Reservation Sovereignty: Laws That Don't Apply

Indian reservations are lands set aside by the federal government for the use, possession, and benefit of an Indian tribe or group of Indians. As per the 1832 decision in Samuel A. Worcester v. State of Georgia, state laws do not apply to Native Americans on their reservations. Instead, tribal and federal laws apply. However, tribal courts lack the authority to sentence defendants to more than three years in prison, and tribal officers cannot arrest non-Indians who commit crimes on Indian land. This has led to a jurisdictional tangle that often makes prosecuting crimes committed on reservations difficult.

State laws do not apply to Native Americans in Indian Country (reservations)

The relationship between Indian tribes, the federal government, and state governments is complex and has evolved over time through Supreme Court cases, legislation, and policy decisions. However, the basic structure remains that Indian tribes are considered "domestic dependent nations" and "wards" of the federal government.

In criminal matters, the jurisdiction depends on the nature of the crime, the identity of the perpetrator, and the identity of the victim. If the perpetrator and victim are both tribal members, both the federal government and the tribe have jurisdiction over "major crimes", while the tribe has jurisdiction over other crimes. If the perpetrator is tribal and the victim is non-tribal, the federal government and the tribe share jurisdiction over major crimes, and both have jurisdiction over other crimes. If the perpetrator is non-tribal and the victim is tribal, the federal government has jurisdiction. Finally, if both the perpetrator and victim are non-tribal, the state has jurisdiction unless the crime is a federal offence.

Tribal courts have the authority to sentence defendants to up to three years in prison and fines of up to $15,000. For more serious crimes, a US attorney often assumes the case, as tribal courts lack the authority to impose longer sentences.

In civil matters, jurisdiction depends on whether the dispute arose in Indian Country and the identities of the parties involved. If the dispute is between tribal members, the tribe has jurisdiction. If the dispute involves a non-tribal plaintiff and a tribal defendant, the tribe has jurisdiction, but the non-tribal plaintiff must first sue the defendant in tribal court. If the dispute involves a tribal plaintiff and a non-tribal defendant, the tribe has jurisdiction only if it can establish a consensual relationship, direct impact on the tribe, or express authorisation from Congress. In all other cases, the state has jurisdiction.

It is important to note that the rules regarding tribal jurisdiction vary across states and there are many exceptions to these general rules.

Tribal and federal laws apply in Indian Country (reservations)

Indian Country is a term that refers to all land under the supervision of the federal government that has been set aside for the use of Native Americans. This includes all land within an Indian reservation and all land outside a reservation that has been designated for Indian use.

Tribal members are citizens of their respective tribes and of the United States. On federal Indian reservations, tribal and federal laws apply to members of the tribe, unless Congress provides otherwise. Native American tribes are considered sovereign nations, which means they have the authority to govern themselves and establish their own laws and customs within their reservations. This sovereignty is based on the fact that tribes were already governing themselves before settlers arrived in America, and the United States recognises the self-governing powers that tribes have retained.

Tribal laws and federal laws apply in Indian Country. Tribal laws are established by each tribe, which has jurisdiction over its members, with the authority to establish rules and regulations related to civil and criminal matters. 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 is limited by legal precedents and legislation.

Federal laws also apply in Indian Country. The Assimilative Crimes Act, for example, makes any violation of state criminal law a federal offence on reservations. 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 a party. This includes issues such as voting rights, social security, and military service.

In summary, tribal and federal laws apply in Indian Country (reservations), with tribal laws established by each tribe and federal laws applying to specific areas such as major crimes and interstate commerce.

Tribal courts can't sentence defendants to more than three years in prison

In the United States, tribal sovereignty is protected throughout the Tribal justice system or through a traditional court. There are approximately 400 Tribal justice systems throughout the nation, with most tribes now maintaining their own tribal court systems.

Tribal courts are established by appropriate tribal ordinance or resolution, and a Court of Indian Offences (CFR Courts) is established under the regulations of the Department of the Interior. The jurisdiction of tribal courts does not purport to be exclusive, and Indian courts are presided over by Indian judges, are observant of due process, and operate separately from the police.

The Indian Civil Rights Act (ICRA) extended certain federal rights found in the Constitution's Bill of Rights to Indians in Indian Country. When originally passed, the ICRA limited tribal court sentencing authority to 6 months in jail and a $5,000 fine. However, an amendment to the ICRA in 1986 increased the maximum possible sentence to 1 year in jail and a $5,000 fine.

