Tribal Jurisdiction

Daisy Bradanini

DEFINITION:

Defined as “the power or authority of a court over a particular person, area, or subject matter” by the tribalinstitute.org, jurisdiction takes on a more complex meaning when placed in the context of Native American tribes(par 1). Specific tribal jurisdictions are something of a lot of detail and complexity, as there are a multitude of rules and regulations that very greatly to each tribe and state. I believe the complex entity of tribal jurisdictions can be best defined when put simply as the power necessary to maintain Indigenous people’s rights of self-government, while still being subjected to restrictions imposed by Congress.Tribal governments attempt to preserve traditions and customs while being forced to follow that of outside law proving to be clear examples of, “excessive paternalism and ethnocentrism,” or more simply put: white bias(Vollman 388). This forced law upon tribal nations is something that should be addressed and talked about, as many times it is twisted or just ignored, and ends up hurting tribal nations instead of helping.

EARLY HISTORY:

Since the very beginning of English settlement, settlers have dictated and attempted to create laws defining the relationship of Native Americans and the settlers themselves.Because of British settlers’ ethnocentric bias, and their unwarranted and unwelcome claim to all of the land, legal negotiations began as early as the Proclamation of 1763, which created a boundary line of Native American lands west of the Appalachian Mountains. In British eyes, this appeared to be beneficial and salutary to the Natives, as it was the first time Indigenous rights to land had been acknowledged. According to For Whom Sovereignty Matters, by Joanne Barker, such efforts to acknowledge Native sovereignty were less motivated by doing right by Native Americans, but more about, “the assertion of the respective nations’ status as the more powerful sovereign within a given territory, against other European powers and over indigenous peoples”(Barker 5). This was also the first documented federally enforced case of attempted colonial jurisdiction of tribes.Regardless of this proclamation, colonists illegally went on purchasing and expanding into Indigenousland with no fear of punishment (Clinton 329-388). The Proclamation had little effect in bettering the lives and preventing abuse of the natives, was completely thrown out when the colonies declared independence from Britain.

            After breaking independence from Britain, the American colonies continued to expand west,and because of European settlers’ refusal to acknowledge that the Native Americans had any right to this land, the settlers expanded through the Louisiana Purchase. As many Indigenous peopleinhabited parts of this property, the government debated what to do, as their need for expansion clearly outweighed the desire to respect that of Native culture and livelihood. Johnson v. McIntoshin 1823, was the first Supreme Court case that set the precedent for American seizure of Indigenouslands. The Court held that “Indians themselves did not have the right to sell property to individuals” and outlined that when a European nation finds a new land, it has the right to take that land by conquest or occasionally purchase (Lessee v. McIntosh). Americans began seizing native lands with no regards to their lives, leading to the Indian Removal Act and the Trail of Tears in 1831 (Mintz par 4).

            The pattern of forcing law is continued in 1871, when the Indian Appropriations Act was put into place, taking away Native rights as independent nations and legally placing them as “wards of the federal government,” (Events in the West 1870-1880” par 7). This Act is later affirmed through US v. Kagama, in 1886, which ruled plenary power over all native affairs to that of the federal government, not of any particular state government under which their lands may preside. 3 years prior to US v. Kagama, a native from the Lakota tribe killed a fellow tribe member and followed typical tribal customs to pay for such a crime. This was unacceptable to United States federal government, as they felt the man deserved a much more severe punishment, and thus the modern Tribal Court was founded in order to punish minor crimes between Indigenous people and resolve disputes according to US law (“The History of the Tribal Courts”). This attempt to force natives into European way of life was further seen through the Allotment Act, which promisedIndigenous people landownership, then after a certain amount of time forced heavy property tax upon them which forced them to sell their own land back to the Europeans.These actions set the precedent to the insertion of jurisdiction of federal powers into Native ways of life, as the rest of history follows a pattern of unfair treatment of Native Americans, and the harsh and unjustified invasion of white settlers into their century’s old customs.

