Tribal Criminal Jurisdiction over Non-Indians in S. 47 and H.R. 11, the Violence Against Women Reauthorization Act of 2013

Congressional research reportFeb 4, 2013

Ask Donna

What actually matters in this document.

Text

Tribal Criminal Jurisdiction over Non-Indians

in S. 47 and H.R. 11, the Violence Against

Women Reauthorization Act of 2013

-name redactedLegislative Attorney

February 4, 2013

Congressional Research Service

7-....

www.crs.gov

R42488

CRS Report for Congress

Prepared for Members and Committees of Congress

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Summary

Domestic and dating violence in Indian country are reportedly at epidemic proportions. However,

there is a practical jurisdictional issue when the violence involves a non-Indian perpetrator and an

Indian victim. Indian tribes only have criminal jurisdiction over crimes involving Indian

perpetrators and victims within their jurisdictions. Most states only have jurisdiction over crimes

involving a non-Indian perpetrator and a non-Indian victim within Indian country located in the

state. Although the federal government has jurisdiction over crime committed by non-Indians

against Indians in Indian country, offenses such as domestic and dating violence tend to be

prosecuted with less frequency than other crimes. This creates a practical jurisdictional problem.

S. 47 and H.R. 11, the Violence Against Women Reauthorization Act, would recognize and affirm

participating tribes’ inherent sovereign authority to exercise special domestic violence jurisdiction

over domestic violence involving non-Indian perpetrators and Indian victims occurring within the

tribe’s jurisdiction. It is not clear whether Congress has the authority to restore the tribes’ inherent

sovereignty over nonmembers, or whether such authority would have to be a delegation of federal

authority. The tribal jurisdiction provisions of S. 47 and H.R. 11 are nearly identical to the tribal

jurisdiction provisions of S. 1925, which passed the Senate in the 112th Congress.

In a series of cases, the Supreme Court outlined the contours of tribal criminal jurisdiction. In

United States v. Wheeler, the Court held that tribes have inherent sovereign authority to try their

own members. In Oliphant v. Suquamish Indian Tribe, the Court held the tribes had lost inherent

sovereignty to try non-Indians. The Court in Duro v. Reina determined that the tribes had also lost

the inherent authority to try nonmember Indians. In response to Duro, Congress passed an

amendment to the Indian Civil Rights Act that recognized the inherent tribal power (not federal

delegated power) to try nonmember Indians. S. 47 and H.R. 11 would apparently supersede the

Oliphant ruling and “recognize and affirm the inherent power” of the tribes to try non-Indians for

domestic violence offenses.

The Supreme Court stated in United States v. Lara that Congress has authority to relax the

restrictions on a tribe’s inherent sovereignty to allow it to exercise inherent authority to try

nonmember Indians. However, given changes on the Court, and, as Justice Thomas stated, the

“schizophrenic” nature of Indian policy and the confused state of Indian law, it is not clear that

today’s Supreme Court would hold that Congress has authority to expand the tribes’ inherent

sovereignty. It may be that Congress can only delegate federal power to the tribes to try nonIndians.

The dichotomy between delegated and inherent power of tribes has important constitutional

implications. If Congress is deemed to delegate its own power to the tribes to prosecute crimes,

all the protections accorded criminal defendants in the Bill of Rights will apply. If, on the other

hand, Congress is permitted to recognize the tribes’ inherent sovereignty, criminal defendants

would have to rely on statutory protections under the Indian Civil Rights Act or tribal law.

Although the protections found in these statutory and constitutional sources are similar, there are

several important distinctions between them.

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Contents

Introduction...................................................................................................................................... 1

Criminal Jurisdiction in Indian Country .......................................................................................... 2

Special Domestic Violence Criminal Jurisdiction Under VAWA Reauthorization .......................... 3

Limitations on the Tribes’ Special Domestic Violence Criminal Jurisdiction ........................... 3

Required Rights for Non-Indian Defendants ............................................................................. 4

Inherent Tribal Sovereignty Versus Delegated Federal Authority ................................................... 4

Implications of Delegated versus Inherent Tribal Sovereignty ................................................. 7

Double Jeopardy.................................................................................................................. 8

Right to Counsel ................................................................................................................ 10

Grand Jury Indictment ....................................................................................................... 12

Jury of One’s Peers............................................................................................................ 13

Limited Review by Federal Courts ................................................................................... 15

Conclusion ..................................................................................................................................... 16

Tables

Table 1. Chart of Criminal Jurisdiction in Indian Country by Parties and Subject Matter .............. 2

Contacts

Author Contact Information........................................................................................................... 16

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Introduction

American Indians in general are victims of violent crimes at a rate much higher than the general

population.1 This trend carries over to domestic violence: American Indian women are victims of

domestic and dating violence at more than twice the rate of non-Indian women.2 It is reported that

most of this violence involves an offender of a different race.3 This fact creates a jurisdictional

problem because tribal courts do not have criminal jurisdiction over crimes committed within the

tribe’s jurisdiction by non-Indians.4 States generally do not have jurisdiction over such crimes

either.5 Although such crimes are subject to federal jurisdiction, frequently overburdened federal

prosecutors are not able to prosecute them.6 Thus, it appears that American Indian women are left

with a higher risk of domestic violence and less protection than non-Indian women.

