The Non-Indian Problem

By: Jens Camp

Note: When I use the term Tribes, I mean the indigenous nations which are currently considered federally-recognized Indian Tribes by the United States.  These Tribes are incredibly diverse—currently there are 573 federally recognized Tribes, each with their own unique cultures and systems of governance—so anything I express about them is intended to apply generally and may not accurately capture the positions of certain tribal nations. [i]  In writing out this article, I will lay out a very brief and limited overview of the development of criminal jurisdiction in Indian Country.  For a more in-depth discussion of the development of criminal jurisdiction in Indian Country and other related topics, such as developments in tribal implementation of Special Domestic Violence Jurisdiction under the Violence Against Women Act, I would recommend reading the following: Samuel E. Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians, 57 UCLA L. Rev. 553 (Dec. 2009); Maura Douglas, Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes, U. Pa. L. Rev. 745 (2018).

 

1.  Introduction:

The United States has a long-standing policy of subordinating the ability of Tribes to exercise criminal jurisdiction over non-Indians. [1]  United States officials, including Supreme Court Justices, have used outright racist arguments to justify this policy.[2]  It is my intention to shine a light on the gross injustices that the United States has perpetuated against Tribes, in robbing them of their sovereign right to assert criminal jurisdiction over non-Indians, and, thereby, exposing their communities to greater danger from non-Indian criminal activity.

 

2. Tribal Justice: From Pre-European Contact to the Modern Era

Prior to the arrival of Europeans to the Americas, Tribes used their own unique systems of laws and justice to protect their communities from criminal activity. [3]  These systems varied widely between Tribes, and, unlike the Eurocentric claims of United States officials, Tribes were not, as the 1834 Attorney General put it, “‘[w]ithout laws’” but were rather quite complex. [4]; [5]

Despite the wishes of many tribes to be left on their own, with their own systems of governance, the United States, in the early 19th Century, began taking large strides in depriving Tribal governments of their autonomy—and making life miserable for Indian people generally.  In the early 19th Century, the Supreme Court held that Tribes were not foreign nations but rather domestic dependent nations, possessing only a limited sovereignty. [6]  This Court then, in a not-at-all bigoted fashion, elaborated that the relationship between Tribes and the United States, respectively, “resemble that of a ward to his guardian.”[7]  The Supreme Court rationalized that this paternalistic, ward-guardian relationship emerged because the Tribes’ “incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of their sovereignty….” [8]

Several modern principles in Indian Law have emerged around the mold of the ward-guardian status and are integral to understanding the reaches of tribal criminal jurisdiction. First is the federal government’s “trust” obligation, which largely encourages the federal government to protect the interest of Tribes, especially their interests in treaty rights. [9]  The Supreme Court has elaborated that this “trust” obligation compels the federal government to be “held to the standard of a fiduciary” when carrying out the management of Indian Affairs. [10]

Second, a person’s legal status as an Indian—or non-Indian—limits the ability of sovereigns, such as state governments and Tribes, to assert criminal jurisdiction over certain offenses. [11]  The Ninth Circuit has even held that criminal defendants can raise Indian status as an affirmative defense when that status is an essential element of an offense. [12] Currently, there is no Supreme Court case or Congressional statute that expressly outlines who is Indian for the purposes of criminal jurisdiction. [13]  However, the Ninth Circuit and Eighth Circuit have each defined their own unique tests for defining whether a person has this Indian status. [14]; 15]  The lack of consensus as to who has Indian status continues to be a source of contention for the criminal justice systems of non-Indian sovereigns, such as the United States government [16].

Third, Congress has “plenary authority” to control and manage tribal affairs.  [17]  The Supreme Court has recognized that this plenary power, as the name implies, is subject to few restrictions. [18]  For instance, the Supreme Court held that Congress can mettle with purely domestic tribal affairs, such as granting federal courts the right to assert criminal jurisdiction over Indian-on-Indian Crime in Indian Country. [19]

Fourth, the Supreme Court has ruled that Tribes retain all their inherent powers as sovereigns, unless “withdrawn by way of treaty or statute, or by implication as a necessary result of their dependent status.” [20] The Supreme Court has recognized that Tribes retain many inherent rights, such as the right to tax people and businesses, both Indian and non-Indian alike, operating within their reservations [21].  Recently, the Supreme Court upheld a federal statute recognizing the rights of Tribes to assert criminal jurisdiction over all Indians, regardless of their tribal membership. [22]  In the latter half of the 20th Century, however, in a case concerning whether Tribes possessed the right to assert criminal jurisdiction over non-Indians, the Supreme Court decided to place a heavy limit on the extent of these inherent rights that still largely prevails today. [23]