20THCENTURY TO TODAY:

In 1934, it appeared that US government was releasing the tight ethnocentric grip they were attempting to maintain on Native Americans with the Indian Reorganization Act. The book, The New Day for the Indians, details the results of this Act, stating how new policies of self-government of tribes were implemented, land that was taken during the Allotment Act was returned, or purchased and returned through federal funds, and there were more education and employment opportunities than ever before (Nash et al.). But soon after, the sovereignty of Native American nation was attacked once again with the House Concurrent Resolution 108 in 1953, which stated that Natives were “subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all the rights and prerogatives pertaining to American citizenship” (U.S. Statutes at Large67: B132).This completely disregarded the needs and wants for the Native people as it subjected them to unfair taxation, and most importantly loss of their own jurisdiction, and the complete force of US governmental jurisdiction on Indigenous people.

This termination period was recognized as a failure in the 1960’s, only lasting 12 years,and the Indian Civil Rights Act of 1968, which is still used today, was created(Native American History and Culture par 2). This act helped to strengthen the rights of tribal members and promote Native self-government, while also protecting certain rights of the people(Due Process in Indian Country par 7). Tribes under the jurisdiction of the Indian Civil Rights Act, have overall tribal rule with some exceptions. Tribal rule cannot interfere with any of the following rights as outlined by the Northwest Justice Project, “free exercise of religion and freedom of speech, freedom from unreasonable search and seizures, freedom from prosecution more than once for the same offense, not testify against yourself in a criminal case, not have private property taken for public use without just compensation, a speedy and public trial, freedom from excessive bail, excessive fines, cruel and unusual punishment and, for conviction of any one offense, equal protection of the laws and freedom from deprivation of liberty or property without due process of law, freedom from any bill of attainder or ex post facto law, and a trial by jury of at least six persons, if accused of an offense punishable by imprisonment”(par 9).Although patronizing attitudes, and partisanship is not as clearly seen in today’s tribal jurisdictions than it has been in the past, it is still extremely prevalent.                                    

SUPREME COURT CASES:

On top of the Indian Civil Rights Act, ICRA, a multitude of Supreme Court cases have also shaped how tribes are governed within American law, seemingly displaying the attitude that federal law will always top that of any state, or tribal jurisdiction, regardless of the want or need for it.One of the first Supreme Court cases after the ICRA was instated was Oliphant v. Suquamish Indian Tribe which ruled that “the tribes lost authority to try non-Indians when they became dependents of the United States”(Criminal Resource Manual 682; JM 9-20). This decision took away Native sovereignty even more so than before, as it took away Native rights to complete jurisdiction within their own lands. Another case of importance was National Farmers Union Insurance v. Crow Tribein 1985. This court case held that any petitioner to any federal jurisdictions must first exhausts all available remedies of tribal courts (NFU Ins. Cos. v. Crow Tribe”).This court case is basically saying that if any person wanted to surpass any tribal courts, then the tribe itself must research the laws and policies and must carefully examine their own sovereignty before proceeding to control their jurisdiction within their own lands.This, again, shows the pattern of the the lack of respect towards tribal courts to enforce proper law or allow them their own rules when pursuing matters concerning their lands.

More recent Supreme Court cases have leaned the other direction and have attempted to bring more sovereignty back to the tribes.Inyo County v. Paiute-Shoshone Indians, which took place in 2003, held that “tribal sovereignty may override the search and seizure powers of the state” (“Inyo County v. Paiute-Shoshone Indians”).This decision was a small step forward among a series of backwards momentum towards tribal sovereignty and rights. Although not a court case, the most recent progressive action for tribes was the passing of the Tribal Law and Order Act of 2010 which broadened the scope in which tribal courts could punish people (“Tribe Passes Enhanced Sentencing Law” par 3). It attempts to increase emphasis on prevention of violence towards indigenous people, specifically Native women, and allocates more authority to punishing and convicting those that commit these act (The United States Department of Justice).This is an issue that really needs addressing, as Native Americans are 2.5 times as likely to experience violent crimes, and at least 2 times more likely to experience rape or sexual assault crimes, compared to all other races according to a study conducted by NCAI Policy Research Center in 2013(2). While its purpose had good intention, there is more work to be done in addressing tribal jurisdictions as current laws set in place like these are clearly not working, and prove to be too limited, as seen through the unshrinking statistics of violence towards Native women and loopholes found in court for punishing perpetrators.

