American Laws On Reservations: An Indian Jurisdiction

Indian reservations are areas of land held and governed by a U.S. federal government-recognized Native American tribal nation. The tribal council has jurisdiction over the reservation, not the U.S. state it is located in, but is subject to federal law. As such, tribal and federal laws apply on reservations, and state laws do not. However, in criminal cases, there is an established tribal court for minor crimes committed by Native Americans on tribal lands, with most other crimes falling under federal jurisdiction.

Federal and tribal laws apply on reservations

Federal and Tribal Laws on Reservations

Native American tribes are considered sovereign nations with authority to govern themselves and establish their own laws and customs within the borders of their reservations. This dual citizenship status of Native Americans means that they are subject to federal law but not state law on reservations.

Tribal Law

Tribal laws are developed by tribes or Indian nations and apply to their members and individuals within tribal territories. Each tribe has its own laws and government, which are structured similarly to the federal three-branch system. For example, a tribe may have an executive division (headed by a governor, president, or chief), a legislature (a tribal council), and a judicial branch (a tribal court).

Federal Law

On reservations, federal law takes precedence over state law and applies to major crimes committed by or against Native Americans. Federal law also applies to actions involving interstate commerce and any legal issue in which the United States is involved as a party. This includes issues such as voting rights, social security, and military service.

Indian Country

The term "Indian country" refers to all land under the supervision of the federal government that has been set aside for the use of Indians. This includes land within an Indian reservation and land outside a reservation that has been designated for Indian use. Indian country is defined in a federal criminal statute (18 U.S.C. 1151), which outlines the specifics of what constitutes Indian country.

Court Jurisdiction

Court jurisdiction in Indian country is shared between tribes and the federal government, depending on the tribal affiliation of the parties involved and the specific crime or civil matter. Tribal courts have jurisdiction over disputes among tribal members and between tribal members and non-members for minor crimes with limited sentences.

Land Tenure and Federal Indian Law

With the establishment of reservations, tribal territories diminished significantly, and federal regulations subordinated tribes to the authority of the military and the Bureau of Indian Affairs. Federal law patented reservations to tribes, which became legal entities that operate in a corporate manner. Tribal tenure identifies jurisdiction over land-use planning and zoning, negotiating leases for resource extraction, and other economic development initiatives.

Limitations of Tribal Law

While tribal law generally applies on reservations, the power of tribal jurisdiction is not absolute. A complex web of legal precedents and legislation determines the extent of interaction between tribal, state, and federal laws. Federal law takes precedence in certain areas, and land ownership and demographic factors can also influence the jurisdiction of tribal law.

State laws do not apply to Indians in Indian country

In the United States, Indian country is all the land under the supervision of the federal government that has been set aside primarily for the use of Indians. This includes all land within an Indian reservation and all land outside a reservation that has been designated primarily for Indian use. As a general rule, state laws do not apply to Indians in Indian country. Instead, tribal and federal laws apply.

The concept of Indian country is broader than that of an Indian reservation. Indian country includes all Indian reservations, as well as dependent Indian communities and trust and restricted allotments located outside a reservation. An Indian reservation is land that has been set aside by the federal government for the use, possession, and benefit of an Indian tribe or group of Indians.

The legal status of Indian reservations as distinct from state land was established in a series of court cases known as the "Marshall Trilogy", decided in the early 19th century. In Cherokee Nation v. Georgia, the Supreme Court found that the Cherokee Nation was a "domestic dependent nation" under the protection of the federal government, and therefore state laws could not be imposed on the tribe. This decision set a precedent for the legal status of Indian nations within the United States, establishing that they are subject to federal and tribal laws rather than state laws.

Today, Indian reservations are considered to have a quasi-sovereign nation status. Indians living on a reservation are considered U.S. citizens and citizens of their tribe. Due to this dual nature, tribes have immunity from federal civil cases and are not subject to the laws of the states in which the reservation is located. The exception to this immunity is direct violations of the Indian Civil Rights Act, which grants most of the rights outlined in the Constitution and Bill of Rights.

In criminal cases, there are tribal courts for minor crimes committed by Indians on tribal lands, which can impose sentences of up to one year in jail and a $5,000 fine. Most other crimes have federal jurisdiction, except for crimes committed by non-Indians against non-Indians in a reservation, which are the responsibility of the state.

Tribal sovereignty and tribal laws

Tribal sovereignty in the United States is the concept of the inherent authority of Indigenous tribes to govern themselves within the country's borders. The U.S. federal government has recognized American Indian tribes as independent nations and entered into policy agreements with them via treaties.

The U.S. currently recognizes 574 tribal nations, 229 of which are in Alaska. The National Congress of American Indians explains that "Native peoples and governments have inherent rights and a political relationship with the U.S. government that does not derive from race or ethnicity."