 

3. Oliphant and the Elimination of Tribal Criminal Jurisdiction Over Non-Indians

In Oliphant v. Suquamish, the Supreme Court of the United States held that absent a treaty right or statutory language to the contrary, Indian Tribes cannot extend criminal jurisdiction over non-Indians. [24]; [25]  The Oliphant Court accomplished this finding by stitching together the blatantly racist and misinformed opinions of U.S. officials to arrive to the conclusion that Tribes never had the inherent power to criminally try and punish non-Indians due to their dependent status. [26]

Oddly enough, in arriving to the conclusion that Tribes never possessed the inherent power to assert criminal jurisdiction over non-Indians, the Court admitted that some Tribes with well-established systems of law, such as the Choctaw, negotiated for this power via treaty. [27] The Court, however, then refuted this point by arguing that the relevant Choctaw treaty did not grant the tribal nation authority to assert criminal jurisdiction over non-Indians because the Choctaw only expressed “a wish that Congress may grant them this power.” [28]. The Court further reasoned that because the Choctaw only requested congressional authority to assert this right, such a request would necessarily be inconsistent with a finding that Tribes’ possessed this inherent right. [29]  The Court’s reasoning here is suspect because there are plenty of other instances where Tribes have sought permission from the United States to exercise an inherent power and were still held to have retained that power.  [30]

The Oliphant decision’s elimination of this tribal power is significant given that prior to the ruling, many approximately twenty-five (25) percent of reservation court systems asserted tribal criminal jurisdiction over non-Indians. [31]  . The Oliphant ruling virtually eliminated non-Indian jurisdiction for all of Indian Country because few tribes had treaty rights conferring criminal jurisdiction over non-Indians, and a portion of those few lost these rights to treaty abrogation. [32]; [33]  After this decision, Tribes continued to suffer from the affliction of non-Indian crime in their Indian Country, and the few defenses these Tribes had been using were virtually eliminated for the next several decades to come. [34]; [35]

 

4. The Post-Oliphant Era & a Partial Oliphant-Fix

Since Oliphant, Indian Country has been subject to some of the highest rates of criminal victimization per capita in the United States. [36]  For instance, native women are more likely to be battered, raped, and sexually assaulted than any other female population in the U.S.,[37] and the majority of these female victims report that non-native men were the perpetrators. [38]  Non-tribal prosecutors often have trouble charging non-Indian perpetrators for criminal offenses like these when committed on or near tribal land because of the confusion around ill-defined areas of law, like whether a defendant has Indian status or the land is Indian Country. [39];[40]. When these ambiguities emerge, many non-Indians have been able to escape criminal liability due to either prosecutor offices’ fear of using their discretion over a case that may fall outside their jurisdiction. [41]; [42]

In 2013, these injustices, specifically those targeted at Indian women, led Congress to create a partial “Oliphant-Fix” by amending the Violence Against Women Act (“VAWA”) to recognize the inherent power of Indian Tribes to assert a limited criminal jurisdiction over certain non-Indians. [43]; [44]; [45] Specifically, this recognition authorized certain eligible Tribes to assert a special domestic violence criminal jurisdiction (“SDVCJ”) over non-Indians. [46]  Congress’ recognition of certain Tribes’ authority to prosecute Non-Indians has led to significant victories for Indian Country in the fight to assert their sovereignty, which is made evident by the voices of people in Indian Country celebrating this victory. [47]; [48] The Former Tribal Council Chairwoman of the Eastern Band of Cherokee Indian, celebrated this victory, exclaiming,

“[I]t is incredible for us to be able to say, we can do this, we can protect you.  You are our citizen, and it matters to me as a tribal leader…to say that this tribe will do everything we can to protect you.” [49]

Additionally, since 2018, Tribes were able to convict approximately 74 non-Indian offenders under this SDVCJ jurisdiction, demonstrating the statistical victories of this VAWA Amendment. [50]

Unfortunately, the SDVCJ jurisdiction is far from perfect.  First, the VAWA amendment requires Tribes to provide all non-Indian defendants with more rights than some Indian defendants because Tribes must provide non-Indian defendants with additional rights guaranteed under the U.S. Constitution. [51]  Many tribes might also see this requirement as being problematic because the only way they can impose criminal punishments against non-Indian offenders is to abandon their traditional systems of law for a Westernized court system. [52].