In the 112th Congress, the Senate passed S. 1925, which included proposed amendments to the

Violence Against Women Act (VAWA) aimed at remedying this practical jurisdictional void. S. 47

and H.R. 11, the Violence Against Women Reauthorization Act7 (VAWA Reauthorization) are

nearly identical to S. 1925 and have been introduced in the 113th Congress. Section IX of these

bills would, among other things, expand the inherent jurisdiction of tribal courts to include nonIndian-on-Indian crimes of domestic and dating violence committed within the tribes’

jurisdictions.

Opponents of the proposed amendments in S. 1925 were concerned that, under current law, tribal

courts are not required to provide the identical constitutional protections to criminal defendants as

state and federal courts.8 The VAWA Reauthorization would provide that courts exercising special

domestic violence criminal jurisdiction shall provide to defendants “all other rights whose

protection is necessary under the Constitution of the United States in order for Congress to

recognize and affirm the inherent power of the participating tribe to exercise criminal jurisdiction

over the defendant.”9 As discussed below, it is not clear what protections the tribes must provide

to exercise this power.

STEVEN W. PERRY, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, AMERICAN INDIANS AND CRIME, A BJS

STATISTICAL PROFILE, 1992-2002, at iv (2004) (hereinafter BJS Statistical Profile), available at http://bjs.ojp.usdoj.gov/

content/pub/pdf/aic02.pdf; Fact Sheet: Violence Against Women in Indian Country, National Congress of American

Indians 1, (hereinafter Fact Sheet), available at http://www.ncai.org/ncai/advocacy/hr/docs/dv-fact_sheet.pdf, citing

U.S. Department of Justice, Office of Justice Programs, Census of State and Local Law Enforcement Agencies, 2000–

Tribal Law Enforcement, 2000 (January 2003, NCH 197936).

BJS Statistical Profile, supra note 1, at v; Fact Sheet, supra note 1, at 1 (citing Violent Victimization and Race, 199398 NCJ176354), available at http://www.ojp.usdoj.gov/bjs/abstract/aic.htm. These statistics are for Indian women in

general and are not specific to areas subject to tribal jurisdiction. In fact, accurate data on violence against women in

Indian country are difficult to find because data about such violence are not systematically collected by Indian tribes

and there is a problem of victims underreporting such crimes. Fact Sheet at 1.

BJS Statistical Profile, supra note 1, at 9; Fact Sheet, supra note 1, at 2.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

United States v. John, 437 U.S. 634 (1978) (Major Crimes Act preempts state jurisdiction); Williams v. United States,

327 U.S. 711, 714 (1946) (federal jurisdiction over interracial crimes is exclusive of state jurisdiction).

S.Rept. 112-153, at 9 (2012).

S. 47, H.R. 11, 113th Cong. (1st Sess. 2013).

S.Rept. 112-153, at 48. See Required Rights for Non-Indian Defendants, infra p. 4.

S. 47, H.R. 11, §904 (§204(d)(4)).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Criminal Jurisdiction in Indian Country

Criminal jurisdiction in Indian country is complex. Indian country is defined by 18 U.S.C.

Section 1151 as Indian reservations, dependent Indian communities, and allotments. Depending

on the crime and the identities of the victim and the perpetrator, there can be exclusive tribal

jurisdiction, exclusive federal jurisdiction, concurrent tribal and federal jurisdiction, or exclusive

state jurisdiction. The following chart sets forth which governments have jurisdiction over crimes

in Indian country.10

Table 1. Chart of Criminal Jurisdiction in Indian Country

by Parties and Subject Matter

Crime by Parties

Jurisdiction

Statutory Authority

Crimes by Indians Against Indians

a) “Major” crimes

Federal or Tribal (concurrent)

b) Other crimes

Tribal (exclusive)

18 U.S.C. §1153

Crimes by Indians Against

Non-Indians

a) “Major” crimes

Federal or Tribal (concurrent)

18 U.S.C. §1153

b) Other crimes

Federal or Tribal (concurrent)

18 U.S.C. §1152

Crimes by Indians without Victims

Tribal (exclusive)

Crimes by Non-Indians Against

Indians

Federal (exclusive)

Crimes by Non-Indians Against

Non-Indians

State (exclusive)

Crimes by Non-Indians without

Victims

State (exclusive)

18 U.S.C. §1152

Source: Derived from U.S. ATTORNEY’S MANUAL, CRIMINAL RESOURCE MANUAL 689, available at

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00689.htm.

