⚖️Native American Law Unit 5 – Jurisdiction in Indian Country: Legal Authority

Historical Context

• Native American tribes were sovereign nations prior to European colonization, with their own systems of governance, laws, and customs
• European colonizers and later the U.S. government made treaties with Native American tribes, recognizing them as distinct political entities
• The U.S. Constitution grants Congress the authority to regulate commerce with Native American tribes (Article I, Section 8, Clause 3)
• The Marshall Trilogy, a series of Supreme Court decisions in the early 19th century (Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia), established the legal framework for federal-tribal relations
  • These decisions defined Native American tribes as "domestic dependent nations" under the protection and jurisdiction of the federal government
• The federal government's policies towards Native American tribes have shifted over time, from treaties and removal to assimilation and termination, and more recently, self-determination

Defining Indian Country

• Indian Country is a legal term that refers to the geographic areas where tribal and federal jurisdiction apply
• The definition of Indian Country is found in 18 U.S.C. § 1151 and includes:
  • All land within the limits of any Indian reservation
  • All dependent Indian communities
  • All Indian allotments, the Indian titles to which have not been extinguished
• Indian reservations are areas of land reserved for a tribe or tribes under treaty or other agreement with the U.S., executive order, or federal statute or administrative action
• Dependent Indian communities are lands set aside by the federal government for the use of Indians and under federal superintendence, even if not formally designated as a reservation
• Indian allotments are parcels of land allocated to individual Native Americans under the General Allotment Act of 1887 (Dawes Act) and remain Indian Country even if the allottee no longer owns the land

Federal Authority in Indian Country

• The federal government has plenary power over Indian affairs, derived from the U.S. Constitution's Commerce Clause, Treaty Clause, and Supremacy Clause
• Congress has the authority to enact legislation that governs Indian Country, such as the Major Crimes Act, Indian Civil Rights Act, and Indian Child Welfare Act
• Federal criminal jurisdiction in Indian Country is established by the General Crimes Act (18 U.S.C. § 1152) and the Major Crimes Act (18 U.S.C. § 1153)
  • The General Crimes Act extends federal criminal laws to Indian Country, except for crimes committed by one Native American against another or where the tribe has already punished the offender
  • The Major Crimes Act grants the federal government jurisdiction over certain serious crimes (murder, manslaughter, kidnapping, etc.) committed by Native Americans in Indian Country
• The federal government has a trust responsibility to protect tribal lands, resources, and interests, which includes providing services such as healthcare, education, and public safety

Tribal Sovereignty and Jurisdiction

• Native American tribes possess inherent sovereignty, which means they have the authority to govern themselves and their members within Indian Country
• Tribal sovereignty is not granted by the federal government but is an inherent right that predates European colonization
• Tribes have the power to establish their own governments, enact laws, and maintain order within their territories
• Tribal courts have jurisdiction over civil and criminal matters involving Native Americans on tribal lands
  • Tribes can prosecute Native American offenders for crimes committed within their jurisdiction
  • Tribal courts generally do not have criminal jurisdiction over non-Native Americans who commit crimes on tribal lands (Oliphant v. Suquamish Indian Tribe)
• Tribes also have the authority to regulate activities within their territories, such as zoning, environmental protection, and economic development
• Tribal sovereign immunity protects tribes from lawsuits in federal and state courts without their consent or congressional abrogation

State Jurisdiction Limitations

• Generally, states have limited jurisdiction over Native American tribes and their members within Indian Country
• The U.S. Supreme Court has held that states cannot infringe upon tribal sovereignty or self-governance without express congressional authorization (Williams v. Lee)
• States cannot tax Native Americans living on reservations or tax tribal lands and resources within Indian Country
• In criminal matters, states generally do not have jurisdiction over crimes committed by Native Americans against other Native Americans in Indian Country
• However, states may have jurisdiction over crimes committed by non-Native Americans against other non-Native Americans in Indian Country
• States can assume jurisdiction over Indian Country with tribal consent and congressional approval through a process known as retrocession

Public Law 280 and Its Impact

• Public Law 280 (PL 280) was enacted by Congress in 1953 and significantly altered the jurisdictional landscape in Indian Country
• PL 280 granted certain states (initially California, Minnesota, Nebraska, Oregon, and Wisconsin) criminal and civil jurisdiction over Indian Country within their borders
  • Alaska was added to the list of mandatory PL 280 states upon statehood in 1959
• Other states were given the option to assume jurisdiction over Indian Country without tribal consent
• PL 280 did not abolish tribal jurisdiction but rather created concurrent state and tribal jurisdiction in affected areas
• The law has been criticized for undermining tribal sovereignty, creating jurisdictional confusion, and leading to inadequate law enforcement in Indian Country
• Some states have retroceded (returned) jurisdiction back to the federal government and tribes under subsequent amendments to PL 280

Modern Jurisdictional Challenges

• The complex patchwork of federal, tribal, and state jurisdiction in Indian Country has led to ongoing challenges and disputes
• Jurisdictional gaps and overlaps can create confusion and hinder effective law enforcement and the administration of justice
• The lack of tribal criminal jurisdiction over non-Native offenders has been a significant issue, particularly in cases of domestic violence and sexual assault
  • The Violence Against Women Reauthorization Act of 2013 (VAWA 2013) partially addressed this issue by granting tribes special domestic violence criminal jurisdiction over non-Native offenders in certain circumstances
• Tribes have been working to enhance their legal systems and assert their sovereignty through various means, such as developing tribal courts, codes, and law enforcement agencies
• Collaborative agreements between tribes, states, and the federal government have been used to address jurisdictional challenges and improve public safety in Indian Country
• The U.S. Supreme Court continues to shape the contours of jurisdiction in Indian Country through its decisions on issues such as tribal civil regulatory authority and the scope of tribal sovereign immunity

Case Studies and Landmark Decisions

• Ex parte Crow Dog (1883): The U.S. Supreme Court held that the federal government did not have jurisdiction over a crime committed by one Native American against another in Indian Country, leading to the passage of the Major Crimes Act
• United States v. Kagama (1886): The Court upheld the constitutionality of the Major Crimes Act, affirming Congress's plenary power over Indian affairs
• Williams v. Lee (1959): The Court ruled that state courts do not have jurisdiction over civil suits against Native Americans arising from transactions on tribal lands, protecting tribal sovereignty and self-governance
• Oliphant v. Suquamish Indian Tribe (1978): The Court held that tribal courts do not have inherent criminal jurisdiction over non-Native Americans, creating a jurisdictional gap in Indian Country
• Montana v. United States (1981): The Court established the "Montana test," limiting tribal civil regulatory authority over non-members on non-Indian fee lands within reservations unless certain exceptions apply
• California v. Cabazon Band of Mission Indians (1987): The Court held that states cannot regulate tribal gaming on Indian lands without express congressional authorization, paving the way for the Indian Gaming Regulatory Act of 1988
• McGirt v. Oklahoma (2020): The Court affirmed that the Muscogee (Creek) Nation's reservation in eastern Oklahoma was never disestablished, significantly altering criminal jurisdiction in the state and reaffirming the importance of historical treaty rights