Keith Mack
The legal landscape of the United States is a complex tapestry of laws and jurisdictions, with Tribal members living on reservations subject to both federal and tribal laws. Native American tribes are considered sovereign nations and possess the authority to govern themselves and establish their own legal codes. Federally recognized tribes, of which there are 567, have the inherent right of self-government and jurisdiction over their members, including the authority to establish rules and regulations related to civil and criminal matters. Tribal courts can prosecute felonies, with sentencing limited to up to three years in prison and a $15,000 fine per count, and up to nine years per case. However, tribes must guarantee certain rights to defendants, including the right to a licensed defense counsel and a presiding judge with sufficient legal training. The Tribal Law and Order Act of 2010 enhances tribes' authority to prosecute and punish criminals, address violence against Native American women, and increase law enforcement presence on tribal lands.
| Characteristics | Values |
|---|---|
| Tribal law authority | Tribal law applies on reservations |
| Tribal court sentencing authority | 1 year in jail and a $5,000 fine; increased to 3 years and $15,000 per offence in 2010, with a combined maximum sentence of 9 years per criminal proceeding |
| Tribal court jurisdiction | Tribal courts do not have criminal jurisdiction over non-Indian offenders |
| Tribal sovereignty | The Tribal Law and Order Act emphasizes decreasing violence against American Indian and Alaska Native women |
| Tribal police authority | Tribal police officers can detain and search non-Indians suspected of state or federal crimes in Indian country |
| Number of federally recognized tribes | 567 |
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What You'll Learn
Tribal law and state law interaction
The legal landscape of the United States is a complex tapestry of laws and jurisdictions, with citizens subject to both state and federal laws. Tribal members living on reservations must adhere to federal laws, but the question of state laws is less clear-cut. Tribal members are both citizens of their respective tribes and the United States, and this dual citizenship carries a complex array of legal rights and responsibilities.
Native American tribes are considered sovereign nations, which means they have the authority to govern themselves and establish their laws and customs within the borders of their reservations. This status significantly defines how Tribal, state, and federal laws interact. Each tribe has jurisdiction over its members, with the authority to establish its rules and regulations, including those related to civil and criminal matters. In many cases, it is Tribal law, rather than state law, that applies on reservations. Tribal courts play a significant role in adjudicating disputes among Tribal members and between Tribal members and non-members.
However, the power of Tribal jurisdiction is not absolute, and a complex web of legal precedents and legislation determines the extent to which Tribal law and state law interact. In certain areas, federal law takes precedence over Tribal and state law. The Major Crimes Act and the Indian Country Crimes Act are two prominent and longstanding federal statutes that delineate the allocation of jurisdiction between Tribal, state, and federal governments.
The Tribal Law and Order Act (TLOA) of 2010 was enacted to address crime in tribal communities, with a strong emphasis on decreasing violence against American Indian and Alaska Native women. It enhances tribes' authority to prosecute and punish criminals, encourages the hiring of more law enforcement officers for Indian lands, and provides additional tools to address critical public safety needs. TLOA amends the Indian Civil Rights Act (ICRA), increasing tribal court authority by allowing prosecutions of felony cases involving sentencing limited to up to three years imprisonment and a $15,000 fine per offence. Before TLOA, tribal courts handled only misdemeanour cases.
In 2021, the Supreme Court affirmed the sovereign power of American Indian tribes, ruling that tribal police officers have the authority to temporarily detain and search non-Indians on public rights-of-way through American Indian lands. This ruling reinforces Congress' recent efforts in the TLOA and Violence Against Women Act (VAWA) to close legal loopholes that have allowed non-Indians to avoid accountability for crimes committed in Indian Country.
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Tribal police authority over non-Indians
Tribal police officers have the authority to temporarily detain and search non-Indians on public roads in Indian reservations. In June 2021, the U.S. Supreme Court unanimously affirmed the sovereign power of American Indian tribes, ruling that tribal police officers can exercise this authority over non-Indian suspects. This decision built on a previous Supreme Court ruling from 1981, which stated that a "tribe may...retain...power...over the conduct of non-Indians...within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or health or welfare of the tribe."
The Supreme Court's 2021 ruling clarified that tribal police can search non-Indian suspects and detain them until they can be handed off to federal or state authorities. This power extends to non-Indian suspects traveling on public rights-of-way through American Indian lands, even if they are not tribal members. The ruling also specified that tribal officers need not first determine whether a suspect is non-Indian, and that they may detain a non-Indian offender until non-tribal officers arrive to address any violations.
Tribal governments are considered local governments in Indian country and have the power to prosecute tribal citizens on tribal lands. However, the situation is different for non-Indians, as the Supreme Court ruled in 1978 that tribal governments could not prosecute non-Indians for any crimes committed in Indian country. Nonetheless, the recent Supreme Court ruling affirms the authority of tribal police to protect public safety and ensure accountability for crimes committed by non-Indians in Indian country.
The Bureau of Indian Affairs Police (BIA), also known as BIA Police, is the law enforcement arm of the United States Bureau of Indian Affairs. The BIA has nationwide jurisdiction over crimes committed within or involving Indian Country and provides police, investigative, corrections, technical assistance, and court services to over 567 registered Indian tribes and reservations. BIA Police officers may enforce tribal law if deputized by the tribe or provided for by tribal ordinance or statute, and they may also be granted authority to enforce state laws by state statute. In addition to the BIA, the Village Public Safety Officer (VPSO) program provides services to Alaska Native villages under the jurisdiction of the Alaska State Police.
