The roots of indigenous governance are largely under-appreciated in teachings of the U.S. legal system, and thus marginalized from the basic understanding of many state and federal legal practitioners. But these roots are as basic as our democracy itself. Afterall, it was the Haudenosaunee Confederacy which established the Great Law of Peace in 1142. It was this democratic system that the founding fathers used for the framework of the U.S. Constitution. Our bicameral system recognized these indigenous roots under Senate Concurrent Resolution 76 (S.Con.Res.76) and House Concurrent Resolution 331 (H.Con.Res.331) in 1987. While most of our legal teachings dedicate scholarship in courts of old England, absent are meaningful discussions on indigenous governance and indigenous democracy within our founding framework.

Thus, this article is framed to present the most basic understanding of one fragment of law within the microcosm of indigenous jurisprudence: tribal criminal law and jurisdiction. And although the dive includes a largely hegemonic and patriarchal legal interpretation in the early years of our U.S. history, it does begin to shift as our democracy ages in its own wisdom.

In Worcester v. Georgia, 31 U.S. 515 (1832) the Supreme Court held that state law “can have no force” in Indian territory. The following year in Ex Parte Crow Dog 109 U.S. 556 (1883), the Supreme Court ruled that the federal government did not have jurisdiction over Indian-on-Indian crimes in Indian country when the tribal government prosecuted the defendant in accordance with tribal law. This set the stage for state and federal criminal law jurisdiction in constitutional interpretation: there was none. The case concerned a murder charge, and the sentence was what we may call a form of restitution to the victim’s family, when at the time state and federal sentences were death penalties. Interestingly, it also reveals that concepts of restorative justice are anything but new within our legal systems, should we choose the inclusive perspective of tribal governance.

Congress did not like the court’s interpretation on the limits of federal power over tribal government, and quickly passed the Major Crimes Act, which granted federal jurisdiction powers of felony level crimes in Indian country, including murder, rape, assault of a minor under 16, and kidnapping. United States v. Kagama, 118 U.S. 375 (1886) became the test pilot on whether the Supreme Court would uphold the novel idea that congress had plenary power to regulate tribal criminal jurisdiction and hence give force to the Major Crimes Act. The court did. From this, the legal interpretation stemmed from congressional ability under the Indian Commerce clause “[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .” (U.S. Const. art. I, § 8, cl. 3.).

In the 1950s, the federal government decided it was overly burdensome to investigate, charge, try, and convict felony cases arising in Indian territories and passed what’s commonly known as PL-280 (Public Law 83-280 (67 Stat. 588)). This congressional mandate ceded its federal jurisdiction over Indian crimes to particular states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) and granted some other states an option to join. However, there were tribal nations (colonies, rancherias, communities, or otherwise) that had treaty agreements with the United States prior to state recognition. Thus, the grounded analysis in Kagama of treaty agreement for the US federal government to have criminal jurisdiction over a particular tribe did not always flow onto states.  This goes into some contract law principles the average legal practitioner would be familiar with– basically a party to an agreement (the tribal nation) could have no foreseeable way of knowing a nonexistent state would somehow be ceded federal powers over that tribe’s jurisdiction in the future. Thus, there was no sound interpretation for which PL-280 could be grounded. These tribes are Red Lake Nation (Minnesota), and Warm Springs (Oregon). As such, federal criminal jurisdiction and tribal criminal jurisdiction remain. Minnesota nor Oregon have jurisdiction to bring indictments, charges, prosecution, or sentencing for matters arising under Warm Springs or Red Lake jurisdictions. We also see this reasoning reaffirmed in McGirt v. Oklahoma, 591 U.S. ___ (2020).

More tribal nations have successfully argued their exceptions as well. Oregon is currently working to either cede its PL-280 criminal jurisdiction to tribes or relinquish this back to the federal government in piecemeal. Some non-mandatory states have ceded this authority back to the federal government (Nevada). Thus, there are instances where federal courts and tribal courts have jurisdiction over crimes committed in Indian territory, and others where this concurrent jurisdiction resides in state and tribal court systems.

Next, it is important to understand coverage of felonious crimes borne from the Major Crimes Act. The Major Crimes Act granted the federal judicial branch with exclusive jurisdiction over those six high crimes. This also explains why there has been more development of misdemeanor criminal laws in tribal nations—because those six high crimes are exclusive jurisdiction of the federal government, and concurrent jurisdiction in misdemeanor crimes. For example, say an Indian shoots and kills another Indian inside a residential dwelling within a band’s territory. This person may face felony murder charges in federal court and related misdemeanor charges such as discharging a gun in a tribal court. The tribal police and Federal Bureau of Investigation would have jurisdiction for investigation; tribal and federal prosecutors would have jurisdiction to bring charges in their respective courts. If a PL-280 state, the state police would have authority to investigate the crime as well as tribal police. The state prosecutor and tribal prosecutor would have authority to bring those charges in their respective courts (felony in state, misdemeanor in tribal).

