American Laws On Reservations: An Indian Jurisdiction

Indian reservations are areas of land held and governed by federally recognized Native American tribes. While Native Americans are U.S. citizens and subject to federal, state, and local laws, only federal and tribal laws apply on reservations. This is because reservations are considered sovereign nations with a unique legal relationship with the U.S. federal government. This means that state laws do not apply to Native Americans on their reservations, and tribes have immunity from federal civil cases. However, tribal lands are still subject to federal laws and regulations passed by Congress.

Tribal sovereignty

The US federal government recognised American Indian tribes as independent nations and entered into policy agreements with them via treaties. However, after the Civil War, the US changed its approach, and in the Indian Appropriations Act of 1871, Congress prohibited any future treaties.

The US currently recognises 574 tribal nations, 229 of which are in Alaska. Native peoples and governments have inherent rights and a political relationship with the US government that does not derive from race or ethnicity. Tribal members are citizens of three sovereigns: their tribe, the US, and the state in which they reside.

Tribal governments are responsible for a broad range of governmental activities on tribal lands, including education, law enforcement, judicial systems, healthcare, environmental protection, natural resource management, and the development and maintenance of basic infrastructure such as housing, roads, bridges, sewers, telecommunications, and electrical services.

While tribal criminal jurisdiction over Native Americans is well-settled, tribes are still striving to achieve criminal jurisdiction over non-Native persons who commit crimes in Indian Country. This is due to the Supreme Court's ruling in 1978 in Oliphant v Suquamish Indian Tribe, which stated that tribes lack the inherent authority to arrest, try, and convict non-Natives who commit crimes on their lands.

In recent years, there have been developments in the relationship between tribal governments and the federal government, with the latter increasingly recognising tribal sovereignty and stressing government-to-government relations. The Violence Against Women Reauthorization Act of 2013 expanded the criminal jurisdiction of tribes over non-Indian perpetrators of domestic violence occurring in Indian Country when the victim is Native American. Additionally, the 2022 reauthorisation of the Violence Against Women Act expanded the recognition of tribes' inherent jurisdiction to prosecute non-Indians for additional crimes committed in Indian Country.

Federal law vs. tribal law

Overview

American Indians and Alaska Natives are generally subject to federal, state, and local laws as citizens of the United States. However, on federal Indian reservations, only federal and tribal laws apply to tribal members unless Congress specifies otherwise. This unique legal situation has resulted in a complex interplay between federal and tribal law, with tribal law being notably distinct from federal Indian law.

Federal Indian Law

Federal Indian law governs the relationship between federal, state, and tribal governments. It establishes the framework for how these different levels of government interact and outlines their respective authorities. For example, the Assimilative Crimes Act, a federal law, makes any violation of state criminal law a federal offense on reservations.

Tribal Law

Tribal law, on the other hand, is the law that tribes develop and apply specifically to their members and territories. Each tribal government operates according to its own constitutional rules, often modelled on form constitutions provided by the United States Department of the Interior. Tribal law enforcement officers, who are either tribal employees or federal employees trained by the Bureau of Indian Affairs, are typically the first responders to any crimes committed on tribal lands.

Jurisdiction

The jurisdiction of federal and tribal law can vary depending on the state, tribe, the nature of the crime, and the perpetrator's tribal status. For example, the FBI typically investigates and prosecutes federal crimes such as murder and rape on reservations, while misdemeanours like domestic violence may be handled by tribal law enforcement, state police, or the FBI if committed by a non-tribal member.

Challenges and Initiatives

The interplay between federal and tribal law has created challenges due to unclear authority, underfunding, and communication issues between tribal, state, and federal authorities. These challenges have resulted in a "maze of injustice," with high rates of violent crime, substance abuse, and health issues in tribal communities. Initiatives such as the Tribal Law and Order Act of 2010 aim to strengthen tribal law enforcement, improve crime prevention, and enhance behavioural health programs to address these issues.

State law vs. tribal law

Indian reservations are considered federal land, and as such, federal and tribal laws are the primary legal authorities. However, the interplay between state law and tribal law is complex and has evolved over time.

Tribal Sovereignty and Self-Governance

Tribal sovereignty is the concept of the inherent authority of Indigenous tribes to govern themselves within the United States. The U.S. federal government historically recognized American Indian tribes as independent nations and entered into treaties with them. The Constitution mentions Native American tribes three times, acknowledging their distinct status and recognizing Congress's power to regulate commerce with them.