WHO DECIDES WHAT, AND WHEN: 

As defined by American settlement history and in the various Supreme Court case examples, federal law applies to all, even those in Indian country who are considered “independent”.While technically, as detailed in the Constitution, the federal government and those of tribes are two separate sovereignties, those living in American Indian lands are still citizens of the United States and share those liberties as well as following most federally mandated laws.Each situation which requires law is individualized and because of the different laws within tribes, whether the defendant was Indigenousvs. non-indigenous, whether it took place on Native territory and the tricky relationship with the federal government, there is much intricate detail about who controls what and when.This can raise issue as because of this, much of the terminology of the law can be interpreted with bias, or manipulated to benefit one party instead treating law with focus of equality and fairness being of most importance. To give a sort of generalized description of most law, federal or state government has little jurisdiction in matters of civil jurisdiction, and in civil cases involving divorce, probate, adoption, or child custody the federal government has absolutely no jurisdiction if it concerns Native Americans on Native properties. While in cases of criminal jurisdiction, there are federal statutes that apply to everyone living in any part of the nation, such as treason (Indian Affairs, U.S. Department of the Interior). Because of the declaration of self-determination as the official policy of the federal government on Native American affairs, tribes are expected to have full range of sovereignty. But federal government will always have the capabilities to limit this sovereignty, and always have final say, and often times unnecessarily limites this sovereignty.

Because tribes are indicated in the Constitution as separate entities, in Article 1 Section 8 specifically,states should have no jurisdiction over Native matters. But, because of states want to control all matters within their lands, there has been many issues between tribe and state relations, especially with matters such as fishing and hunting.The only real jurisdiction that states have over tribes is civil cases on their lands that involve non-Natives committing an act of crime (Canby).

            Essentially the main idea is that tribal courts generally have civil jurisdiction over matters of crimes committed against Native Americans on Native lands, and of Native v. Native criminal disputes, unless there is a breach of a federally mandated statute (Indian Affairs, U.S. Department of the Interior).This includes any small or victimless crimes, tribal disputes, and any minor crimes by Indigenous peopleagainst non-indigenousare given some jurisdiction by tribal court (“Tribal Sovereignty in the United States” par 10). While each tribe has different mandates and laws, each law and elected official must be approved through secretarial review, which is contradictory to the self-determination ideologies of federal government.

In theory, these policies and regulations are somewhat logical, but the sovereignty of these tribal nations relies on the nation acknowledging and honoring the acts and treaties they guaranteed in the first place.Unfortunately, it has become increasingly common for states to assert unwarranted control on these tribal nations, and for the American government to disregard agreements made with tribes as outlined in the upcoming section.  

WHY THIS DOESN’T WORK/PERSONAL OPINION:

Assuming that all Native treaties are respected, and everything is followed according to proper law, because of the web of different and complicated rules, the law enforcement in Native country is often times not uniform or efficient. Often federal and state prosecutors are miles from their appointed reservation, and because of this, major inconveniences are created for natives who have to travel hundreds of miles in order to defend themselves in court. For example, as outlined in the University of Kansas law review of 1974, some portions of the Navajo Indian Reservation in Arizona are over 400 miles from the US attorney’s office, while, “some state courts are over 200 miles from Indian territory within their jurisdiction for purposes of trying offenses” (Vollmann 387).Natives may not receive all of the same benefits a non-indigenous defendant or prosecutor would face. The Indian Civil Rights Act guarantees some protections to prevent this, but only outlines that only some protections of the Bill of Rights apply to a “tribal tribunal” (Vollmann 989). For instance, if a Native could not afford a lawyer, they are not guaranteed one by the state or national government and would have to defend themselves (Due Process in Indian Country par 11).Thus, Native Americans are forced to uphold a state mandated or federally mandated law, and defend themselves as a general citizen, but are not provided the same opportunities and privileges any other citizen would be guaranteed.Not only do laws when followed end up causing distress to many Natives, but often time they are just blatantly ignored.