Note: This chart does not apply to Indian country over which the state has taken jurisdiction pursuant to P.L.

280, 18 U.S.C. §1162.

In cases of dating and domestic violence where the offender is non-Indian and the victim is

Indian, which appear to constitute the greatest percentage of domestic and dating violence

involving Indians,11 tribal and most state courts do not have jurisdiction. Federal jurisdiction is

exclusive, unless a state has criminal jurisdiction under P.L. 280. As a practical matter, there is a

jurisdictional void for domestic and dating violence between non-Indians and Indians because

federal prosecutors frequently cannot make such crimes a priority for prosecution on account of

the demands of their workload and the difficulty of investigating such crimes, which usually

P.L. 280 gave the following states criminal jurisdiction over all crimes in Indian country: California; Minnesota;

Nebraska; Oregon; Wisconsin; and Alaska. 18 U.S.C. §1162. Florida, Idaho, Montana, Nevada and Washington

assumed varied jurisdiction over Indian country in their states under Sections 6 and 7 of P.L. 280. Robert N. Clinton,

Development of Criminal Jurisdiction Over Indian Lands: The Historical Perspective, 17 ARIZ. L. REV. 951, 970 n.10

(1975).

Fact Sheet, supra note 1, at 1.

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

occur far away from federal investigators.12 Therefore, it is argued that domestic violence

between non-Indian perpetrators and Indian victims frequently goes unprosecuted and

unpunished, and the victims of such violence go unprotected.

Special Domestic Violence Criminal Jurisdiction

Under VAWA Reauthorization

To address the jurisdictional issue concerning domestic and dating violence involving nonIndians and Indians, the VAWA Reauthorization would give tribal courts jurisdiction over

domestic and dating violence between non-Indians and Indians that occur within the tribes’

jurisdiction, provided there are sufficient ties to the Indian tribes. Special domestic violence

criminal jurisdiction would be limited to “act[s] of domestic or dating violence that occur[] in the

Indian country of the participating tribe” and violations of protection orders.13 The VAWA

Reauthorization does not purport to delegate federal authority to the tribes. Rather, it would

declare that the tribes’ “powers of self-government ... include the inherent power of that tribe,

which is hereby recognized and affirmed, to exercise special domestic violence criminal

jurisdiction over all persons.”14

Limitations on the Tribes’ Special Domestic Violence

Criminal Jurisdiction

The Senate Report on S. 1925 explains that this special domestic violence criminal jurisdiction

would apply “in a very narrow set of cases over non-Indians who voluntarily and knowingly

established significant ties to the tribe.”15 In an effort to ensure that this is the case, the VAWA

Reauthorization, like S. 1925, provides that Indian tribes may not exercise special domestic

violence jurisdiction if both the victim and the defendant are non-Indians or the defendant lacks

sufficient ties to the Indian tribe.16 A tribe may exercise special domestic violence jurisdiction

only if the defendant lives in the Indian country of the tribe; is employed in the Indian country of

the tribe; or is a spouse or intimate partner of a member of the tribe or an Indian residing within

the tribe’s territory.17 Therefore, the tribes’ special domestic violence criminal jurisdiction would

be limited to domestic and dating violence occurring within a tribe’s jurisdiction by a non-Indian

against an Indian when the non-Indian lives or works in the tribe’s Indian country or the nonIndian is married to, or in an intimate relationship with, a tribal member or other Indian residing

within the tribe’s jurisdiction.

Fact Sheet, supra note 1 at 3; S. Rpt., supra note 6, at 9 (explaining that the distance of U.S. Attorneys from the

location of domestic violence in Indian country, coupled with a workload, that includes “addressing large-scale drug

trafficking, organized crime, and terrorism cases” results in non-Indian on Indian domestic and dating violent cases

going unprosecuted).

S. 47, H.R. 11, §906 (§204(c)).

S. 47, H.R. 11, §904 (§204(b)).

S.Rept. 112-153 at 10.

S. 47, H.R. 11, §904 (§204(b)(4)).

S. 47, H.R. 11, §904 (§204(b)(4)(B)).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Required Rights for Non-Indian Defendants

Additionally, the VAWA Reauthorization would purport to give tribes criminal jurisdiction over

domestic violence committed by non-Indians if the tribes provide to the defendant “all other

rights whose protection is necessary under the Constitution of the United States in order for

Congress to recognize and affirm the inherent power of the participating tribe to exercise special

domestic violence criminal jurisdiction over the defendant.”18 The meaning of this phrase is not

clear, but there are two plausible interpretations.