The Indian Appropriations Act of 1871 marked a shift in policy, prohibiting further treaty-making with tribes and instead subjecting them to federal statutes. Despite this, tribal sovereignty has been affirmed in various Supreme Court decisions, recognizing tribes' authority to govern themselves and their lands.

State Law and Tribal Law: Jurisdiction and Enforcement

Generally, state laws do not apply to Native Americans in Indian Country, which includes reservations and other lands under federal supervision primarily for Indian use. Instead, tribal and federal laws hold sway. Tribal law is distinct from federal Indian law, as it is developed and applied by tribes to their members and territories.

In criminal cases, tribal courts have broad jurisdiction, with some exceptions. Tribal courts can try and punish tribal members for crimes, with sentencing limited to one year in jail and/or a $5,000 fine per offense. The Tribal Law and Order Act of 2010 expanded this authority to allow for up to three years' incarceration and/or a $15,000 fine.

Tribes generally do not have jurisdiction over non-Indians, except in specific circumstances, such as when a Native Nation opts to exercise Special Domestic Violence Criminal Jurisdiction under the Violence Against Women Reauthorization of 2013. In such cases, tribes can prosecute non-Indians for certain offenses like domestic violence, sexual assault, dating violence, and violation of protection orders.

For major crimes committed by Native Americans, federal jurisdiction applies, as outlined in the Major Crimes Act. If a crime is not listed in the Act and is not defined and punished by federal law, state law may be used in federal courts.

In civil cases, tribal courts have jurisdiction over tribal members, but their decisions may not be directly enforced against non-members. Tribal nations can establish their own police powers and law enforcement agencies.

Interplay with State Laws

While state laws generally do not apply on reservations, there are instances where state jurisdiction comes into play. Public Law 280, enacted in 1953, granted certain states extensive jurisdiction over criminal and civil matters involving Native Americans on Indian lands, which has been a contentious issue. Additionally, state courts have jurisdiction over wholly non-Indian crimes occurring in Indian Country, as affirmed in United States v. McBratney (1881) and Draper v. United States (1896).

In conclusion, the relationship between state law and tribal law is complex, with a history of shifting policies and court interpretations. While tribal sovereignty and self-governance are recognized, the specific jurisdiction and enforcement powers of tribal, state, and federal authorities continue to evolve through legislation and court decisions.

Tribal courts

The sentencing process in tribal courts varies depending on the tribe and the nature of the case, but it generally aims to incorporate traditional tribal values and customs. This may include a focus on rehabilitation and restoration rather than punishment, with sentences such as community service, restitution, or participation in traditional healing ceremonies.

The relationship between tribal courts and the federal government has been complex and fraught with tension due to inconsistent policies. Despite these challenges, tribal courts remain an important part of indigenous resistance to western legal and cultural influence.

Tribal citizenship

Tribal nations have the right to determine their own citizenship criteria, which are typically outlined in tribal constitutions, ordinances, or other legal documents. These criteria vary from tribe to tribe and are based on shared customs, traditions, language, and tribal blood. Two common requirements for membership are lineal descendancy from someone named on the tribe's base roll and a relationship to a tribal member descended from someone on the base roll. Other factors such as tribal blood quantum, tribal residency, or continued contact with the tribe may also be considered.

The legal and political status of tribal citizens is derived from the sovereignty of their tribal nation. Tribal citizenship determines whether the tribal nation has jurisdiction over an individual and their actions on or off tribal lands. Additionally, tribal citizens are entitled to certain rights and benefits, such as healthcare and education, as outlined in treaties with the US government.

It is important to note that tribal citizens are simultaneously citizens of their tribe, the United States, and the state in which they reside. This unique status means that tribal citizens are subject to federal and tribal laws on reservations, with limited application of state laws. Reservations are considered "Indian country," which includes all land within an Indian reservation and land outside a reservation designated for Indian use.

In summary, tribal citizenship is a critical aspect of the relationship between tribal nations and the US government, and it plays a significant role in determining the rights, benefits, and jurisdiction applicable to tribal citizens. The recognition of tribal sovereignty and self-determination has been a key focus of federal Indian policy since 1975, allowing tribal nations to revise their constitutions and assert their inherent right to govern their communities and protect their unique cultures and identities.

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