The Tribal Law and Order Act of 2010 further increased the sentencing authority of tribal courts, allowing for sentences of up to 3 years and $15,000 per offence, for a combined maximum sentence of 9 years per criminal proceeding. This increased sentencing authority comes with certain requirements, including the right to law-trained, licensed defence counsel for indigent defendants.

Tribal courts do not have criminal jurisdiction over non-Indian offenders, with the exception of special domestic violence criminal jurisdiction (SDVCJ) recognised by the Violence Against Women Act (VAWA) 2013. This allows tribes to exercise jurisdiction over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence, dating violence, or violate certain protection orders in Indian Country. To exercise this authority, tribes must meet specific criteria, including guaranteeing defendants the rights outlined in the Tribal Law and Order Act of 2010.

Non-tribal members can't be arrested by tribal officers

In the United States, tribal police officers cannot arrest non-tribal members. While tribal law enforcement agencies provide a broad range of public safety services, including responding to calls, investigating crimes, enforcing traffic laws, executing arrest warrants, and providing court security, their authority to arrest individuals is limited to tribal members. This limitation stems from the 1978 ruling in Oliphant v. Suquamish Indian Tribe, where the U.S. Supreme Court stripped tribal nations of criminal jurisdiction over non-tribal members.

However, it is important to note that tribal officers do have the authority to investigate and detain non-tribal members suspected of committing crimes on reservations. This authority was affirmed in the 2021 Supreme Court ruling in United States v. Cooley, which clarified that tribal officers could detain non-Native individuals while waiting for backup from state or federal law enforcement to make an arrest. Despite this, tribal officers are still bound by the Oliphant ruling, which means that they cannot directly arrest non-tribal members, even on their land.

The lack of arrest authority for tribal officers over non-tribal members has created challenges for public safety on reservations. In some cases, non-tribal law enforcement may be unwilling or unable to respond promptly to incidents on tribal land, resulting in suspected criminals being released. This has led to concerns about a loophole that allows non-Native criminals to evade arrest and poses a risk to the safety of tribal communities.

To address these challenges, some legal scholars and tribal representatives have suggested that Congress or the courts reconsider the question of tribal jurisdiction over non-tribal members. For example, the latest reauthorization of the Violence Against Women Act includes a provision to grant limited tribal jurisdiction over non-Native domestic and sexual abusers who commit crimes on tribal land. However, this bill is currently stalled in the Senate.

The issue of tribal police authority over non-tribal members highlights the complex interplay between tribal sovereignty, federal law, and state law in the United States. While tribal nations have inherent powers of self-government, their criminal jurisdiction over non-tribal members is limited by federal court rulings. This situation has led to ongoing debates and efforts to reconcile public safety needs with the legal framework governing tribal lands.

Tribal members are subject to federal, state and local laws (outside reservations)

As U.S. citizens, American Indians and Alaska Natives are generally subject to federal, state, and local laws outside of reservations. However, on federal Indian reservations, tribal members are only subject to federal and tribal laws unless Congress provides otherwise. This exception to state laws on reservations is based on the legal concept of tribal sovereignty, which recognises that Indian tribes are separate political entities with inherent powers of self-government.

The distinction between laws applicable to tribal members and non-tribal members within reservations is crucial. Tribal courts, patterned after the Anglo system of jurisprudence, have jurisdiction over tribal members for both civil and criminal matters. Tribal laws may apply to any person within the territory of a Native American population, regardless of their tribal affiliation. In civil matters, tribal courts have jurisdiction over disputes between tribal members and those involving a non-Indian plaintiff and an Indian defendant. For criminal cases, tribal courts can handle "major crimes" and other offences committed by tribal members.

However, when it comes to interactions between tribal members and non-tribal members, the jurisdiction becomes more complex. In criminal cases, if the perpetrator is non-Indian and the victim is a tribal member, a federally certified agent has the right to investigate and prosecute. If both the perpetrator and victim are non-Indian, a county or state officer must make the arrest, and the case falls under state jurisdiction. In civil matters, tribal courts have jurisdiction only if there was a consensual relationship between the non-Indian and tribal member or if the conduct directly impacts the tribe's political integrity, economic security, or health and welfare.

While tribal members are generally subject to federal, state, and local laws outside reservations, there are exceptions. For example, the Indian Civil Rights Act grants tribes immunity from most federal civil cases. Additionally, the Assimilative Crimes Act makes any violation of state criminal law a federal offence on reservations. These complexities highlight the unique legal status of tribal members and the ongoing evolution of the relationship between Indian tribes, the federal government, and state governments.

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