Indian Country Jurisdiction and the Assimilative Crimes Act
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Recent federal policy toward Indian tribes is closely aligned with what Indians want for themselves—self-determination. But the maze of tribal, state, and federal jurisdiction in Indian country creates a great obstacle to self-government and economic self-sufficiency. Many commentators have discussed the United States’ Rube Goldberg approach to jurisdiction, wherein the simple is made complex. A recent Supreme Court case and a federal district court’s reliance upon it may have added yet another twist to the approach to jurisdiction. Both cases involve the revenue-generating enterprise that has achieved nearly across-the-board success in Indian country, but which has generated the greatest wrath toward Indians from the non-Indian community since Custer’s Last Stand: gambling. These cases also involve the imposition of non-tribal laws, especially state, in Indian country.
In California v. Cabazon Band of Mission Indians, the United States Supreme Court reaffirmed tribal sovereignty, ruling that California’s bingo and card game laws are regulatory in nature and thus have no effect on reservations within the state. In contrast, the federal district court in Pueblo of Santa Ana v. Hodel infringed upon tribal sovereignty by ruling that New Mexico’s parimutuel wagering and dog racing laws are prohibitory in nature; therefore, the state could regulate gambling on reservations within New Mexico.
In 1953, Public Law 280 was enacted by Congress to give certain states greater power to control crime on Indian lands. The critical distinction between Cabazon and Santa Ana is that California is subject to Public Law 280 while New Mexico is not. Cabazon confirmed that states which assumed jurisdiction over Indian country under Public Law 280 may enact “prohibitory” laws to address crime, but in most cases may not extend the reach of state “regulatory” laws to reservations.
The Cabazon prohibitory/regulatory (pro/reg) test for the validity of state law extensions seems appropriate for Public Law 280 states like California. However, New Mexico has never been granted jurisdiction over Indian country within its borders. The troubling aspect of Santa Ana is that the district court relied on Cabazon to grant New Mexico jurisdiction on two distinct bases—the federal Assimilative Crimes Act (ACA) and state public policy—to achieve essentially the same infringement on tribal sovereignty that Public Law 280 effected earlier. The danger to tribes of courts applying ACA and state public policy to Indian country is that non-Public Law 280 states could apply their criminal laws to reservations to fill in gaps in the federal criminal code, thereby permitting these states to outlaw gambling.
This Comment will examine closely the interplay between the analyses in Cabazon and Santa Ana and other lower court decisions addressing Indian sovereignty. This Comment contends that ACA and state public policy should not apply in Indian country, that the reasons courts have used to apply them are flawed, and that any perceived gap in criminal laws in Indian country is already filled by the Indian Crimes Acts. Assuming, arguendo, that ACA and the Organized Crime Control Act (OCCA) apply to Indian country, this Comment notes that neither of these Acts, nor the reasons for applying them, provide a sound basis to invoke the pro/reg distinction.
The Santa Ana court’s interpretation of Cabazon constitutes a new movement of judicial activism in the federal Indian law arena. It may resurrect the now-disfavored termination era policy underlying Public Law 280 and result in sweeping abrogations of tribal sovereignty. This trend contradicts the federal policy of tribal self-government, the canon of statutory construction that any abrogation of Indian rights must be done expressly by Congress, the intent of ACA, and the existing statutory framework which determines what laws apply in Indian country.
Ironically, Indians initially viewed Cabazon as a great victory. Upon closer inspection, however, Cabazon may have provided the impetus the Santa Ana court needed to apply ACA to Indian country. Thus far, Cabazon and Santa Ana have been interpreted as authority for applying ACA in Indian country by Congress, law enforcement agencies, and even the Department of Interior, which is charged with administering the United States’ trust responsibility to the tribes. Typifying this new construction is a letter from a United States Attorney to an Indian tribe, in which the federal official declared: “If the state law is prohibitory, the Assimilative Crimes Act will apply. If regulatory, it will not. The most recent case in point which has an excellent analysis is Pueblo of Santa Ana v. Hodel.Keywords:
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Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.
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This article addresses a significant challenge to federal Indian law currently emerging in the federal courts. In 2013, the Supreme Court suggested that the Indian Child Welfare Act may be unconstitutional, and litigation on that question is now pending in the Fifth Circuit. The theory underlying the attack is that the statute distinguishes between Indians and non-Indians and thus uses the suspect classification of race, triggering strict scrutiny under the equal-protection component of the Due Process Clause. If the challenge to the Indian Child Welfare Act succeeds, the entirety of federal Indian law, which makes hundreds or even thousands of distinctions based on Indian descent, may be unconstitutional. This article defends the constitutionality of federal Indian law with a novel argument grounded in existing Supreme Court case law. Specifically, this article shows that the congressional plenary power over Indians and Indian tribes, which the Supreme Court has recognized for nearly a century and a half and which inevitably requires Congress to make classifications involving Indians and Indian tribes, compels the application of a rational-basis standard of review to federal Indian law.