Tuning more into the reality of tribal jurisdictions, often times these rules and regulations set in place by court cases, treaties, and Acts are completely disregarded. One example of this is the recent ruling in Texas in regard to the Indian Child Welfare Act. This welfare act ensures native children to remain in custody of the family, tribe or in the care of another Native American when adopted (Flynn par 1). This act stems from the 1970s, when Native American children were being forcibly removed from their tribes and families and gentrified through their childhood and was established to protect tribal rights and jurisdiction over their children (Platoff par 5). In October of last year, a Texas judge ruled this federal law unconstitutional, and appointed custody to a non-native custody, which directly violates this federally enforced law.This is a prime example of the lack of tribal respect shown by the state government towards tribal independence and suffering, as all documents and agreements between tribes and the US government state that this court decision is unlawful, and no state jurisdiction should be present. If laws are set in place but not followed or enforced, then what is the point of having these laws at all?

Another example of US government blatantly disregarding federal laws is with the NAGPRA, Native American Grave Protection and Repatriation Act, and federally funded museums and universities. This Act specifies that any kinds of Indigenous cultural artifacts in museums must be returned to its specified tribe, including “human remains, funerary objects, sacred objects, and objects of cultural patrimony” (National Museum of the American Indian par. 1).  A theology school in Massachusetts is faced backlash by refusing to return a halibut fishhook carved to look like a wolf, along with 158 other Native objects, back to the Tlingit tribe of Alaska (Thorton par 3). This issue is all too common, as museums like the American History museum and even the Smithsonian have been caught attempting to keep known tribal artifacts and remains.Not only does this infringe upon NAGPRA, but also on Native rights to freedom of religion, as many Native Americans hold these objects, and especially ancestral remains, as irreplaceable and key to religious practices. Russel Thornton, a Cherokee-American anthropologist describes the relationship as, “the sacred object is the religion, and the religion is the sacred object” (Thorton par 9). Repatriations to restore artifacts to tribes is another law that should occur, and have good theoretical intentions, but just gets ignored for the betterment of those already privileged. Because of the historical societal views of Native life, any laws that promote any jurisdiction to indigenous people is overstepped, backfires, or is just blatantly ignored.

RELATION TO LSJ

            These issues of tribal jurisdictions as seen through history, and in present day cases is a result of implicit bias, excessive paternalism and ethnocentrism.Since the founding of the American colonies, Native Americans have faced abject racism that has embedded itself into federally dictated laws, perceptions, and court cases. In the book, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided,Echo-Hawk hypothesizes the origin of said biases. He states that, “Genocide researchers observe that Indigenous peoples are often blamed for their own destruction.” Some ‘scholars’ believe that the mass genocide that occurred, was not because of white invasion, but of natural deaths invoked by diseases or that American colonization onto American Indian land was justified and inevitable. This victim-blaming thought process, whether explicitly or implicitly expressed, is unfortunately very commonly portrayed through attitudes of those in governmental power and is, in turn, put into federal law. Doctrines set into place by these same people are, “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need” (qtd. in Echo-Hawk 423).These issues prove to be relevant to LSJ 200, as implicit bias and polarization is a common theme within US law. Through this research process it became prevalent to me, that issue of biases the resulting unfair treatments, is an issue faced by all minorities in America in different ways and needs to be addressed and acknowledged through strengthening of current law and creation of more progressive and individualized laws.