The Senate Committee on the Judiciary proposed in the VAWA Reauthorization Report that this

provision would require tribes to “to protect effectively the same Constitutional rights as

guaranteed in State court criminal proceedings.”19 Stepping back for a moment, as originally

conceived, the federal Bill of Rights did not apply against the states.20 It was not until passage of

the Fourteenth Amendment, and subsequent incorporation by the Supreme Court, that protections

in the Bill of Rights were applied against the states. To determine which rights should be

“incorporated,” the Court asks whether the right is “implicit in the concept of ordered liberty”21 or

required to ensure the “fundamental fairness essential to the very concept of justice.”22 Under

incorporation, all criminal procedure safeguards contained in the Bill of Rights have been applied

against the states except for the grand jury clause of the Fifth Amendment.23 It is plausible that

the above phrase from the VAWA Reauthorization was intended to encompass this same set of

rights. If so, Indian tribes would be required to guarantee all the rights contained in the Bill of

Rights except for a grand jury. This would mean the addition of several protections not currently

accorded all defendants in tribal court prosecutions.

Alternatively, this “recognize and affirm” provision may merely require tribes to provide those

protections that are currently available under the Indian Civil Rights Act and the Tribal Law and

Order Act. The Senate Report states that these statutes “protect individual liberties and constrain

the power of tribal governments in much the same ways that the Constitution limits the powers of

Federal and State governments.” This could mean that all the rights in these two statutes are

deemed sufficient to permit Congress to “recognize and affirm the inherent power” of the tribes to

exercise criminal jurisdiction over non-Indians. As discussed below, this could hinder several

protections accorded under the U.S. Constitution as applied against the states.

Inherent Tribal Sovereignty Versus Delegated

Federal Authority

As mentioned above, the VAWA Reauthorization would extend the tribes’ inherent sovereignty to

include criminal jurisdiction over non-Indians committing domestic or dating violence against

Indians. “The powers of Indian tribes are, in general, inherent powers of a limited sovereignty

S. 47, H.R. 11, §904.

S.Rept. 112-153, at 10 (2012).

Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

Palko v. Connecticut, 302 U.S. 319, 325 (1937).

Lisenba v. California, 314 U.S. 219, 235 (1941).

McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 n.13 (2010).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

which has never been extinguished. Before the coming of the Europeans, the tribes were selfgoverning sovereign political communities.”24 The Supreme Court has recognized that “[a] basic

attribute of full territorial sovereignty is the power to enforce laws against all who come within

the sovereign’s territory.”25 Although tribes once enjoyed full sovereignty, since their

incorporation into the United States, aspects of their full sovereignty have been restricted or lost,

including the authority to punish non-Indians.26

The Supreme Court has stated, however, that Congress has authority to relax restrictions on the

tribes’ inherent sovereignty. For example, in Duro v. Reina, the Supreme Court held that Indian

tribes had lost the inherent authority to try nonmember Indians.27 The Court wrote that

prosecution of a nonmember Indian was “inconsistent with the Tribe’s dependent status and could

only have come to the Tribe by delegation from Congress, subject to the constraints of the

Constitution.”28 Congress passed an amendment to the Indian Civil Rights Act to provide tribes

with jurisdiction to try nonmember Indians. However, rather than delegating federal authority to

the tribes, as the Supreme Court suggested, Congress “recognize[d] and affirm[ed] in each tribe

the inherent tribal power (not delegated federal power) to prosecute nonmember Indians.”29 In

United States v. Lara, the Court considered whether a nonmember Indian defendant who was tried

and convicted in tribal court could be tried for the same conduct in federal court or whether the

double jeopardy clause prohibited the federal prosecution.30 Based on the language of the statute

and its legislative history, which indicated congressional intent to affirm and acknowledge the

tribes’ inherent authority, the Court concluded the tribal court exercised its own non-federal

authority in trying the defendant.31 Because the tribe and the federal government were exercising

different authorities in prosecuting the defendant, the double jeopardy clause did not apply.32 The

majority also wrote broadly that the Constitution authorized Congress to relax the restrictions on

the tribes’ inherent authority to allow tribes to try nonmember Indians.33

The VAWA Reauthorization would purport to exercise this congressional authority and expand the

inherent sovereign authority of tribes to include the authority to try defendants involved in nonIndian on Indian domestic and dating violence. It is unclear whether the Supreme Court would

find that Congress has this authority.

In Oliphant v. Suquamish Indian Tribe, the Supreme Court implicitly recognized that prior to

“submitting to the overriding sovereignty of the United States” Indian tribes possessed the power

to try non-Indians.34 The power to try non-Indians, therefore, is an aspect of inherent sovereignty

which the tribes lost, like the power to try nonmember Indians. In Lara, the majority opinion

United States v. Wheeler, 435 U.S. 313, 322 (1978) (internal quotation marks and citations omitted).

Duro v. Reina, 495 U.S. 676, 685 (1990).

Oliphant, 435 U.S. 191, 210 (“By submitting to the overriding sovereignty of the United States, Indian tribes

therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable

to Congress.”).

Duro, 495 U.S. at 679.

