Excerpt from Mastering American Indian Law: Chapter 3 - Criminal Jurisdiction in Indian Country

24 Pages Posted: 20 Jul 2013 Last revised: 16 Nov 2013

Angelique EagleWoman

Mitchell Hamline School of Law

Stacy L. Leeds

University of Arkansas - School of Law

Date Written: July 19, 2013


This chapter is the most up-to-date comprehensive source on Criminal Jurisdiction in Indian Country and includes discussion of the Tribal Law and Order Act implementation and the 2013 provisions of the Violence Against Women Act.

Chapter 3 - Criminal Jurisdiction in Indian Country:

Inherent tribal jurisdiction and sovereignty is the starting point in any analysis of jurisdiction in Indian country. The initial presumption is that a Tribe retains full jurisdiction within the tribal territory. The next step is to then determine whether any limitations have been placed upon the inherent tribal jurisdiction. In the criminal jurisdiction context, the inherent basis of tribal jurisdiction will be discussed, followed by an examination of the subsequent limitations imposed through federal statutes and judicial decisions. The two key factors of greatest significance in the analysis of criminal jurisdiction in Indian Country under Indian law are: 1) race of the alleged perpetrator and victim; and 2) ownership and status of the land where alleged criminal activity occurred. Due to the necessary analysis of these factors and other considerations in this area, criminal jurisdiction in Indian Country has been called one of the most complex areas of law. This chapter will discuss the contours of tribal criminal jurisdiction, federal criminal jurisdiction, and state criminal jurisdiction in Indian Country.

A. Tribal Criminal Jurisdiction: Tribal societies placed a high value on law and order in historical tribal communities. Often a particular clan or social group had primary responsibility for law enforcement duties in the tribal structure. Those who violated tribal laws would be dealt consequences in line with the tribal philosophy of bringing the community back into balance. These concepts of community balance between the perpetrator and society have been adapted by the restorative justice movement in the United States. Historically, tribal punishments for wrong-doers could range from public shaming, whereby the misdeeds of the community member were announced at a community gathering to expulsion from the tribal community. Some Tribes used a permanent facial scar to mark the expelled perpetrator as unworthy of being part of a human society. In contrast and in keeping with the diversity of laws and cultural norms between various Tribes, other Tribes were known to have retributive laws that resulted in execution or severe flogging for certain offenses.

Within communities where communal balance was central, lawbreakers often faced the law enforcement clan and were informed of the actions they would be required to complete to restore the tribal communal balance. Remedial actions could include providing goods and services to a family injured by the lawbreaker’s misdeeds and/or periods of solitary reflection and spiritual instruction for the lawbreaker. Behaviors detrimental to others in the community were swiftly and effectively dealt with in historical tribal communities to maintain social values and prevent further infractions stemming from the original misdeed. For repeat offenders, the consequences were steep. Banishment from the tribal community, family and friends was viewed as one of the most severe punishments handed down to an offender. The tribal way of life ensured a sense of belonging, protection, and social goodwill, without which the human existence would be desolate and solitary. Another extreme punishment employed by some tribal communities for a recurring offender would be death.

1. Contemporary Tribal Justice Systems, Tribal Constitutional Rights,and Criminal Sentencing: In contemporary times, there are approximately 200 federally-recognized tribal justice systems currently in operation in the United States. Tribal justice systems may have all or some of the following components: tribal court system, tribal public defender services, tribal probation office, tribal law enforcement department, and tribal detention center. Tribal governments are in the first instance responsible for funding tribal justice systems. The Bureau of Indian Affairs has oversight for federal funding of tribal justice systems. Within the U.S. Department of Justice, federal funding opportunities are offered through the Office of Tribal Justice for high priority tribal safety needs on a grant basis for establishing or upgrading tribal justice systems.

The Indian Self-Determination and Education Assistance Act of 1975, Public Law 93-638, provided a process whereby tribal governments may enter into a contract with the BIA for services provided in tribal communities. Most of the law enforcement departments operated by Tribes are administered under this type of contract from the BIA for federal funding. Components not maintained by a Tribe are the responsibility of the BIA for law and order in Indian Country. The BIA provides training for both BIA and tribal police officers at the Indian Police Academy in Artesia, New Mexico. One of the common constraints of tribal law enforcement is the underfunding of these departments to the detriment of tribal communities. The National Congress of American Indians (NCAI) has estimated that the number of active duty BIA and tribal law enforcement officers is currently at half the amount needed to adequately meet public safety needs in Indian Country. In the regular course of work for tribal law enforcement, alleged perpetrators in Indian Country are arrested and subject to prosecution as defendants in tribal courts.

