used in determining jurisdiction in Indian country. First is the determination of who is an Indian. Second is the determination of what constitutes Indian country These determinations may be diffiCUlt. determines which sovereign may exercise criminal jurisdiction over the defendant. was an enrolled member of a recognized Indian tribe or nation, to determine whether one was an Indian. But this test, Endreson notes, was found problematic and underinclusive.
Some persons whom the law would ordinarily expect to be viewed as Indians for jurisdictional purposes were not enrolled for various reasons, such as the expression of zeligious or cultural convictions or as the result of flaws in the updating practices of some tribal rolls. Further, whether a non-Indian adopted by an Indian tribe, or whether one whose mother was an Indian but whose father was not (or whose father was a mixed blood) qualifies as an Indian for jurisdictional purposes, as well as other complex nonhypotheticals, has been the subject of court rulings. There is also certain authority that
b
The lack of adequate probation, rehabilitative intervention, community correctional In criminal cases, the Indian or non-Indian status of a defendant and victim often Endreson notes that courts formerly used the simple test, whether an individual holds that members of terminated tribes, tribes no longer federally recognized, are not Indians for purposes of federal jurisdiction even though "racially" they are Indians. Legal tests for who is an Indian now consider totality of the circumstances and include whether there is a preponderance of Indian blood, the habits of the person, and actual racial status as an Indian. Enrollment is no longer an absolute requirement
Defining Indian country is important since the state would have jurisdiction over nonfederal crimes occurring outside of Indian country irrespective of the Indian or non- Indian status of the parties, unless state prosecution would interfere with a treaty right, such as off-reservation hunting and fishing rights. Moreover, some federal jurisdictional statutes applied, by their terms, only to Indian country. The test, as one state supreme court held, is whether the land has been set apart for the use of Indians, not how the Indians acquired the land. Federal provisions define as Indian country reservations, Indian allotments, and land occupied by "dependent Indian communities" outside of reservations, regardless of whether these lands are tribally governed. The term dependent Indian community includes communities that axe "Indian" in character and federally dependent but are not part of an Indian allotment or a federal reservation. Determining whether a community is a dependent Indian community rests on such considerations as the nature of the area, the relationship of the Indian tribes and the federal government, and the established practices of federal and tribal government agencies toward the community.
This must be done on a case-by-case analysis. In some states, highway traffic administration poses significant issues of jurisdiction, as when state highways pass through Indian country. In Public Law 280 states, such as California, were granted civil adjudicatory and criminal jurisdiction over most of the reservations within their boundaries, although this did not affect Indian hunting and fishing rights. While these states have enlarged criminal jurisdiction, questions arise whether or not they can enforce state traffic regulations in Indian country when states treat certain violations, such as speeding, as civil matters. At least one such case has held that the state cannot enforce decriminalized traffic statutes. Instead, tribal governments have made a number of traffic violations civil infractions so that non-Indians as well as Indians may be brought before a tribal court.
In this scenario, as
well
as
in non-Public Law
280
states when tribal governments
enforce their own
traffk regulations on highways in Indian
country, an
offending driver's
point score has become an issue. One can accrue
a certain
number of points in
a
tribal
court and a certain number of points in
a
state court and still
be a
legal driver, whereas if
this offender had acquired all of his points in one court or the
other, his
or her license
would have been suspended. Wisconsin and North
Dakota
have
started
working out
arrangements that will authorize intergovernmental point
transfers so
that "justice can be
done."
Tribal Court Concerns R-dicaon The problems included:
. . .
The project surveyed a number of tribal court judges Serving subpoenas on witnesses located off-reservation
Obtaining prosecutions in state courts
Obtaining FBI investigations
Obtaining prosecutions in federal courts
Extraditing off-reservation Indians to tribal courts
Seeking extradition due to cost, complexity of the process, and
skepticism by
state law enforcement over whether the mbal court had authority
to obtain
extradition
Obtaining criminal or traffic records from state officials
promptly
Enforcing violations by non-Indians of domestic violence
protection orders
through contempt when the tribe lacks facilities the state chooses not to incarcerate them
Obtaining the testimony of a state chemist in drug cases
Obtaining payment by the Bureau of Indian Affairs to the local
governmental
entity for providing jail space to the Obtaining evidence from outside the reservation when the tribal
court exclusive jurisdiction over the crime and the accused
Tribal judges referred, also, to a more-thandesired turnover of
law enforcement
officers, adult offenders, to problems obtaining mental hospitalization of
reservation residents state form of mental health matment via a state criminal court, and to
insufficient resources for
drug Indian communities generally the state or federal government. But facilitating agreements to
provide state resources tribal courts or reservation residents is an attractive dhction
that administration of criminal law. Further, increased federal
assistance to help tribes develop
criminal justice intervention programs, in concert with
increased authority over offenses
that occur in Indian country, could help make tribes
self-sufficient. In effect, were more
resources made available tribes confiies.