Id. at 686.

United States v. Lara, 541 U.S. 193, 199 (2004) (internal quotation marks omitted).

Id. at 196.

Id. at 199.

Id. at 210.

Id.

Oliphant, 435 U.S. at 210.

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

concluded that the Constitution authorized Congress to relax the restrictions on tribes’ inherent

authority to try nonmember Indians.35 It could be argued that because nonmember Indians and

non-Indians are both outsiders to the tribe, there appears to be no reason to distinguish Congress’s

authority to relax restrictions on the tribes’ inherent sovereignty to try nonmember Indians from

its authority to relax restrictions on the tribes’ authority to try non-Indians. In other words, if the

tribe can exercise inherent authority over nonmember Indians, it appears it would be able to

exercise inherent authority over non-Indians. However, it is not clear whether the Court would

adopt that reasoning.

In his concurrence in Lara, Justice Kennedy took issue with the majority’s statement that the

Constitution authorized Congress to relax the restrictions on the tribes’ inherent authority and

subject nonmembers to inherent tribal criminal authority.36 He questioned whether Congress has

authority to subject citizens to a sovereign outside the structure of the Constitution.37 The

Constitution is premised on consent of the governed, he wrote.38 The Constitution established a

system of two sovereigns—the nation and the state—to which the citizen owes duties and against

which the citizen has rights.39 Justice Kennedy wrote that by amending the Indian Civil Rights

Act to extend inherent tribal criminal jurisdiction over nonmember Indians, “the National

Government seeks to subject a citizen to the criminal jurisdiction of a third entity to be tried for

conduct occurring wholly within the territorial borders of the Nation and one of the States. This is

unprecedented. There is a historical exception for Indian tribes, but only to the limited extent that

a member of a tribe consents to be subjected to the jurisdiction of his own tribe.”40 Justice

Kennedy, therefore, seems to believe that Congress may not have authority to subject nonmember

citizens to the criminal jurisdiction of tribes, extra-constitutional sovereigns, to which they have

not consented.

Further, the Supreme Court considered the issue of tribal court civil jurisdiction over

nonmembers in a case that, although it did not concern criminal jurisdiction, may be informative

with regard to jurisdiction generally in tribal courts. In Plains Commerce Bank v. Long Family

Land and Cattle Co.,41 decided four years after Lara, the majority held that the tribal court did not

have civil jurisdiction over a non-Indian bank that had allegedly discriminated against a tribal

member in connection with the sale of a parcel of non-Indian land on the reservation. The

majority opinion, which cites Justice Kennedy’s concurrence, notes that an exercise of tribal court

jurisdiction must be based on the consent of the nonmember:

Not only is regulation of fee land sale beyond the tribe’s sovereign powers, it runs the risk of

subjecting nonmembers to tribal regulatory authority without commensurate consent. Tribal

sovereignty, it should be remembered, is “a sovereignty outside the basic structure of the

Constitution.” United States v. Lara, ... (Kennedy, J., concurring in judgment). The Bill of

Rights does not apply to Indian tribes. Indian courts “differ from traditional courts in a

number of significant respects.” And nonmembers have no part in tribal government—they

have no say in the laws and regulations that govern tribal territory. Consequently, those laws

Lara, 541 U.S. at 200.

Id.

Id. at 212.

Id.

Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

and regulations may be fairly imposed on nonmembers only if the nonmember has

consented, either expressly or by his actions. Even then, the regulation must stem from the

tribe’s inherent sovereign authority to set conditions on entry, preserve tribal selfgovernment, or control internal relations.42

Although the Supreme Court stated in Lara that Congress has authority to relax restrictions on the

tribes’ inherent authority so that they may try nonmember Indians, it is not clear whether today’s

Court would reach the same result. Of the five Justices signing on to that statement, only Justice

Breyer and Ginsburg are on the Court today.43 Justice Kennedy expressed doubt about whether

Congress had that authority.44 Justice Thomas questioned whether tribes had inherent sovereignty

at all and stated that he believed tribes did not have inherent authority to try their own members,

but that under existing precedent, he believed Congress had the authority to change the contours

of the tribes’ inherent sovereignty.45 Justice Scalia, in signing on to Justice Souter’s dissent,

apparently believed Congress did not have authority to expand the inherent sovereignty of Indian

tribes to try nonmember Indians.46

Indian law is full of contradictions and confusion, making it difficult to predict how the Court

will decide. As Justice Thomas wrote in his concurrence in Lara, “Federal Indian policy is, to say

the least, schizophrenic. And this confusion continues to infuse federal Indian law and our

cases.”47 Therefore, it is not clear whether the Court considering a tribal court conviction under

the VAWA Reauthorization would find that Congress has the authority to expand the inherent

sovereignty of tribes to try non-Indian defendants.