The United States Constitution mentions Native American tribes three times:

• Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."
• Article I, Section 8 states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", determining that Indian tribes were separate from the federal government, the states, and foreign nations.
• The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.

These constitutional provisions, and subsequent interpretations by the Supreme Court, are today often summarized in three principles of U.S. Indian law:

• Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
• Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
• Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.

The Marshall Trilogy, a set of three Supreme Court decisions in the early nineteenth century, affirmed the legal and political standing of Indian nations. These were:

• Johnson v. McIntosh (1823), holding that private citizens could not purchase lands from Native Americans.
• Cherokee Nation v. Georgia (1831), holding the Cherokee nation dependent, with a relationship to the United States like that of a "ward to its guardian".
• Worcester v. Georgia (1832), which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations.

The Indian Appropriations Act of 1871 prohibited any future treaties and required the federal government to interact with the tribes through statutes. The Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States.

In 1883, the Indian Commissioner approved rules for a "court of Indian offenses", providing a venue for prosecuting criminal charges. In 1887, the General Allotment Act (Dawes Act) broke up the land of most tribes into parcels to be distributed to Indian families, with the remaining land auctioned off to white purchasers.

In the 20th century, the Revenue Act of 1924 and the Indian Citizenship Act of 1924 granted all non-citizen resident Indians citizenship. The Indian Reorganization Act of 1934 allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and tribal councils.

In 1953, Public Law 280 gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Native Americans, continue to believe the law is unfair as it imposed a system of laws on the tribal nations without their approval.

In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court concluded that tribal courts do not have jurisdiction over non-Natives. However, a 1981 case, Montana v. United States, clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members on fee-simple lands within its reservation when their "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

In Duro v. Reina (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian. In response, Congress passed the 'Duro Fix', recognizing the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members.

In the 21st century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin). The Violence Against Women Reauthorization Act of 2013 expanded the criminal jurisdiction of tribes over non-Indian perpetrators of domestic violence that occurs in Indian Country when the victim is Native American.

While tribal nations do not enjoy direct access to U.S. courts to bring cases against individual states, as sovereign nations, they do enjoy immunity against many lawsuits, unless a plaintiff is granted a waiver by the tribe or by congressional abrogation.

The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions. The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings.

Tribal court systems and tribal court jurisdiction

Tribal court systems are partially funded through Public Law 638 Tribal Priority Allocations (TPA). There are approximately 400 Tribal justice systems and five Regional CFR Courts throughout the United States. The BIA provides training, technical support, and funding to all Tribal courts, including CFR Courts.

Tribal courts have civil jurisdiction over Indians and non-Indians who either reside or do business on federal Indian reservations. They also have criminal jurisdiction over violations of tribal laws committed by tribal members residing or doing business on the reservation. Under 25 C.F.R. Part 115, tribal courts are responsible for appointing guardians, determining competency, sanctioning adoptions, marriages, and divorces, and adjudicating claims involving trust assets.

In criminal cases, there is an established tribal court for minor crimes committed by Indians on tribal lands, which is limited to sentences of one year in jail and a $5,000 fine maximum. Most other crimes have federal jurisdiction, except for crimes involving non-Indians in Indian Country, which are usually brought to state court.

The Indian Child Welfare Act (ICWA) gives tribal courts the right to intervene in child custody proceedings. Tribal courts can accept a transfer of jurisdiction over a child custody proceeding commenced in a state court upon the motion of a parent or Indian custodian. The ICWA states that a child custody proceeding involving an Indian child pending in a state court may be transferred to a tribal court absent declination by the tribal court.

Tribal courts are funded under the Tribal Priority Allocation portion of the tribe's Indian Self-Determination Act, a contract with the government, and with tribal resources. Tribes may also receive funding under Title IV-B of the Social Security Act for Family Preservation programs that may fund tribal court operations.

Assimilative Crimes Act

The Assimilative Crimes Act (ACA) makes any violation of state criminal law a federal offence on reservations. It applies when a person commits an act or omission on federal land that is not a crime under federal law but is a crime under the state law of the state in which the enclave is located. The ACA fills in the gaps where there is no federal criminal law governing conduct on federal land.

To determine whether a particular state statute is assimilated, a court must first ask whether the defendant's act or omission is punishable by any enactment of Congress. If the answer is no, then the state law is assimilated. If the answer is yes, the court must ask whether the federal statutes that apply to the act or omission reveal a legislative intent to preclude the application of the state law in question.

For example, because there is no federal DUI law, the ACA is often used to prosecute individuals who drive while intoxicated or impaired on federal lands. The ACA has also been used to prosecute individuals for child abuse, burglary, embezzlement, and sodomy.

The ACA does not assimilate penal provisions of state regulatory schemes or incorporate state administrative penalties, such as the suspension of driving licences. Federal agency regulations that are made criminal by statute also preclude the assimilation of state law.

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