Defendants within the criminal jurisdiction of a Tribe may rely on tribal laws, and where applicable the tribal constitution, to uphold their rights to due process under such laws. The Indian Civil Rights Act passed in 1968 provided guidelines to tribal justice systems on adopting a modified version of the U.S. Bill of Rights, 25 U.S.C. § 1302(a). An early U.S. Supreme Court decision, Talton v. Mayes, 163 U.S. 376 (1896), had previously held that the U.S. Bill of Rights was not applicable to tribal governments as separate sovereigns. In the Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), case, the U.S. Supreme Court interpreted the Indian Civil Rights Act as providing only habeas corpus relief for those challenging detainment by a tribal jurisdiction and not providing any further cause of action in federal court against a tribal government. 436 U.S. at 69. Therefore, those alleging wrongful detention by a tribal justice system may seek relief under the ICRA, 25 U.S.C. § 1303, and file a habeas corpus petition in federal court seeking release. Other due process rights asserted in a tribal court proceeding must be based upon tribal laws or provisions in the tribal constitution and remedied within the tribal court system, not the federal courts. The importance of adopting some key constitutional rights outlined in the ICRA is reflected in the increased sentencing ability of tribal courts when providing procedural safeguards outlined in the 2010 Tribal Law and Order Act.

Tribal courts exercising criminal jurisdiction employ, either through a permanent position or through a contract for services, a tribal prosecutor. Increasingly, tribal court systems include a tribally-funded public defender position as well for those criminally charged in the court system. Recent developments in federal Indian law under the Tribal Law and Order Act (TLOA) of 2010 provide an incentive for offering public defender services by permitting those court systems greater sentencing capabilities than those that do not offer such services. Under the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301 et seq., tribal courts may sentence an Indian offender up to one year of incarceration and/or a fine of $5,000 for any one offense, 25 U.S.C. § 1302(a)(7)(B). Tribal courts meeting the additional due process safeguards requirements enacted through the TLOA may sentence an Indian offender up to three years of incarceration and/or a fine of up to $15,000 for an offense under tribal law, 25 U.S.C. § 1302(a)(7)(C).

For the greater sentencing authority, the tribal judge may impose the increased sentence where the defendant has a prior conviction in any U.S. jurisdiction for the same or a similar offense or where the defendant is charged with an offense that would be subject to more than one year incarceration in a federal or state criminal proceeding, 25 U.S.C. § 1302(b)(1), (2). When sentencing beyond the basic one year incarceration and/or $5,000 fine, there are five basic rights that must be provided to the defendant. 25 U.S.C. § 1302(c) provides the following requirements for tribal judges to exercise the three year and/or $15,000 fine per offense greater sentencing authority.

(c) Rights of defendants - In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall: (1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and (2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys; (3) require that the judge presiding over the criminal proceeding-- (A) has sufficient legal training to preside over criminal proceedings; and (B) is licensed to practice law by any jurisdiction in the United States; (4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and (5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

When a tribal court meets all of these requirements, then the imposition of greater sentences will allow the court to better match punishment with the severity of an offense committed by a defendant subject to tribal prosecution. There are added financial costs for a tribal judicial system to meet the increased procedural safeguards.

Federal criminal courts in Indian Country also exist for those Tribes without an established court system. These federal courts, Courts of Indian Offenses, are commonly referred to as “CFR courts” because the operative criminal law is contained in the Code of Federal Regulations for Indian Country crimes. 25 CFR 11.100 provides a listing of the Tribes served by such courts at present. A majority of the CFR courts remain in what was formerly known as “Indian Territory,” within the current state of Oklahoma and are serving Tribal Nations in that region. Information is available online about specific tribal courts through the Tribal Court Clearinghouse website.

Excerpt of Chapter 3 Criminal Jurisdiction in Indian Country - Mastering American Indian Law - by Angelique Townsend EagleWoman and Stacy L. Leeds:

Mastering American Indian Law is a text designed to provide readers with an overview of the field. By framing the important eras of U.S. Indian policy in the Introductory Chapter, the text flows through historical up to contemporary developments in American Indian Law. This book will serve as a useful supplement to classroom instruction covering tribal law, federal Indian law and tribal-state relations. In ten chapters, the book has full discussions of a wide range of topics, such as: Chapter 2 – American Indian Property Law; Chapter 3 – Criminal Jurisdiction in Indian Country; Chapter 4 – Tribal Government, Civil Jurisdiction and Regulation; Chapter 8 – Tribal-State Relations; and Chapter 9 – Sacred Sites and Cultural Property Protection. Throughout the text, explanations of the relevant interaction between tribal governments, the federal government and state governments are included in the various subject areas. In Chapter 10 – International Indigenous Issues and Tribal Nations, the significant evolution of collective rights in international documents is focused upon as these documents may be relevant for tribal governments in relations with the United States. For Indian law courses, law school seminars on topics in American Indian Law, undergraduate and graduate level American Indian Studies classes, and those interested in the field, this book will provide an easy-to-read text meant to guide the reader through the historical to the contemporary on the major aspects of American Indian law and policy.

Keywords: Tribal-US Relations, Tribal Government, Indian Law, Indian and Indigenous Peoples Law, Mastering Series

Suggested Citation

EagleWoman, Angelique and Leeds, Stacy L., Excerpt from Mastering American Indian Law: Chapter 3 - Criminal Jurisdiction in Indian Country (July 19, 2013). PERC Research Paper No. 13-7; University of Arkansas Research Paper No. 13-16. Available at SSRN: https://ssrn.com/abstract=2296138 or http://dx.doi.org/10.2139/ssrn.2296138

Angelique EagleWoman (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

Stacy L. Leeds

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

Register to save articles to
your library


Paper statistics

Abstract Views