misunderstandings between tribal and state officials: "Neither
jurisdiction believes the
other jurisdiction understands, or puts forth an effort to
respect or understand issues in the
respective jurisdictions." It has been a central strategy of
this project to bring together
tribal and problems and disputes that weaken the effectiveness of both
court systems, and design
strategies the chief justices of forums for chief justices of Michigan and South Dakota made similar
appointments and provided the
services needed to enable these tribal-state court forums intersystem disputes. Reports from these states follow.
One respondent judge set forth the existence of misconceptions
or
pan Tnbal-State This forum, appointed by Chief Justice Michael F. Cavanagh, met
four times. The
morning sessions of the second and third meetings, held in
Peshawbestown and Sault Ste.
Marie, were reserved for public comment. with tribal courts, such as tribal attorneys and social workers,
Michigan Department of
Social Services workers, state and local law enforcement
personnel, and state judges,
participated in these meetings. The seven tribal courts in
Michigan tribal constitutions or created through tribal ordinances. The
forum devised a three-part
strategy. First, resolution of many issues requires the
consistent application of full faith
and credit (in certain other states refemd to Second, the forum supported proposed legislative efforts in
child welfm and law
enforcement certification. Third, the forum recommended
approaches to institutionalized
relationships by putting systems in place to foster ongoing
education and cooperation. The forum drafted a supreme court rule that, if approved, would
require that state
courts grant the would full faith and credit to the records and judgments of the courts
of Michigan.
credit to the records and judgments of a Michigan court to the
same extent recognize and enforce the records and judgments of the tribal
court.
Similarly, the forum drafted a rule requiring tribal courts to
Assuming passage of these rules, the forum recommended a
particular mechanism
for the state court administrative office to catalog tribal
full-faith and credit rules and to
make this information available to state courts. - Preservation Act, comprehensive legislation to protect and
preserve Indian families, which
will courts.
b. The forum announced support for pending legislation that
would provide
for state certification of law enforcement officers Affairs, thus overcoming the present bar against applying this
training toward certification
as and police officers from local units of government, based on
written agreements, will aid
in the apprehension of criminals regardless of jurisdiction.
The forum entered a
. . -
Make state court resources available to tribal courts.
The forum supported tribal court interest in obtaining technical
assistant
with caseflow management, recordkeeping, and computerization
administrative office. Tribes should contract with this office
services now provided to state trial courts. Further, the forum
recommended the
continuing legal education programs and Michigan Judicial
Institute educational programs
be opened a
b. Cross-visitation.
Tribal court judges should state judges, and state court judges should judges' c. The forum report. Arrangements were made to include this directory
in the annual edition provide the Michigan Bar Association with annual updates of
tribal court information.
d. Materials at state law library.
The forum established the Michigan Law Library as a central
Epository for
tribal with a ready source of information on Indian law issues and the
laws of the individual
tribes. The forum consultant will initially collect these
materials. Thereafter, it will responsibility of the Michigan Tribal Judges Association and the
chief judge of each tribal
court e. The forum organization work needed to enroll enough attorneys to create
state bar. Tribal attorneys, legal services attorneys, U.S.
attorneys, Michigan attorneys
general, county prosecutors, state judges, and private attorneys
tribal courts or encounter Indian law issues. for this section at the state bar's memberships f. Inform attorneys through The forum chair and consultant Implementation through formation of ongoing committee.
In completing the design of its agenda Michigan Bar Journal to make members aware of the
forum's agenda.
g.
take ongoing responsibilities, the forum recognized that at
least another year's effort by the
forum or a related group is needed to carry out its numerous
recommendations. The
forum's ''final and most critical recommendation" was that "the
chief justice appoint an
advisory committee to carry on the work the forum had begun in
order to further
implementation and address ongoing issues as they arise and will
arise."2
South Dakota Triba1-W Court F o m
develop its action agenda plan. fiom the public and from professional communities. The forum
asked those who testified
at the open hearings to focus on the Indian Child Welfare Act
(ICWA) and tribal-state
comity, the two issues the forum considered most pertinent for
South hearings were held on Indian country reservations, and two were
held in urban located near Indian reservations: Eagle Butte on the Cheyenne
River Sinte Gleska University on the Rosebud Sioux Reservation, and
the cities of Aberdeen and
Rapid City. Affairs, and tribal social workers, lawyers, probation officers
in tribal and state courts, and
e
This forum, appointed by Chief Justice Robert 2Futher information Crandall, 49735. (517) 732-331 1.
tribal and state judges. Interested members of the public, both
Indian and non-Indian, also
testified.