NOTE ON VOCABULARY:

Often times in law those of Native American descent are referred to as Indian, or native. For reference those from Native American culture should be properly addressed as indigenous people, capitalized Native, as the term nativeis representing a group of people, or simply Native American. 

FURTHER INFORMATION:

2018-19 Term relevant Supreme Court Cases related to Indian Law

Further Readings about proposed law reformwithin Tribal jurisdictions and tribal rights

Updates by Tribal Justice and Safety within the Department of Justicein regards to tribal rights

Indigenous Activists to follow on Twitter:

Kim Tallbear

Ruth H. Hopkins

Dr. Adrienne Kenne

CITATIONS:

  1. “General Guide to Criminal Jurisdiction in Indian Country.” Justice Systems of Indian Nations, Clearing House: A Project of The Tribal Law and Policy Institute, http://www.tribal-institute.org/lists/jurisdiction.htm.
  • Clinton, Robert N. “The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs,” Boston University Law Review vol. 69, no. 2 (March 1989): p. 329-388. HeinOnline,https://heinonline.org/HOL/P?h=hein.journals/bulr69&i=337.
  • Mintz, S. “Native American Voices.” Digital History, 7 June 2007, web.archive.org/web/20070607232808/http:/www.digitalhistory.uh.edu/native_voices/voices_display.cfm?id=39.
  1. “Washington LawHelp.” Due Process in Indian Country, Northwest Justice Project, 4 Oct. 2018, www.washingtonlawhelp.org/resource/due-process-in-indian-country.
  1. “Criminal Resource Manual 682.” The United States Department of Justice, 19 Sept. 2018, http://www.justice.gov/jm/criminal-resource-manual.
  1. “NFU Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985).” Justia Law, supreme.justia.com/cases/federal/us/471/845/.
  1. “Inyo County v. Paiute-Shoshone Indians.” Oyez, 31 Jan. 2019, http://www.oyez.org/cases/2002/02-281.
  1. “Tribe Passes Enhanced Sentencing Law.” Cherokee One Feather, Eastern Ban of Cherokee, 23 Aug. 2012, www.webcitation.org/6FmBkL7iB.
  1. “Frequently Asked Questions.” Indian Affairs, U.S. Department of the Interior, www.bia.gov/frequently-asked-questions.
  1. Canby, William C. American Indian Law in a Nutshell. West Pub. Co., 1981.
  1. “Tribal Sovereignty in the United States.” Wikipedia, Wikimedia Foundation, 27 Jan. 2019, en.wikipedia.org/wiki/Tribal_sovereignty_in_the_United_States#cite_note-29.
  1. Indianz. “BIA Encourages Tribes to Assert More Control over Internal Affairs.” Indianz, Indianz, 19 Oct. 2015, www.indianz.com/News/2015/10/19/bia-encourages-tribes-to-asser.asp.
  1. Barker, Joanne (Lenape). 2005. “For Whom Sovereignty Matters” in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination. Lincoln: University of Nebraska Press. Pp: 1-31. (PDF)
  • “Repatriation.” Infinity of Nations: Art and History in the Collections of the National Museum of the American Indian – George Gustav Heye Center, New York, National Museum of the American Indian, americanindian.si.edu/explore/collections/repatriation/.
  • Echo-Hawk, Walter R. In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. 1st version, 1st ed., Fulcrum Publishing, 2012, ProQuest: Ebook Central, ebookcentral.proquest.com/lib/washington/detail.action?docID=547517. 
  • Williams, Robert A. Like a Loaded Weapon: the Rehnquist Court, Indian Rights, and the Legal History of Racism in America. University of Minnesota Press, 2006, books.google.com/books/about/Like_a_Loaded_Weapon.html?id=FvsHUSrM4WQC&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false.
  • “Statutes at Large.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875, Charles Magnus, memory.loc.gov/ammem/amlaw/lwsl.html.