If Congress does not have authority to subject citizens to inherent tribal criminal authority, it is

possible that the courts would uphold tribal authority to try defendants involved in non-Indian on

Indian domestic and dating violence as a delegation of federal authority. This is what Justice

Souter would have done in Lara.48 He, with Justice Scalia, dissented because they believed that

prior precedent referring to the need for Congress to delegate authority to the tribes to try

nonmember Indians was binding49 and that, by virtue of their dependent status, tribes simply

cannot exercise inherent authority to try nonmembers.50 To fulfill Congress’s intention to fill the

jurisdictional void created by Duro, they would have found that Congress delegated federal

authority to the tribes to try nonmember Indians.

Implications of Delegated versus Inherent Tribal Sovereignty

The dichotomy between delegated and inherent power of tribes has important constitutional

implications. If Congress is deemed to have delegated to the tribes Congress’s own power to

prosecute crimes, the whole panoply of protections accorded criminal defendants in the Bill of

Id. at 337 (other citations omitted).

Justices Breyer and Ginsburg were among the majority.

Lara, 541 U.S. at 212. (Kennedy, J., concurring).

Id.. at 215 (Thomas, J., concurring).

Plains Commerce Bank, 541 U.S. at 231.

Lara, 514 at 219 (Thomas, J., concurring).

Id. at 231.

Id. at 227.

Id. at 231.

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Rights will apply.51 If, on the other hand, Congress is permitted to recognize the tribes’ inherent

sovereignty, so that the tribes are exercising their own powers, the Constitution will not apply.52

Instead, criminal defendants must rely on statutory protections under the Indian Civil Rights Act

or those protected under tribal law. Although the protections found in federal statutory and

constitutional sources are similar, there are several important distinctions between them. Most

importantly, if inherent sovereignty is recognized and only federal statutory protections are

triggered, defendants (1) may be subjected to double jeopardy for the same act; (2) may not be

able to exercise fully their right to counsel; (3) may have no right to prosecution by a grand jury

indictment; (4) may not have access to a representative jury of their peers; and (5) may have

limited federal appellate review of their cases.

Additionally, although the Indian Civil Rights Act (ICRA) covers many of the same protections

found in the U.S. Constitution, the same protections are not always given the same meaning. For

instance, the terms “due process” and “equal protection” are construed with regard to the

“historical, governmental and cultural values of an Indian tribe.”53 As such, these rights may

function much differently than they do in federal courts.

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be

subject for the same offence to be twice put in jeopardy of life or limb[.]”54 In general, the Double

Jeopardy clause protects an individual from being subjected twice to the perils of trial for the

same offense.55 The purpose of the Double Jeopardy Clause was best framed by Justice Black in

Green v. United States:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of

jurisprudence is that the State with all its resources and power should not be allowed to make

repeated attempts to convict an individual for an offense, thereby subjecting him to

embarrassment, expense, and ordeal and compelling him to live in a continuing state of

anxiety and insecurity, as well as enhancing the possibility that even though innocent he may

be found guilty.56

There are three broad classes of cases to which the clause applies: (1) a second prosecution for

the same offense after an acquittal; (2) a second prosecution for the same offense after a

conviction; and (3) multiple punishments for the same offense.57 To determine if two prosecutions

are for the “same offense” (and thus barred by the clause), a court will ask whether the elements

of the two crimes are the same.58 However, even in instances in which two acts constitute the

Duro v. Reina, 495 U.S. 676, 686 (1990) (“Had the prosecution been a manifestation of external relations between

the Tribe and outsiders, such power would have been inconsistent with the Tribe’s dependent status, and could only

have come to the Tribe by delegation from Congress, subject to the constraints of the Constitution.”).

Talton v. Mayes, 163 U.S. 376 (1896) (holding that Fifth Amendment did not apply to the Cherokee nation); Nevada

v. Hicks, 533 U.S. 353, 383 (2001) (“[I]t has been understood for more than a century that the Bill of Rights and the

Fourteenth Amendment do not of their own force apply to Indian tribes.”).

Tom v. Sutton, 533 F.2d 1101, 1105 n.5 (9th Cir. 1976).

U.S. CONST. amend. V.

Green v. United States, 355 U.S. 184, 187 (1957).

Id.

United States v. Difrancesco, 449 U.S. 117, 129 (1980).

Brown v. Ohio, 432 U.S. 161, 166 (1977) (applying the Blockburger test, which is used to test whether two offenses

(continued...)

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

“same offense” under this elements test, separate prosecutions are not prohibited when different

sovereigns exert criminal jurisdiction.

