Tribal Criminal Jurisdiction Beyond Citizenship and Blood
American Indian Law Review Vol. 39, 337, 2016
115 Pages Posted: 15 May 2016
Date Written: 2015
Unlike most sovereigns, American Indian tribes cannot exercise full territorial criminal jurisdiction. Tribes generally lack jurisdiction over non-Indians, while they retain jurisdiction over “all Indians,” including their own citizens as well as “nonmember Indians,” but neither Congress nor the federal courts have carefully considered who is included in the latter category. Most recently, Congress restored tribal jurisdiction over some non-Indian domestic abusers, as long as the non-Indian has sufficient “ties to the Indian tribe.” These rules do not issue from a single source, but from multiple federal statutes and Supreme Court decisions. They are not linked to a unifying principle that explains why tribes lack criminal jurisdiction in certain situations, which could guide tribes in determining the scope of their jurisdiction in future cases.
In order to divine a unifying principle, this article explores the interests served by criminal jurisdiction, the scope of that jurisdiction in other contexts, and the particular concerns expressed by federal actors about Indian tribal power. It argues that the current federal rules seek to make tribal jurisdiction broad enough to provide for public safety, express cultural norms, and make individuals accountable to society, but narrow enough to prevent relative strangers from being prosecuted by tribes’ potentially different and unfamiliar legal systems.
Drawing on some tribes’ approach to defining the scope of their own criminal power in light of the limits imposed by the federal government, the article proposes a new standard to clarify who should (and should not) be subject to a tribe’s criminal jurisdiction: tribal criminal jurisdiction should extend, at minimum, to anyone who is recognized by the tribe as a member of the community. Community recognition is a flexible standard that can accommodate the many different ways an individual may be connected to a community. It empowers the tribal community to define who is included and considers an individual’s responsibility to the community, rather than focusing narrowly on consent and voluntary affiliation. It demonstrates that formal citizenship is not the only way to measure the connection between an individual and a tribal community, and is therefore not the only way to ensure that Indian remains a political (as opposed to simply racial) designation.
Keywords: criminal jurisdiction, territorial jurisdiction, tribal jurisdiction, sovereignty, community recognition, equal protection, Indian Law
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