1. To hearings or -- basis
Identify psychologists and psychiatrists who prcz Reform state regulations governing the licensing of Indian
foster Vigorously recruit more (state licensed) Indian foster care
families and
adoptive parents. The tribes and the state should participate in
jointly.
Several circuits in South Dakota have already established a
precedent for tribal and
state sharing of courthouses. In those areas, when impaneling a
jury or taking the
testimony of expert witnesses-as a matter of convenience and
cost savings--a state judge
will use a tribal court or a tribal court judge will use a state
court facility.
0 immediately send a letter to their facilities available for tribal court proceedings under
the ICWA.
To further appropriate use of ICWA, the forum made additional
nxommendations:
0 a new section on ICWA for the revised edition of the Court Handbook that the forum consultant will prepare.
Inclusion of an ICWA summary and checklist in the Benchbook
0 Directory
0 appendix That each definition of Indian child in the ICWA that states "or is
eligible for membership
in an Indian tribe" is sufficiently precise to meet both tribal
objectives and
federal concerns. If not, that appropriate action be taken at
federal level
0
0
0 (state, tribal, BIA), attorneys be held in Indian country, perhaps with joint
University of South
Dakota and tribally controlled college sponsorship.
2. While comity is not an issue because ICWA requires that federal
and state courts
give full faith and credit to the records and judgments of
tribal courts, recognition of
judgements is an issue with other case judgments. It is an issue not just between tribal and state
courts but between tribal and
tribal courts tribes in South Dakota, have comity statutes. These laws
parallel the state recognition-ofjudgment
statutes. Most tribal judges in the state proceed on a
case-by-case basis and
believe that tribal common law included suggestions of intertribal comity agreements, amending
=levant federal statutes,
such Prevention Act to apply to Indian tribes, and continuing to
proceed on a case-by-case
basis, the sole recommendation was:
Preparation of standardized forms for state judges to use in
applying the state's
statutory provision. (The forum considered this especially
important in the
case of 3. D t h e r r e c m .
The forum entered additional recommendations:
Given the prevalence of Indian law questions that of law in the state, request that the supreme court make Indian
law a
mandatory essay on the state bar examination
That there be regular meetings of tribal and state judges within
each circuit improve communication, to explore common problems, and scaxce That every effort be made codes, the trial and appellate court decisions of the state's nine
tribal c o w .
That the policy of inviting tribal cow judges, tribal probation
tribal court clerks to relevant state-sponsored training
sessions continue
That the Northern Plans Tribal Judges Association seek funding
training attend.
Its that mark tribal-state court concerns. Chief Justice Miller, in
1991, hosted a joint judicial
conference of state and tribal judges and, following that,
created a joint state-tribal judicial
liaison committee to explore tribal-state judicial issues.
Accordingly, the forum
recommended:
That the chief justice authorize the continued existence of the
joint judicial
liaison committee to pursue realization of recommendations
enumerated in the
report and South Chief Justice Miller, in accepting the report of the forum,
issued a formal
memorandum responding to each mcommendation. The chief justice
stated specifically
what he would do to seek implementation of each
recornmendati~n.~
pi Based on the now-proven value of mbal-state and published Resolve Jurisdictional Disputes and Improve Cooperation Between
Tribal and State
Courts. offcials in those states that have not yet initiated a forum.
The answer format, describes the purpose of a forum; the history of
forums and their
achievements; the selection of members by the chief justice;
consultant and staff roles; the
initial and subsequent meetings; public hearings; the value of a
second year to facilitate
implementation of the state action plan; and other information
derived from experience in
the five states that have sponsored forums. North Dakota was the
first jurisdiction to
actively use the 93 Plan for a Jxadmhip Conferem
The State Justice Institute has awarded the project a
continuation grant to conduct
a leadership conference is to develop a set of recommendations
regarding actions that
should the two corn systems. The scope of the recommendations will
include criminal civil proceedings. For the first time, the project will involved federal participation or intervention. The national
action agenda supported by a plan to implement conference recommendations. The
coordinating council
3Further information on the Schenk, Personnel and Training Officer, Supreme Court. (605) 773-4869.
will help design and develop this important agenda.
7