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Crime and violence have long been a serious problem in Indian Country. In recent years, though, the extraordinary levels of gang activity and high rates of sexual violence against Native American women have received a large amount of media attention. Responding to this problem, Congress passed the Tribal Law and Order Act of 2010. Through this legislation, Congress seeks to lower the rates of crime in Indian Country, particularly with regard to crimes committed against Native American women; the Act significantly increases the resources and authority of federal prosecutors and agencies in Indian Country and increases the sentencing authority of tribal courts. This Article considers the major provisions of this landmark Act and concludes that it is an important piece of legislation that could potentially have profound effects in many parts of Indian Country. Although the Act was widely supported, however, this Article argues it does not do enough and is instead only a short-term remedy to the problems facing Indian Country. The Article proposes several pieces of legislation that would provide long-term solutions, including increasing the sentencing authority of tribal courts and legislatively overturning the jurisdictional limitations imposed on tribal courts by the United States Supreme Court in Oliphant v. Suquamish Indian Tribe. Both of these major reforms could be used as tools to increase the status and skill of tribal courts, eventually making them a much more equal third sovereign.
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The federal criminal justice regime, which governs hundreds of federal Indian reservations across the United States, gives federal prosecutors, federal judges and federal juries the important responsibility of providing criminal justice for serious local crimes on Indian reservations and also for many less serious offenses. Because Indian country offenses are, by definition, local crimes with little national impact, this work is an unusual part of the federal docket. If public safety is any measure, these institutions are utterly failing. For a variety of reasons, including history and geography, federal prosecutors and investigators face numerous practical obstacles in performing their jobs in Indian country. Likewise, because federal grand juries and trial juries for Indian country cases tend to be constituted from the general population of a federal judicial district rather than from within the boundaries of the courts' Indian country jurisdiction, these juries fail to represent fair cross-sections of the Indian country community. Such juries cannot serve the community-representative functions envisioned by the Constitution. As a result, federal Indian country trials operate in a manner inconsistent with basic American norms of criminal justice, such as those set forth in the First and Sixth Amendments to the United States Constitution. And federal Indian country convictions therefore lack important hallmarks of legitimacy and raise serious constitutional concerns. According to this constitutional critique, the federal criminal justice system on Indian reservations should be reconceived to give life to existing federal constitutional norms or repealed in favor of an approach more consistent with constitutional values and modern federal policy.
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There are more than 570 federally recognized Tribal Nations in the United States and more than 330 tribal courts serving as the judicial branch of those nations. Yet, there is little mention of the existence of tribal courts in most mainstream civil procedure courses taught in the 200-plus law schools across the country. To gain any knowledge as to the existence of these courts, law students must take a course on federal Indian law, which is not available in most law schools. In fact, fewer than 20 law schools offer a series of courses forming an Indian law program. Thus, the invisibility of tribal courts is perpetuated through curriculum omission in mainstream civil procedure courses and rarely remedied through offering a stand-alone course on federal Indian law. Tribal Nations have existed from time immemorial with their own laws, dispute resolution systems, and governing structures. This lack of attention and suppression of information serves only to reinforce colonizing ideas of subsuming tribal governance into the forums set up by the United States.
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This Article canvasses the jurisdictional rules applicable in American Indian tribal territories — “Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed.The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.S. COMM. ON THE INTERIOR & INSULAR AFFAIRS, 94TH CONG., BACKGROUND REP. ON PUBLIC LAW 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The modern Indian self-determination policy is not advanced by adherence to termination era experiments like Public Law 280. The Article concludes that federal legislation should provide for a tribally-driven retrocession model and makes proposals to that end.