Second, Tribes may not even be able to implement SDVCJ jurisdiction because the VAWA 2013 amendment requires them to spend large sums of money on providing non-Indian defendants with these additional federal constitutional safeguards. [53]  The sources of these costs may include, but are not limited to: providing indigent defendants with counsel, incarceration upkeep, and jury costs. [54]

Third, the SDVCJ jurisdiction still leaves Tribes highly vulnerable to non-Indian offenses because it only applies to an incredibly limited number of offenses and non-Indian persons, leaving out a litany of other offenses which may not be charged for the reasons previously stated. [55]; [56]  For instance, a Tulalip Tribal Prosecutor complained that she was able to properly charge and convict a non-Indian defendant for beating his wife, as a domestic violence offense; however, she could not charge this same defendant for beating his wife’s son with a telephone cable.  [57]

Fourth, some of the underlying policies around the Oliphant-Fix are highly problematic.  In a discussion about implementing VAWA in 2011, several U.S. Senators expressed concern over the proposition of Tribes exercising criminal jurisdiction over non-Indians, explaining

“A non-Indian subject to tribal jurisdiction would enjoy few meaningful civil-rights protections. This is largely a result of the tribes’ unique nature… One practical consequence of the reservation tribes’ nature is that ‘[a]s separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.’” [58]

Meanwhile, the highly-developed courts of the United States—the ones that provide criminal defendants with all these civil rights—have routinely used their authority to sanction the murder of Indian defendants in their criminal prosecutions. [59]  Some tribal officials have even scrutinized the United States’ criminal justice system’s application of capital punishment. [60]  For example, in United States v. Mitchell, the then Navajo Nation Attorney General  deposed a federal court’s imposition of the death penalty on one of its members in a letter to the federal prosecutor, explaining that the Nation’s “‘[c]ulture and religions do not support the concept of capital punishment…our culture and religion teach us to value life and instruct against the taking of human life for vengeance.’” [61]

Finally, the SDVCJ jury requirement—expressly prohibiting tribal courts from systematically exclude non-Indian jurors during the voir dire process—reflects one of the greatest hypocrisies in this limited recognition of tribal authority. [62]   How so is the jury requirement so hypocritical?  Well, whereas non-Indians are generally entitled to effort on behalf of tribal courts to not systematically exclude jurors of their peers (i.e. Non-Indians) when asserting SDVCJ jurisdiction, Indians have no equivalent entitlement to a jury of their peers when being prosecuted by a state or federal court with concurrent criminal jurisdiction. [63] Consequently, the views of Indian people—who probably have a better understanding of the Indian defendant’s unique cultural background and upbringing—will likely be absent from the defendant’s trial, exposing him to a less sympathetic jury pool than he might have if granted a right mirroring that of the SDVCJ jury requirement for non-Indians. [64]; [65]  Furthermore, this disparity can become particularly problematic when an Indian criminal defendant is subject to a state or federal court’s concurrent criminal jurisdiction far away from where the crime was committed on Indian land, where Indian jurors may not be available. [66]; [67]

5. Conclusion & Final Thoughts

Overall, the 2013 amendment to VAWA, providing a partial Oliphant-Fix, is a move in the right direction for bolstering the sovereignty of Tribes and protecting Indian Country from non-Indian criminal conduct. [68]  However, many tribal communities still face the problems that they experienced in the Pre-Oliphant Fix era because of either the expenses associated with asserting the SDVCJ jurisdiction or the limitations of the SDVCJ jurisdiction itself. [69]; [70]  Congress can resolve many of these problems by recognizing the inherent right of Tribes to assert general criminal jurisdiction over non-Indians. [71]  Until Congress does this—or the Supreme Court reverses Oliphant’s faultily reasoned proposition that Tribes never had this inherent power—tribal communities will continue to be uniquely exposed to the dangers of non-Indian criminal activity. [72]

 

[i] Nat’l Cong. Of Am. Indians, Tribal Nations and the United States: An Introduction, May, 8 2019, http://www.ncai.org/about-tribes

[1] Oliphant v. Suquamish, 435 U.S. 191, 197 (1978).

[2] United States v. Kagama, 118 U.S. 375, 384-85 (1886) (holding that Congress can interfere with Indian affairs because “[t]he power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is [nec]essary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied; and because it alone can enforce its laws on all the tribes”).

[3] Angelique W. Eaglewoman & Sacy L. Leeds, Mastering American Indian Law 46-47 (2nd ed. 2019).

[4] Oliphant, 435 U.S. at 197 (quoting H.R.Rep. No. 474, 23d Cong., 1st Sess., 91 (1834)).

