Reservations' Legal Exemptions: Understanding Sovereignty And Laws

Native American reservations are considered semi-autonomous lands, with their own rules, law enforcement officers, and judicial systems. While Native Americans are generally subject to federal, state, and local laws, on federal reservations, only federal and tribal laws apply to members of the tribe. Tribal laws may apply to any person within the territory of a Native American population, whether or not that person is Native American. This unique status of Native American tribes and reservations has been affirmed by the United States Supreme Court, which interprets them as separate political entities, distinct from states or foreign nations.

The result of this separate status is a complex jurisdictional situation, where the authority to enforce laws and prosecute crimes depends on the identity of the perpetrator and victim, as well as the nature of the crime. Tribal courts have jurisdiction over civil and criminal matters when both parties are tribal members, and in some cases when one party is a non-tribal member. For major crimes involving non-tribal members, federal or state authorities may have jurisdiction.

This complex legal landscape has led to challenges in addressing certain types of crimes, particularly in situations where non-tribal members are involved.

Tribal sovereignty

Reservations are semi-autonomous lands, with their own rules, law enforcement officers, and judicial systems. Native Americans are generally subject to federal, state, and local laws, but on federal Indian reservations, only federal and tribal laws apply to members of the tribe, unless Congress provides otherwise.

The US federal government recognises tribal sovereignty and has established a number of laws and policies that govern the relationship between the federal government and tribal nations. The Indian Reorganisation Act of 1934, for example, reversed decades of assimilation policies and established the right of tribes to determine their own forms of government and to establish and enforce tribal laws.

However, tribal sovereignty is not absolute. While tribes have the right to self-governance, their laws and decisions can be overridden by federal laws and policies. Additionally, tribes are subject to the authority of the US Congress, which has the power to regulate commerce with Indian tribes under the Constitution.

In criminal cases, there is an established tribal court system for minor crimes committed by tribal members on tribal lands, with a maximum sentence of 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.

In civil cases, tribal courts have jurisdiction over disputes between tribal members and between tribal members and non-Indians, but non-Indians can sue tribal members in state or federal court. Tribal laws may apply to any person within the territory of a Native American population, whether or not they are Native American.

Criminal jurisdiction

Reservations are semi-autonomous lands, with their own rules, law enforcement officers, and judicial systems. However, tribal laws are not vastly different from those of the state in which the reservation is located.

Tribal courts have criminal jurisdiction over "major crimes" when both the perpetrator and the victim are tribal members. In such cases, the federal government also has jurisdiction. If the perpetrator is a tribal member and the victim is not, both the tribal court and the federal government have jurisdiction. If the perpetrator is non-tribal and the victim is a tribal member, only the federal government has jurisdiction. If both the perpetrator and the victim are non-tribal, the state has jurisdiction unless the crime is a federal crime.

Tribal courts can impose maximum sentences of three years in jail and fines of up to $15,000, provided certain conditions are met. For example, the presiding judge must be a licensed attorney.

The harshest enforcement tool a tribal officer can legally wield over a non-tribal member is a traffic ticket. Tribal officers are often powerless to stop crimes committed by non-tribal members on reservations. In 1978, the Supreme Court case Oliphant v. Suquamish stripped tribes of the right to arrest and prosecute non-tribal members who commit crimes on tribal land.

The result is a jurisdictional tangle that often makes prosecuting crimes committed on reservations extremely difficult. For example, in 2011, the U.S. Justice Department did not prosecute 65% of rape cases reported on reservations. According to the department's records, one in three Native American women are raped during their lifetimes—two-and-a-half times the likelihood for an average American woman—and in 86% of these cases, the assailant is non-tribal.

Civil jurisdiction

Reservations are semi-autonomous lands, with their own rules, law enforcement officers, and judicial systems. Native Americans are generally subject to federal, state, and local laws. However, on federal Indian reservations, only federal and tribal laws apply to members of the tribe, unless Congress provides otherwise.

Tribes have immunity from federal civil cases and are not subject to the laws of the states the reservation is on. An exception to this immunity is direct violations of the Indian Civil Rights Act, which grants most of the rights in the Constitution and Bill of Rights.