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I. INTRODUCTION As a gauge of the strength of the United States government's commitment to the development of a vital and vigorous tribal judicial system, the Supreme Court could hardly appear more positive and unwavering in the language of its decided cases. In Williams v. Lee,(1) the Court issued its first modern opinion stressing the importance of tribal courts as the desired mechanism for ensuring tribal self-determination.(2) That 1959 decision held that the Arizona state court system lacked subject matter jurisdiction(3) over a lawsuit brought by a non-Indian reservation trader to collect a debt allegedly owed him by the on-reservation Indian defendants.(4) Recognizing state court jurisdiction, the Court stressed, would undermine the authority of the tribal courts ... and hence would infringe on the right of the Indians to govern themselves.(5) Nearly three decades later, in Iowa Mutual Insurance Co. v. LaPlante,(6) Justice Marshall's opinion took the same pro-tribal court stance, emphasizing that [c]ivil jurisdiction over [the activities of non-Indians on reservation lands] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.(7) In the context of litigated disputes, of course, these sweeping affirmations have been translated into specific jurisdictional holdings. The Supreme Court, as the arbiter of conflicting assertions of state, tribal, and federal power to adjudicate a pending lawsuit, has issued a number of important opinions that have attempted to delineate the borders of each forum's adjudicatory powers.(8) Unfortunately, lower courts have interpreted the Court's decisions allocating adjudicatory jurisdiction over disputes involving Indians or occurring in Indian country(9) as establishing mechanical, identity-based rules of access.(10) Moreover, the Court has created different, and at times contradictory, lines of precedent depending on the competing forums involved: that is, one set of rules applies to determine the legitimacy of state court adjudication, while different considerations shape the contours of federal court jurisdiction.(11) To confuse matters more, the Court's staunch endorsement of tribal court adjudicatory power has been offset somewhat by its expansive definition of federal question jurisdiction in Indian country,(12) and by its increasingly restrictive statements about the scope of tribal governmental power over non-Indians.(13) In disputes over the bounds of state adjudicatory power, the Court has held that state courts cannot adjudicate on-reservation disputes involving either a non-Indian plaintiff and an Indian defendant(14) or an Indian plaintiff and Indian defendant;(15) in such situations only tribal court adjudication is permissible. If the plaintiff is a tribe or an individual Indian suing a non-Indian, however, Supreme Court cases suggest that state courts must adjudicate the controversy.(16) In lawsuits involving multiple parties and multifaceted contacts both on and off the reservation, the rules become less clear, and broad swaths of concurrent tribal and state court adjudicatory jurisdiction appear to be emerging.(17) In contrast to the rules developed for state court adjudication, the holdings of several recent cases have instructed federal courts to require that remedies in tribal courts be exhausted in seemingly all lawsuits involving Indians, on-reservation contacts, or a disputed tribal power.(18) This Article focuses on the rules developed for state and federal courts to determine the scope of their respective adjudicatory jurisdictional powers in lawsuits relating to Indian country.(19) After reviewing the major Supreme Court decisions in this area, this Article asserts that both the lower courts and the Supreme Court itself have converted erroneously those holdings into per se rules of judicial access that depend on nothing other than the identity of the litigants. …
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Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights.
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The thesis of this article is that by examining Federal Indian Law one better understands that the American constitutional project includes many instances in which is claimed by force and justified by necessity. Yet jurists sit in judgment, requiring an accounting even when they condone or license exercises of such power. Moreover, occasionally, judges object in the name of limited government powers, of obligations to recognize separately-constituted polities, and of individual rights to equality and liberty. Although lacking much by way of citation to constitutional text, Federal Indian Law represents an example of this genre of federal lawmaking, with its commitment to constitutionalism by judges schooled in the traditions of Marbury v. Madison. The need to bring Federal Indian Law to the fore of the elaboration of American legal doctrine has more urgency in the wake of 9/11, as several lawsuits now challenge the prosecutorial powers of the Executive Branch. Federal Indian Law like these war cases, are about whether unlimited authority can be founded in physical power. Decision making in both sets of cases requires elaboration from a Constitution with little direct text and a great deal of Court-based extrapolation. In both kinds of the government is asserting a right to and challengers plead, in the name of the Constitution, for constraint. One such example is United States v. Lara, in which federal prosecutors charged Billy Jo Lara with a criminal offense after the Spirit Lake Nation of North Dakota had done so and obtained a conviction. In Lara, the federal government relied on the dual sovereignty exception to double jeopardy, crafted in the 1920s by the Supreme Court to prevent state prosecutions from immunizing individuals from federal enforcement of Prohibition. The Lara prosecutors have argued that doctrine ought similarly to permit sequential tribal and federal prosecutions. One legal question is whether the federal prosecution is barred because the tribe's jurisdictional is derivative of (rather than separate from) the federal government. Another question is which branch of government - the Court or Congress - decides that issue. Under current doctrine, a further wrinkle is presented because a tribe's criminal jurisdiction reaches only Indians who are its members. That proposition stems from the 1978 Supreme Court decision of Oliphant v. Suquamish Indian Tribe, holding that tribal courts had criminal jurisdiction over Indians but not over non-Indians. In 1990, in Duro v. Reina, the Court further defined the jurisdictional line by concluding that tribal courts had jurisdiction only over their own members. Soon thereafter, Congress intervened by stating that it recognized and affirmed tribes' inherent power to exercise misdemeanor criminal jurisdiction over all Indians. How might these questions of tribal criminal jurisdiction and jurisdiction-by-identity be answered? From the perspective of those tribal communities that claim the status of foreign nations subjected to conquest and colonialization, neither the courts or Congress are legally competent to decide. From that vantage point, Federal Indian Law is an illegitimate exercise in with no source of authority other than physical might. But for those acknowledging the history of conquest yet believing that disentanglement of tribes from the United States is now implausible, the questions are ones to which legal actors in the United States need to respond. Here, I offer ways to reason, in light of constitutional aspirations embodied in Marbury, about the exercise of criminal jurisdiction by the tribes and its relationship to litigants' political affiliations and about federal courts' exercise of jurisdiction based on distrust of other court systems.
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