[5] See Robert B. Porter, Building a New Longhouse: The Case for Government Reform Within the Six Nations of the Haudenosaunee, Buff. L. Rev., 806, 807-8 (1998) (describing the intricate forms of pre-European contact governance system of the Haudenosaunee, which successfully bound together multiple Tribes within a single constitutional government).

[6] 30 U.S. 1, 17 (1831).

[7] Id.

[8] United States v. Wheeler, 435 U.S. 313, 323 (1978).

[9] Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942)

[10] Id.

[11] See e.g. United States v. McBratney, 104 U.S. 621 (1881) (holding that states have exclusive jurisdiction over crimes solely involving non-Indians when in Indian Country); United States v. Cruz, 554 F.3d 840, 843 (9th Cir. 2009) (holding that Indian status is an essential element of criminal prosecutions of crimes involving Indian status as part of the offense).

[12] United States v. Bruce, 394 F.3d 1215, 1222 (9th Cir. 2005).

[13] Id.

[14] Cruz, 394 F.3d at 845 (providing a two-prong test for determining Indian status).

[15] United States v. Stymiest, 581 F.3d 759, 763-64 (8th Cir. 2009) (providing a multi-factor balancing test for determining test for determining Indian Status).

[16] Samuel E. Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians, 57 UCLA L. Rev. 553, 567-72 (Dec. 2009)

[17] Lone Wolf v. Hitchcock, U.S. 187 U.S. 553.

[18] See United States v. Sioux Nation, 448 U.S. 371, 413-15 (1980).

[19] Kagama118 U.S. 375, 384-85 (1886).

[20] Wheeler, 435 U.S. 313, 323

[21] Kerr-McGee Corp. v. Navajo, 471 U.S. 195, 196 (1985)

[22] United States v. Lara, 54 U.S. 193, 194 (2004).

[23] Oliphant, 435 U.S. at 197.

[24] Id.

[25] See id. at 197 (recognizing the right of a few tribes with treaty rights to assert criminal jurisdiction over non-Indians still retain the ability to assert that jurisdiction).

[26] Id. at 196

[27] Id. at 197

[28] Id. at 198

[29] Id. at 198.

[30] See, e.g. Kerr-McGee Corp., 471 U.S. 195, 196 (holding that the Navajo Nation, despite seeking approval from the Secretary of the Interior to tax non-Indians, still retained the inherent power to tax non-Indians regardless of whether the Secretary granted this power because the power to tax people within a Tribe’s territory is an essential aspect of sovereignty).

[31] Oliphant, 435 U.S. at 196

[32] Id.

[33] William C. Canby Jr., American Indian law in a Nutshell 182 (6th ed. 2015)

[34] See Lara, 54 U.S. 193, 207

[35] Maura Douglas, Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction, 166 UPALR 745, 764 (2018).

[36] Nat’l Institute of Justice, Overview of Tribal Crime and Justice, (June 23, 2016) https://nij.ojp.gov/topics/articles/overview-tribal-crime-and-justice.

[37] Sarah Deer & Mary K. Nagle, Return to Worcester: Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children, Harv. J.L. & Gender, 179, 181 (2018) (citing to Bureau of Justice Stats., Office of Justice Programs, U.S. Dep’t of Justice, American Indians and Crime: A BJS Statistical Profile, 1992-2002, at 7 (2004), https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=203097 [https://perma.cc/HVL4-QXNH]).

[38] Amnesty Int’l, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA 4 (2007), https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf

[39] Samuel E. Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians, 57 UCLA L. Rev. 553, 565-72 (Dec. 2009) (explaining that non-Indian criminal offenders can escape liability because of the frustration of non-tribal prosecutors’ offices to determine whether their courts had proper jurisdiction over offenders with ambiguous Indian Statuses).

[40] Supra note 38, at 62.

[41] Supra note 39, at 568

[42] Supra note 38, at 34

[43] Act Mar. 17, 2013, Pub. L. No. 113-4, § 204(b)(2) (recognizing the inherent power of participating Tribes to assert SDVJ jurisdiction over all persons).

[44] Nat’l Cong. of Am. Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction Five-Year Report, at 1 (2018) http://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf.

[45] This VAWA amendment is sometimes referred to as a partial Oliphant-Fix due to its reversal of the Oliphant decision when Tribes assert SDVJ jurisdiction. [45]  Zachary S. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, Colum. L. Rev., 657, 679 (2013).

[46] See 25 U.S.C. § 1304(b) (defining the nature of the special domestic violence criminal jurisdiction).