Under this dual sovereignty doctrine, the Supreme Court has ruled that “an act denounced as a

crime by both national and state sovereignties is an offense against the peace and dignity of both

and may be punished by each.”59 As such, a defendant may be subjected to two prosecutions for

the same offense by two different sovereign governments. This doctrine was extended to the tribal

context in United States v. Wheeler.60 There, the Court had to determine if the Double Jeopardy

Clause barred the prosecution of an Indian in federal court when he had previously been

convicted in tribal court for a lesser included offense arising out of the same incident.61 This

question hinged on whether the tribe’s authority to prosecute its own members was inherent or

delegated. If it were exercising inherent authority, the tribe would be deemed a sovereign, the

dual sovereignty rule would apply, and the Double Jeopardy Clause would not bar a second

prosecution for the same offense.62 However, if the tribe were exercising delegated authority from

the federal government, its power would not be sovereign, but merely derivative of Congress’s

power. Under this approach, the dual sovereignty rule would not apply, and a second prosecution

would be barred.63

The Court ultimately recognized that Indian tribes may have been divested of some powers of

sovereignty, but have retained certain aspects of sovereignty, including criminal jurisdiction over

their own members.64 Because of this dependent status, the Court explained, the tribes’

sovereignty “exists only at the sufferance of Congress.”65 Because Congress had been silent as to

tribal jurisdiction over their own members, the Court concluded that they retained this power.

Additionally, the Court relied on the fact that there was no express grant of criminal jurisdiction

to the tribes to try their own members, further supporting the theory that the tribes were

exercising pre-existing sovereign powers rather than powers delegated from Congress. By

deeming this inherent power, the tribe’s prosecution of the defendant did not violate the Double

Jeopardy Clause.

There are various double jeopardy implications for accepting either the inherent sovereignty or

delegation theories. If tribal jurisdiction is extended to non-Indians under inherent sovereignty,

any non-Indian may be subject to multiple prosecutions in tribal and federal courts, as the dual

(...continued)

are sufficiently distinguishable to allow for cumulative punishment) (quoting Blockburger v. United States, 284 U.S.

299, 304 (1932)).

United States v. Lanza, 260 U.S. 377, 382 (1922).

United States v. Wheeler, 435 U.S. 313 (1978).

Wheeler, 435 U.S. at 314.

Id. at 316-17.

Id. at 321-22.

Id. at 326.

Moreover, the sovereign power of a tribe to prosecute its members for a tribal offense clearly does

not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent

status. The areas in which such implicit divestiture of sovereignty has been held to have occurred

are those involving the relations between an Indian tribe and non-members of the tribe.... And as

we recently held, they cannot try non-members in tribal courts.

Id. (internal citations omitted).

Id. at 323.

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

sovereignty doctrine will preclude application of the Double Jeopardy Clause. Conversely, as

observed in Wheeler, under the delegation theory, a prosecution by a tribe for a minor offense

may bar prosecution by the federal government for a more serious federal crime.66 If a tribal

prosecution were to conclude before a federal case, under the delegation theory, this would

preclude an imposition of sentence in the federal prosecution, usually for a more serious

punishment under federal law. Further complicating the issue, under the Indian Civil Rights Act,

tribes may only sentence a defendant for a maximum prison term of three years for any one

offense or nine years total.67 If that prosecution concludes first, that will be the maximum penalty

to which the defendant may be sentenced (as long as both prosecutions would be for the “same

offense”).

Right to Counsel

The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall enjoy the

right ... to have the Assistance of Counsel for his defense.”68 The primary purpose of the right to

counsel is to ensure the defendant is accorded a fair trial.69 The Sixth Amendment right to counsel

is not limitless, but attaches when criminal proceedings have been initiated against the defendant

“by way of formal charge, preliminary hearing, indictment, information, or arraignment.”70 The

right to counsel under the Sixth Amendment, however, does not cover police interrogations.71 To

protect this fundamental right, the Supreme Court has required that both federal and state

governments provide counsel when the defendant cannot afford one. The Court observed that this

“noble ideal cannot be realized if the poor man charged with crime has to face his accusers

without a lawyer to assist him.”72 However, counsel need not be provided at no cost in every case.

The court must determine if the case will result in actual imprisonment. If so, the defendant is

entitled to counsel.73 If the criminal offense permits imprisonment, but the judge determines that

such an imposition will not occur in that case, the defendant is not provided free counsel.74

In tribal prosecutions, the Indian Civil Rights Act requires that Indian tribes may not “deny to any

person in a criminal proceeding the right ... at his own expense to have the assistance of counsel

Wheeler, 435 U.S. at 318.

25 U.S.C. §1302(b).

U.S. Const. amend VI.

See Gideon v. Wainright, 372 U.S. 335 (1963).

Kirby v. Illinois, 406 U.S. 682, 689 (1972).

Moran v. Burbine, 475 U.S. 412, 432 (1986). The right to counsel during interrogations derives from the Fifth

Amendment right against self-incrimination. U.S. CONST. amend V.

U.S. CONST. amend VI; Gideon, 372 U.S. at 344.