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Tribal court sentencing authority
Tribal courts can prosecute felonies, but there are some restrictions. The Tribal Law and Order Act of 2010 (TLOA) recognises that instances of crime have increased on Indian reservations and aims to address crime in tribal communities. It also places emphasis on decreasing violence against Native American and Alaska Native women.
The TLOA enhances tribes' authority to prosecute and punish criminals and increases the maximum sentence that can be imposed by tribal courts. The Act allows for sentencing of up to 3 years and a $15,000 fine per offence, for a combined maximum sentence of 9 years per criminal proceeding. However, tribes choosing to use this felony sentencing authority must guarantee certain rights to defendants, including the right to a law-trained, licensed defence counsel.
The TLOA also encourages the hiring of more law enforcement officers for Indian lands and provides additional tools to address critical public safety needs. It provides guidelines for handling sexual assault and domestic violence crimes, including training for law enforcement and court officers, and boosting conviction rates through better evidence collection.
There are approximately 400 Tribal justice systems throughout the US, and 567 federally recognised tribes. Federally recognised tribes possess certain inherent rights of self-government, and many have enacted their own legal codes. Tribal sovereignty is protected throughout the Tribal justice system, and the Court of Indian Offences (CFR Courts) provides a justice service for tribes without their own Tribal justice system.
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Tribal sovereignty
Native American tribes are considered sovereign nations, which means they have the authority to govern themselves and establish their own laws and customs within the borders of their reservations. This status as a sovereign nation significantly defines how Tribal, state, and federal laws interact. Federally recognised tribes, of which there are 567, possess certain inherent rights of self-government and many have enacted their own legal codes.
In 2010, the Tribal Law and Order Act was passed to help address crime in tribal communities and decrease violence against Native American women. The Act enhances tribes' authority to prosecute and punish criminals, including the prosecution of felony cases involving sentencing limited to up to three years imprisonment and a $15,000 cap on fines. The Act also encourages the hiring of more law enforcement officers for Indian lands and provides additional tools to address critical public safety needs, such as greater access to criminal information-sharing databases.
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Tribal jurisdiction
The Tribal Law and Order Act of 2010 (TLOA) enhances tribes' authority to prosecute and punish criminals. It allows tribes to prosecute less serious felonies, with sentencing limited to up to three years imprisonment and a $15,000 fine per offence. This means that, in total, a defendant can face up to nine years per criminal proceeding.
However, tribes choosing to use this felony sentencing authority must guarantee certain rights, including the right to law-trained, licensed defence counsel for indigent defendants. The tribe must also make available published tribal criminal statutes and rules of criminal procedure and evidence, along with a record of tribal criminal and court proceedings.
Tribes retain jurisdiction to prosecute Indians for the same conduct that constitutes a Section 1153 felony. In Section 1153 cases, the victim may be Indian or non-Indian. An Indian defendant may be prosecuted concurrently in two jurisdictions for the same offence. The Constitutional prohibition against double jeopardy does not apply because the United States and Indian tribes are separate sovereigns.
Native American tribes are considered sovereign nations, which means they have the authority to govern themselves and establish their laws and customs within the borders of their reservations. This status as a sovereign nation significantly defines how Tribal, state, and federal laws interact. In general, each Tribe has jurisdiction over its members, with the authority to establish its rules and regulations, including those related to civil and criminal matters. This means that, in many cases, it is Tribal law, rather than state law, that applies on reservations.
However, the power of Tribal jurisdiction is not absolute. Federal jurisdiction applies to major crimes committed by or against Native Americans on reservations, actions involving interstate commerce, and any legal issue in which the United States is involved as a party. Federal law also applies to issues such as voting rights, social security, and military service.
The Tribal Law and Order Act also encourages the hiring of more law enforcement officers for Indian lands and provides additional tools to address critical public safety needs. It provides BIA and Tribal police officers with greater access to criminal information-sharing databases and authorises new guidelines for handling sexual assault and domestic violence crimes.
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Frequently asked questions
Yes, tribal law can charge someone with a felony. The Tribal Law and Order Act of 2010 allows tribes to prosecute and punish criminals, enhancing their authority. However, the maximum sentence is currently limited to three years per count and nine years per case, with a $15,000 cap on fines.
Tribal members living on reservations must adhere to federal laws, but the question of state laws is less clear-cut. Tribal members are citizens of their respective tribes and the United States, resulting in a complex array of legal rights and responsibilities. Tribal sovereignty allows tribes to govern themselves and establish their own laws and customs within their reservations.
Yes, the Supreme Court affirmed in 2021 that tribal police officers have the authority to temporarily detain and search non-tribal members on public rights-of-way through American Indian lands. Tribal police can also enforce laws on non-tribal members suspected of state or federal crimes in Indian Country.
Tribal courts do not have criminal jurisdiction over non-tribal members who commit crimes on reservations. However, the Violence Against Women Act of 2013 recognized tribes' power to exercise "special domestic violence criminal jurisdiction" (SDVCJ) over non-Indian offenders.