[47] See supra note 44, at 1 (explaining that, as of 2018, Tribes reported their conviction of 74 persons under their use of this SDVCJ).

[48] Id. at 9.

[49] Id.

[50] Id. at 1.

[51] Compare 25 U.S.C. § 1304(b) (stating that special criminal violence jurisdiction defendants are always entitled to all the rights defendants generally have under the United States Constitution) with 25 U.S.C. § 1302(c)(stating that tribes only have to provide Indian defendants with all the rights they generally would have under the United States Constitution if the tribe is seeks to impose a sentence greater than one year).

[52] See Samuel E. Ennis & Caroline P. Mayhew, Federal Indian Tribal Criminal Justice in the Self-Determination Era, 38 Am. Indian L. Rev. 421, 422 (2014) (explaining that by adopting certain federal procedural safeguard required to assert SDVJ jurisdiction, Tribes necessarily further westernized their court systems).

[53] See Id. (explaining that many Tribes might have trouble acquiring the means to assert SDVCJ jurisdiction because of the high costs associated with granting criminal defendants with  the additional rights under the U.S. Constitutional required by the 2013 VAWA amendment) (citing to Gov’t Accountability Office, Tribal Law and Order Act: None of the Surveyed Tribes Reported Exercising the New Sentencing Authority, and the Department of Justice Could Clarify Tribal Eligibility for Certain Grant Funds 3 (May 30, 2012 https://www.gao.gov/assets/600/591213.pdf).

[54] Supra note 44, at 29-30 (explaining that the costs of implementing SDVCJ jurisdiction is prohibitively expensive for some Tribes).

[55] See 25 U.S.C.A. § 1304(c)(1)-(2) (SDVJ jurisdiction only applies to the following offenses: domestic violence; dating violence; and violations of protection orders.

[56] See 25 U.S.C.A. § 1304(b)(i)-(iii) (explaining that Tribes cannot assert this jurisdiction over any non-Indian but rather must verify that the these defendants possesses one of the following connections to Indian Country: (1) resides in the Indian country of the participating tribe; (2) is employed in the Indian country of the participating tribe; or (3) is a spouse, intimate partner of (a) a member of the participating tribe; or (b) an Indian who resides in the Indian country of the participating tribe.

[57] Supra note 35, at 784-85 (citing to Sharon Jones Hayden, Tulalip Tribes, Remarks at Dep’t of Justice Domestic Violence Awareness Month Conference, Dep’t of Justice (Oct. 6, 2015), https://www.justice.gov/opa/video/domestic-violence-awareness-month-program.

[58] S. REP. 112-153, 48 (emphasis added).

[59] Death Penalty Info. Ctr., Native Americans on Death Row, https://deathpenaltyinfo.org/death-row/native-americans/native-americans-on-death-row.

[60] United States v. Mitchell, 502 F.3d 931, 948 (9th Cir. 2007).

[61] Id. at 995.

[62] 25 U.S.C.A. §1304(d)(3)(A)-(B).

[63] Mitchell, 502 F.3d at 952.

[64] Christie Thompson, the Navajo Nation Opposed His Conviction.  The U.S. Plans to Do It Anyways, The Marshall Project, Sept. 17, 2019,  https://www.themarshallproject.org/2019/09/17/the-navajo-nation-opposed-his-execution-the-u-s-plans-to-do-it-anyway (explaining the challenges an Indian defendant faces in a criminal prosecution involving a virtually non-Indian jury).

[65] See State v. Wanrow, 559 P.2d 548, 559 (holding that the Indian self-defense defendant was not allowed to introduce evidence of her Indian culture to show that her use of force was reasonable given her unique perception regarding the circumstances surrounding her alleged criminal conduct).

[66] Supra note 64

[67] See Ex Parte Crow Dog, 109 U.S. 556, 571 (1883) (explaining that Indians may be subject to unfair trials when brought before a non-tribal court system).

[68] Supra note 44, at 29-30 (explaining that the costs of implementing SDVCJ jurisdiction is prohibitively expensive for some Tribes).

[69] See supra note 57, at 785 (explaining that Congress has attempted to pass numerous bills that would expand tribal criminal jurisdiction over different offenses and victims who lacking ties to the criminal defendant currently required by the 2013 amended VAWA statutes, but has not successfully passed any of these statutes).

[70] See Lara, 54 U.S. at 210. (explaining that Congress can constitutionally relax restrictions on the inherent powers of Tribes via passage of statutes).

[71] See id.

[72] Supra note 57, at 785

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