5.2 Criminal Jurisdiction in Indian Country

Criminal jurisdiction in Indian Country is a complex web of federal, state, and tribal authority. It's shaped by historical treaties, federal laws, and Supreme Court decisions that have both recognized and limited tribal sovereignty.

Understanding this jurisdictional maze is crucial for effective law enforcement and justice in Indian Country. Key factors include the identity of the offender and victim, the location of the crime, and specific federal laws that grant or limit jurisdiction.

Federal Jurisdiction in Indian Country

Major Crimes Act and General Crimes Act

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• Major Crimes Act grants federal jurisdiction over certain serious crimes committed by Indians in Indian Country, regardless of the victim's identity (murder, manslaughter, kidnapping, etc.)
• General Crimes Act, also known as the Indian Country Crimes Act, extends federal criminal laws to Indian Country, except for crimes committed by one Indian against another, crimes punished by tribal law, or where a treaty gives exclusive jurisdiction to the tribe
• Both acts aim to address criminal activity in Indian Country and ensure that serious crimes are prosecuted by federal authorities

Public Law 280 and Tribal Law and Order Act

• Public Law 280 transferred criminal jurisdiction from the federal government to certain states for offenses committed by or against Native Americans in Indian Country
  • Applies to six mandatory states (California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska) and several optional states
• Tribal Law and Order Act of 2010 aimed to improve public safety in Indian Country by increasing tribal court authority, enhancing cooperation between tribal and federal law enforcement, and providing resources for tribal justice systems
  • Allows tribes to impose longer sentences (up to 3 years per offense) and increases the maximum fine to $15,000

United States v. Lara and Tribal Sovereignty

• United States v. Lara (2004) held that tribes have inherent sovereign power to prosecute non-member Indians for crimes committed on their reservations
  • Affirmed that Congress has the authority to recognize and affirm the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians, including non-members
• This case recognized the inherent sovereignty of tribes and their authority to maintain order and justice within their territories, subject to congressional oversight

Tribal Jurisdiction

Indian Country and Tribal Jurisdiction

• Indian Country refers to all land within a reservation, dependent Indian communities, and Indian allotments
  • Determines the extent of tribal and federal jurisdiction
• Tribes have inherent sovereignty to exercise jurisdiction over their members and territory, but this power is subject to limitations imposed by federal law and Supreme Court decisions
  • Tribes generally have exclusive jurisdiction over crimes committed by Indians against Indians in Indian Country, unless a specific federal law provides otherwise

Oliphant v. Suquamish Indian Tribe and Limitations on Tribal Jurisdiction

• Oliphant v. Suquamish Indian Tribe (1978) held that tribes do not have inherent criminal jurisdiction over non-Indians who commit crimes on their reservations
  • This decision limited tribal sovereignty and created a jurisdictional gap in Indian Country
• As a result, tribes must rely on federal or state authorities to prosecute non-Indian offenders, which can lead to inadequate law enforcement and public safety concerns

Violence Against Women Reauthorization Act (VAWA) and Double Jeopardy

• VAWA of 2013 partially restored tribal jurisdiction over non-Indians for certain domestic violence crimes committed against Native American victims in Indian Country
  • Allows participating tribes to prosecute non-Indians for domestic violence, dating violence, and violation of protection orders
• Double jeopardy, the constitutional protection against being prosecuted twice for the same offense, does not apply when a defendant faces prosecution by both tribal and federal courts
  • The dual sovereignty doctrine allows both the tribe and the federal government to prosecute an individual for the same crime without violating double jeopardy

Jurisdiction Types

Federal and State Jurisdiction in Indian Country

• Federal jurisdiction in Indian Country is based on the Major Crimes Act, General Crimes Act, and other specific federal laws
  • Applies to crimes committed by or against Native Americans, as well as crimes that fall under federal jurisdiction regardless of the offender or victim's identity
• State jurisdiction in Indian Country is generally limited, but can be granted through specific federal legislation like Public Law 280
  • States have jurisdiction over crimes committed by non-Indians against non-Indians in Indian Country

Concurrent and Exclusive Jurisdiction

• Concurrent jurisdiction occurs when more than one government (federal, state, or tribal) has the authority to prosecute a crime
  • For example, both the federal government and the tribe may have jurisdiction over a crime committed by an Indian against a non-Indian in Indian Country
• Exclusive jurisdiction means that only one government has the authority to prosecute a crime
  • Tribes generally have exclusive jurisdiction over crimes committed by Indians against Indians in Indian Country, unless a federal law provides otherwise
• The complex interplay between federal, state, and tribal jurisdiction in Indian Country can lead to confusion and gaps in law enforcement, making it crucial to understand the applicable laws and sovereignty issues involved