As one can imagine, this framework has been an immense strain on tribal criminal justice systems and a tribe’s ability to self-govern felonious crimes in Indian country. We see high levels of missing and murdered indigenous women, sophisticated drug trafficking earmarking tribal nations, and more.  The Tribal Law and Order Act is a band aid style fix to the bounds of criminal justice in tribal judicial branches. The Act recognizes tribes’ inherent authority to govern when certain conditions are met. Because Congress has only plenary power over interstate commerce of Indians, the framework for congressional acts on tribal governance is inherently different than those for states. Rather than empowering tribes with authority (which it cannot do as tribes have governed longer than the United States and have their own separate Constitutional instruments and sovereignty) it merely recognizes tribal authority of felonious level crimes when certain conditions are met. In this way, tribal nations have their own volition on whether or not to create and codify laws that would comport with the TLOA so that their enhanced sentences are recognized if appealed through federal circuits. This instrument provides for enhanced sentences (3 charges with 3 year sentences which may run consecutively at a maximum of 9 years). It also requires that tribal defense attorneys meet minimum requirements, as well as judges; that court records be maintained; that defendants have access to appeal; minimum standards for valid search warrants; and more baseline rights. (The Tribal Law and Order Act is an amendment to the Indian Civil Rights Act).

The Supreme Court upheld the validity of Indian Civil Rights Act and its congressional plenary power hook under its language recognizing inherent tribal authority in United States v. Lara, 541 U.S. 193 (2004) (congress has the authority to recognize tribal inherent authority of criminal jurisdiction for nonmember Indians).

As these instruments are relatively new (the Tribal Law and Order Act was passed in 2010)—but continue to function as band aid fixes. This is because the framework of territorial jurisdiction, subject matter jurisdiction and personal jurisdiction over crimes committed in Indian country have had exceptions. The Supreme Court of the United States continued to affirm that tribal nations (and by extension tribal courts) did not have personal jurisdiction over non-Indians for crimes committed against Indians within the tribe’s territory. (Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). So while we have a framework where Indians can be tried for crimes against Indians, non-Indians continue to escape justice in the community where the crimes are perpetuated with low prosecution rates for non-Indians for crimes committed against Indians.

The premise of Oliphant goes back to when Indian criminal courts were not permitted to try U.S. citizens in tribal court, and the framework was to deliver non-Indian “bad men” to the state or federal authorities for investigation of crimes. The way I conceptualize this is to think of it as a form of “diplomatic immunity” during the first century of our country. The non-Indian U.S. citizen would face charges in their state or federal court system. This was, of course, a fixed system as Indians were excluded from testifying as witnesses in state courts under state law. As one can imagine, it would be highly unlikely that there would be enough evidence without Indian witness testimony necessary to successfully prosecute for a crime against Indian victims.

There is precedent limiting Oliphant to U.S. citizens under tribal law, which is best illustrated in Eastern Band of Cherokee Indians v. Arnulfo Torre, CR 03-143 (April 15, 2005). Though tribal precedent in one tribal nation as not binding on other tribal nations, and each tribal nation’s court system would follow its legal analysis under its relevant treaty and rationale). Though, because the rationale is to deliver “bad men” tribal police may still detain and search suspects and deliver them state or federal officers. (See United States v. Cooley, 593 U.S. ___ (2021) Tribal police officers have the authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law).

Because people do not operate within these abstract silos where people do not mix with other people, this framework continues to exacerbate crimes in Indian country. Many tribal members marry non-tribal members and continue to live within Indian territory. The legal framework which allowed non-Indians to escape criminal prosecution in Indian country continued to exacerbate missing and murdered indigenous women. Tribal governments have tried to work within a larger scope of civil jurisdiction to address and govern tribal social welfare with methods such as exile from tribal lands. But by and large non-Indians committing crimes against Indian victims continued to make tribal land some of the most dangerous places for tribal women.

The band aid fix for this is the Violence Against Women Act, passed in 1994. There, congress recognizes tribes’ inherent authority to charge, try and convict non-Indians for domestic violence related crimes. But this only fills in one gap—leaving out many more problems such as non-Indians abuse of their Indian children, drug trafficking, burglary, robbery, manslaughter, and other common crimes. Not Invisible Act of 2019 and Savanna’s Act of 2020 close some administrative and investigative gaps between federal, tribal, and state for crimes.

