By: Natalia Sells
The policy of Indian law has been transformed, destroyed, shifted, and rewritten throughout United States history. As it has been enumerated over and over again, the Supreme Court has held that Congress has plenary power over tribes. The Court has interpreted and reinterpreted what the Constitution and congressional acts mean in regards to tribes. This toxic relationship has tribes grappling with the overhead fear that Congress and the Court can easily write away their authority to oversee their own affairs. It’s time for the federal government to recognize that tribes are more than capable of managing their own affairs, one of those being having jurisdictional power in their tribal courts over criminal crimes that occur in Indian Country.
Tribes are more than equipped and capable of overseeing their own criminal jurisdiction, however Congress and the Supreme Court have taken sharp turns in this area, binding, relaxing, rebinding, and choking tribes in the process. In Ex Parte Crow Dog, the Supreme Court held that criminal crimes between Indian and Indian in Indian Country would be to the jurisdiction of the tribal nation where the act occurred. What could have been the catalyst for tribal nations to exercise jurisdictional authority in a growing colonized world instead had Congress practically running for their pens. Seeing this as their call to action, Congress exercised their plenary power and enacted the Major Crimes Act, which granted federal courts jurisdiction over certain “major” crimes that occur in Indian Country where either one or both of the parties are Indian. Three years later, the Court affirmed the act in United States v. Kagama, holding that federal courts, rather than tribal nations, have jurisdiction to prosecute “major” crimes. In 1978, the Supreme Court’s decision in Oliphant stated that tribes do not have inherent sovereignty to prosecute non-Indians who commit crimes in Indian Country.
Congressional Legislation That Has “Relaxed” the Federal Constraints of Tribal Criminal Jurisdiction Power
What has followed in wake of the above controversial cases has been a culmination of Congressional acts that have in some respects “relaxed” the federal constraints of jurisdictional power over tribal nations. These acts were enacted to address the high crime rates occurring on Indian reservations across the country. The Tribal Law and Order Act (TLOA) was signed into law in 2010 by President Obama to address crime in tribal communities and decrease the violence against American Indian and Alaskan Native women. TLOA aims to strengthen the relationship between the federal agencies investigating and prosecuting major crimes occurring on reservations while also enhancing tribal court sentencing. The Violence Against Women’s Reauthorization Act of 2013 (VAWA) was monumental as it “granted” tribes the authority to exercise criminal jurisdiction in their tribal courts over non-Indian defendants who commit acts of “domestic violence or dating violence or violate certain protection orders in Indian country”. The 2022 Reauthorization of VAWA has since extended the covered crimes to include: assault of tribal officers, child violence, dating violence, domestic violence, obstruction of justice, sex trafficking, stalking, and criminal violations of protection orders. Some tribes, like the Cherokee Nation and Muscogee (Creek) Nation of Oklahoma, wasted no time in amending their criminal code to reflect the 2022 VAWA updates and extend their criminal jurisdictional control.
Tribal Courts Continue to Grow and Become Unique Judiciary Systems and Are the Proper Judiciary Body to Address Criminal Offenses Occurring on Their Tribal Lands, Especially When It Involves Tribal Members.
There are about 400 tribal courts throughout the United States, each varying in size and diverse in their operation. Of those tribal courts, there are currently about 17 tribes who have adopted TLOA and many more looking to adopt VAWA. By adopting TLOA or VAWA, tribes have to implement certain defendant rights in felony-level cases including providing a licensed defense attorney at the expense of the tribe and having a judge who is licensed to practice law and has sufficient legal training to preside over the case. It is important to note that it is not mandatory for tribes to adopt these TLOA or VAWA, nor should it be. There are different obstacles that may be preventing some tribes from taking on this authority, including but not limited to costs, resources, and time. It may be more feasible and make sense for the tribe to allow the state to prosecute or leave it to the federal courts. The main point is that tribes have a choice.
While enhanced sentencing sounds appealing, there may be trade-offs made in exchange for such “power.” What makes tribal courts unique is the recognition of the tribe as a sovereign body and the opportunity to incorporate culture into their justice system offering opportunities for rehabilitation instead of just punishment. The Navajo Nation, who has not adopted TLOA, has created their own Navajo Nation Bar, Navajo Supreme Court, Peacemaking Court, and their Navajo Nation Code that recognizes the importance of the Dine culture and language. TLOA standards seem to align more with American court procedures (right to counsel) and may still require approval by the Bureau of Indian Affairs for long-term tribal correctional centers. It remains to be seen how congressional acts such TLOA lend themselves to cultural values.
Today, the conversation regarding violence against Indigenous peoples continues. And when it seems like tribes could be able to exercise their sovereignty in line with federal regulations, the Supreme Court reenters and readjusts the boundaries of criminal jurisdictional power in Indian country. It seems that the current unpredictability of criminal jurisdiction in Indian Country may continue to present challenges for tribes and only time will show what that looks like going forward. Whatever the future holds, tribal courts are a way for tribes to exercise their inherent sovereignty to better protect their tribal members.
Indian Country in Judicial Districts: https://www.fbi.gov/file-repository/indian-country-in-judicial-districts.pdf/view
General Guide to Criminal Jurisdiction in Indian Country: https://www.tribal-institute.org/lists/jurisdiction.htm
Natalia (she/her) is currently a 2L at Arizona State University’s Sandra Day O’Connor of Law. She graduated from Fort Lewis College with a B.A. in Business Administration and a minor in Communications. Her legal interests are primarily in Indian Law, policy, and education. Natalia enjoys early mornings jogs, hiking, and exploring different Indigenous events throughout Phoenix.