In civil cases, tribal laws apply when a tribe has "jurisdiction" over a person in Indian country. Jurisdiction means the tribe's courts have legal authority over that person. If the tribe has jurisdiction, then the tribal court is where a plaintiff must file a complaint against a defendant.

As a general rule, in a civil dispute that arose in Indian country and is between tribal members, the tribe has jurisdiction. If the dispute involves a non-Indian plaintiff and an Indian defendant, the tribe has jurisdiction, and the plaintiff must first sue the defendant in tribal court before going to state or federal court. If the dispute involves an Indian plaintiff and a non-Indian defendant, the tribe has jurisdiction only if it can establish a consensual relationship between the defendant and plaintiff, or that the conduct in question directly impacts or threatens the tribe's integrity, economic security, or health and welfare. Otherwise, the state has jurisdiction. If both parties are non-Indian, the state also has jurisdiction.

Tribal jurisdiction in criminal cases is more complicated. If a crime is committed in Indian country and both the perpetrator and the victim are tribal members, the tribe and the federal government have jurisdiction over "major crimes", and the tribe has jurisdiction over other crimes. If the perpetrator is tribal and the victim is non-Indian, the tribe and federal government have jurisdiction over major crimes, and both have jurisdiction over other crimes. If the perpetrator is non-Indian and the victim is tribal, only the federal government has jurisdiction. If both the perpetrator and the victim are non-Indian, the state has jurisdiction unless the crime is a federal crime.

Tribal officers can only legally issue traffic tickets to non-Indians, which has led to a culture of lawlessness, with non-Indians believing tribal officers "can't do anything to me".

Tribal court systems

Tribal courts are empowered to resolve conflict and controversy and are generally funded through Public Law 638 Tribal Priority Allocations (TPA). They are directly oriented to the needs of tribal members and enforce their own tribal laws. The Bureau of Indian Affairs (BIA) provides training, technical support, and funding to all Tribal courts, including CFR Courts, which are operated by the BIA for tribes that do not have their own Tribal justice system.

Tribal courts handle a variety of criminal and civil cases involving Indian or non-Indian individuals arising in "Indian country". Criminal cases include misdemeanour cases involving Indians that occur within Tribal jurisdiction, with sentences limited to one year in jail and a $5,000 fine maximum. Criminal punishments may include labour, placement in prison, and/or the payment of court costs and fines. Civil matters heard in Tribal courts include divorce, guardianship, custody, child support, determination of paternity, name change, business contracts, personal injury, probate of non-trust property, and other civil disputes.

Tribal courts also play a crucial role in addressing issues such as substance abuse and violent crime, which have devastating effects on tribal communities. The Bureau of Indian Affairs has created the Diversion and Re-Entry Division (DRD) to work with tribes to strengthen and expand treatment options and ensure that justice, safety, and substance abuse prevention remain a consistent focus.

Tribal law enforcement

In criminal cases, there is an established tribal court system for minor crimes committed by Native Americans on tribal lands, with a maximum sentence of one year in jail and a $5,000 fine. For more serious crimes, federal or state jurisdiction usually applies, depending on the specifics of the case. For example, if both the perpetrator and the victim are non-Native Americans, the state has jurisdiction. If the perpetrator is non-Native American and the victim is a tribal member, only a federally certified agent has the right to arrest them. If the opposite is true, a tribal officer can make the arrest, but the case is tried in federal court.

In civil cases, tribal laws apply when an Indian tribe has "jurisdiction" over a person in Indian country. Jurisdiction is determined by whether the legal issue arose in Indian country and whether the involved parties are Native American or non-Native American. As a general rule, in civil disputes that arose in Indian country and involve a non-Native American plaintiff and a Native American defendant, the Native American tribe has jurisdiction.

While tribal laws and their enforcement vary across different reservations and tribes, it is important to obey speed limits and other driving rules when travelling through a reservation as a tourist. Alcohol-related offences are also taken very seriously on many reservations.

Frequently asked questions