Non-Indian drug trafficking and possession has become one of the greatest strains of tribal governments’ ability to govern social welfare of tribal members. Oliphant’s 1978 holding that tribal courts do not have inherent criminal jurisdiction over non-Indians remains where congress has not explicitly recognized tribe’s inherent authority. One solution some tribes have implemented is tribal-state or tribal-federal cross deputization so that the tribal police officers have the requisite powers to investigate state crimes, which provides more authorization than the basic initial blanket authority of Cooley. In addition, tribal governments have ongoing contracts with tribal jails, as well as state and federal prisons for incarceration. But, these are by and large workarounds to Oliphant limitations for tribal courts to convict drug-related non-Indian crimes.

Congress continues to demonstrate a momentum and trajectory to recognize tribe’s inherent authority to investigate, charge, and convict crimes committed by non-Indians. Though coverage continues to be recognized in piecemeal, complicating the analysis for both tribal and state legal practitioners. Congressional passages of “band aid fixes” continues to chip away at the Oliphant framework. We see no signs of congress regressing in this pattern. But for now, it remains a relevant factor complicating tribal adjudication powers over non-Indians.

Next, as this article is aimed for state licensed legal practitioners, you may be wondering: if tribes have more developed laws governing misdemeanor crimes, can the federal (or, where ceded, state) also bring felonious charges arising from the same conduct? That answer is yes. We get that answer in United States v. Wheeler, 435 U.S. 313 (1978). Hence, why my aforementioned example of felonious charges in one jurisdiction and misdemeanor charges in another. This example survives constitutional analysis without frustrating double jeopardy. We also see this issue revisited in Lara, where, again, semantics matter. There the court has a similar holding: because the ICRA itself recognizes certain inherent powers of tribes, it is not a federal power ceded to tribes, thus it does not violate double jeopardy.

These are some of the basic principles and topics surrounding Pl-280, concurrent criminal jurisdiction, and more broadly tribal criminal law. It also is worth mentioning that many tribal nations also use civil penalties in addition with criminal codes in their criminal justice systems for non-Indians, such as exile, property forfeiture (this must be minor), and fines. I’ve seen exile related to child abuse cases, for example a non-Indian (married to an Indian living on a reservation with their tribal member children) may be exiled after multiple allegations and findings of child abuse.

Some tribes also have systems for non-Indians to waive personal jurisdiction, (though none which overlap with Nevada jurisdiction). For example, a non-Indian may prefer waiving personal jurisdiction for a drunk and disorderly charge for activity at an Indian casino they frequent on the weekends rather than be exiled in a civil proceeding. There are ethical dilemmas both in lawyering (defending your clients’ rights) and criminal procedure, but these things do develop. It’s also important to remember the time frame in which congress would recognize a tribal government’s power over enhanced sentencing—only since 2010. It’s an important notation if you do go back and read tribal criminal cases—as there are some truly grave cases—  that enhanced sentencing was “baked out” of the criminal law framework long ago, and only relatively recently added back in.

Last, it’s important to get a grasp on the Indian Civil Rights Act if you do see a career in tribal public defense or similar. When practicing in tribal jurisdictions it’s going to change how you posit your legal arguments. A tribal member’s civil rights aren’t governed by the U.S. Constitution – it’s governed by the Tribe’s Constitution and the ICRA. So, for example, you wouldn’t make a legal claim about jury violations under the sixth amendment when your client is a tribal member in tribal court. The governing instrument would be that Tribe’s Constitution, and the ICRA. This case would be appealed to the highest court of the Tribal Nation, then next you have an option of appealing to whatever the U.S. court of appeals is in your region or the D.C. circuit under the ICRA.

In conclusion, the importance of understanding and differentiating between tribal, state, and federal jurisdiction continues to be paramount for state practitioners who should screen and appreciate that defendant or complaining witness’s Indian status may affect criminal jurisdiction and legal stratagem. Screening clients for Indian status is probably the easiest and most basic step for state practitioners and should be part of early information gathering process. Recognize when you probably just don’t know what you don’t know and seek conference with a tribal attorney. Especially if your practice area intersects with criminal law, such as domestic violence in family law, including tribal attorneys within your network is valuable.

Sarah Collins is a tribal attorney in Paiute Shoshone courts across the Mohave and Great Basin. She earned her J.D. from Mitchell Hamline School of Law, and LL.M. in Indigenous Peoples’ Law and Policy from the University of Arizona. She is an affiliated professor of law at Mitchell Hamline School of Law, teaching criminal law and contracts, and CLE Subcommittee Co-Chair of the Nevada Bar’s Tribal Law Section.