Stacy Leeds Federal Indian Law I Criminal Jurisdiction

Stacy Leeds Federal Indian Law I Criminal Jurisdiction September 10 and September 17 classes

Assimilation • End of Treaty Making (1871) – Formally but not practically • Laws for suppression of culture, language, religion – Boarding schools, crimes of culture – Crow Dog (1883) – The Major Crimes Act (1885)

Crow Dog • Indian on Indian murder in Indian Country – Federal prosecution? – Tribal prosecution? • Federal courts lack jurisdiction, why? – No source of federal law – role of tribal sovereignty? • What would give rise to future federal court jurisdiction?

Applicable Federal Law at Time of Crow Dog • any murder committed in a place “under the exclusive jurisdiction of the United States” punishable by death – Is Indian country a place “under the exclusive jurisdiction of the United States” for criminal law purposes? – Exception for Indian-on-Indian crime or any crime committed by an Indian punished by local law of the tribe?

Canons of Construction • Treaties interpreted as Indians would have understood them at that time • Ambiguities read in the light most favorable to the Indians • Liberal construction rules

Major Crimes Act of 1885 • Federal jurisdiction extended to all major crimes committed by Indians within Indian country – victim status not relevant – focus on the defendant’s status as Indian • Does not terminate tribal jurisdiction – Silence = retained powers – Practical Reality? • Concurrent tribal/federal jurisdiction

Kagama • Indian Defendants murder, inside Indian Country • Indian Victims • What is the source of power to enact statute? – Treaty? – Constitution? – Other?

Indian Country • 18 USC 1151 – A = Boundaries notwithstanding rights of way – B = Dependent Indian Communities – C = Allotments with trust or restricted status • Any one of the 3 = Indian country for criminal jurisdiction purposes – General Bar to State Jurisdiction – Defines Boundaries of Federal Jurisdiction – Defines Boundaries of Tribal Jurisdiction

Factors: Criminal Jurisdiction • Place: – Did the crime take place in Indian country? • If not, none of the special federal criminal laws apply • If not, state law applies like any other crime • People – offender Indian? – victim Indian? • Substantive Law – type of crime was committed?

Tribal Authority • With 3 exceptions, tribal power does not generally extend beyond Indian country – ICWA concurrent jurisdiction, domiciled outside Indian country – Reserved rights (like off-rez hunting or water rights) – Environmental regulation (indirectly) • Inside Indian country, tribal power over Indians is presumed – “Indians” for criminal matters – Member/citizens for civil matters

State Authority • over Indians inside Indian country, limited powers • Worcester still applies, although with modifications • Mc. Bratney = non-Indian on non-Indian crimes

Discussion • Crime takes place at a non-Indian owned store on non-Indian owned fee land on the Navajo reservation • Crime takes place at non-Indian owned store on non-Indian owned fee land within the boundaries of the former Menominee reservation • Crime takes place within territorial boundaries of Muscogee (Creek)

Examples for Discussion • Crime takes place at a non-Indian owned business on a leased trust allotment – Either on or off reservation • Crime takes place at a non-Indian owned business on restricted fee lands

Diminishment Cases • Has something happened to reduced the reservation in size? – Beyond express intent of Congress to change reservation boundaries • Courts subjective test: – loss Indian character? – Open v. closed areas of the reservation?

Disestablishment Cases • Where the boundaries of a reservation have been taken away – Express congressional action

Major Crimes Act • Federal jurisdiction • Applies Indian defendant(s) – Doesn’t matter who the victim is • Specific list of crimes

General Crimes Act (Indian Country Crimes Act) • federal jurisdiction • crime is inter-racial • Indian on non-Indian crime • Non-Indian on Indian crime • Punished by local tribal law exception

Retained Tribal Power • Crow Dog – tribes retain inherent sovereign power to prosecute Indians for crimes in Indian country • Oliphant – but tribes cannot prosecute non-Indians

Assimilative Crimes Act • Applies to federal enclaves to allow state law crime definitions - where no rules existed • Prosecution still takes place in the federal court, but the law broken in incorporated from state law • Applies when state law is prohibitory in nature, but not when regulatory

Public Law 280 • PL 280 states have same criminal jurisdiction inside and out of Indian country • Federal criminal statutes do not in mandatory PL 280 states (MCA, GCA) – Why? • Tribes have concurrent jurisdiction with the state (unless PL 280 stripped tribes of jurisdiction – But as practical matter seldom exercise it – But see the Kansas Act distinction

Defendant is Indian (any tribe) • Tribal = inherent • Federal = need a statute – MCA – GCA – ACA • State = only if PL 280

Defendant is non-Indian • Tribe = no, absent express treaty provision to contrary • Federal = need statute(s) – GCA – ACA – a federal substantive criminal statute

When Crime is Not Major • Indian defendant, tribal only

Victimless Crimes • A non-Indian and an Indian are both arrested in the same day for DUI on a state road running thru the tribe’s jurisdictional boundaries – In which court(s) could prosecute? – Under what authority?

Who is Indian? • Typically member/citizen of a federally recognized tribe • For criminal jurisdiction, may be broader: – Some Indian blood? – “Recognized” by tribe or feds? – person cannot necessarily defeat jurisdiction by change in citizenship status

Sentencing Limitations • Tribal Court sentencing is limited by federal law – ICRA 1 year and/or $5000 • With open question as to sentence “stacking” – But Tribal Law and Order Act increases • 3 yrs and/or $15, 000 • Requirements – Rt of counsel similar to US Constitution – Judicial requirements and courts of record

2013 VAWA Tribal Provisions • Jurisdiction over all persons • Special domestic violence jurisdiction