Not only these precedents but also reason and reflection require us to recognize that in our

adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer,

cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious

truth. Governments, both state and federal, quite properly spend vast sums of money to establish

machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed

essential to protect the public’s interest in an orderly society. Similarly, there are few defendants

charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and

present their defenses.

Id.

Argersinger v. Hamlin, 407 U.S. 25, 36 (1972).

Scott v. Illinois, 440 U.S. 367, 373-74 (1979).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

for his defense.”75 Because the United States Constitution does not apply to Indian tribes, the

tribal courts are not required under the Sixth Amendment to provide indigent defendants counsel

in all cases where the defendant faces actual imprisonment.76 The Tribal Law and Order Act of

2010, however, requires Indian tribes to provide free counsel to defendants for crimes with a

sentence of more than one year.77 Additionally, the VAWA Reauthorization would require tribes to

provide counsel to defendants if any term of imprisonment may be imposed.78 There is, however,

some question whether tribes have the resources to provide all defendants counsel when required

to do so.79

If tribes are unable to provide counsel in some instances, evidence obtained in these cases might

be inadmissible in a later federal prosecution. In United States v. Ant, for example, the defendant

pleaded guilty to manslaughter in tribal court and was sentenced to six months’ imprisonment.80 A

federal indictment was then brought against him for the same crime. The prosecution sought to

admit into evidence his guilty plea from the tribal prosecution. The U.S. Court of Appeals for the

Ninth Circuit ruled that the plea was inadmissible, as it was obtained in violation of the

defendant’s Sixth Amendment right to counsel.81 In particular, Ant was not afforded the

opportunity to have appointed counsel; did not make a knowing and intelligent waiver of that

right; and was not made aware that his guilty plea could be used in a later prosecution. Although

the Court left untouched the tribal prosecution, it would not permit evidence obtained in violation

of the Constitution into evidence.82

In addition to the Sixth Amendment right to counsel, a distinct and separate right to counsel has

been implied from the Fifth Amendment right against self-incrimination.83 Likewise, the Indian

Civil Rights Act contains a nearly identical provision prohibiting the tribes from compelling any

person “to be a witness against himself.”84 In construing the Fifth Amendment right against selfincrimination, the Supreme Court held in Miranda v. Arizona that before questioning a suspect in

custody, police are required to warn him that he has the right to have an attorney present and will

have one appointed for him if he cannot afford one.85 As the Court noted in Miranda:

If an individual indicates that he wishes the assistance of counsel before any interrogation

occurs, the authorities cannot rationally ignore or deny his request on the basis that the

Tribal Law and Order Act of 2010, P.L. 111-211, §234, 124 Stat. 2261, 2280 (codified at 25 U.S.C. 1302 (a)(6)).

See Duro v. Reina, 495 U.S. 676, 694 (1990) (“The Indian Civil Rights Act of 1968 provides some statutory

guarantees of fair procedure, but these guarantees are not equivalent to their constitutional counterparts. There is, for

example, no right under the Act to appointed counsel for those unable to afford a lawyer.”).

25 U.S.C. §1302 (c)(2).

S. 47, H.R. 11, §904.

Gary Fields, Native Americans on Trial Often Go Without Counsel, WALL STREET JOURNAL A1 (February 1, 2007).

United States v. Ant, 882 F.2d 1389, 1394 (9th Cir. 1989).

Id. at 1396.

Id.

U.S. CONST. amend V. (“No person ... shall be compelled in any criminal case to be a witness against himself.... ”).

25 U.S.C. §1302. (“No Indian tribe in exercising powers of self-government shall ... compel any person in any

criminal case to be a witness against himself[.]”)

Miranda v. Arizona, 384 U.S. 436, 472 (1966). It appears that the tribal courts have generally required Miranda-like

warnings to be given to suspects before being questioned about a crime, and also require exclusion of any unwarned

statements. See Lower Elwha Klallam Indian Tribe v. Bolstrom, 19 Ind. L. Rep. 6026, 6027 (L. Elwha Ct. App. 1991);

see also Robert J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 34 IDAHO L. REV.

465, 499 (1998).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

individual does not have or cannot afford a retained attorney. The financial ability of the

individual has no relationship to the scope of the rights involved here. The privilege against

self-incrimination secured by the Constitution applies to all individuals.86

Once the accused invokes his right to counsel under Miranda, interrogation should stop until an

attorney is present.87 As the Court observed in Miranda, the police are not required to keep a

station house lawyer on hand at all times to advise suspects.88 However, if the tribes are unable to

provide suspects with counsel, Miranda requires that the police not question the suspects unless

they waive their right to counsel.89 Accordingly, if a suspect invokes his right to counsel, but the

tribe does not provide one, any uncounseled statements would be inadmissible in a tribal90 or

federal prosecution.91

As one observer has noted, over the years, Congress and the executive branch have made efforts

to increase tribal prosecutions.92 With this increase may come a greater need for public defenders

who can practice in tribal courts. If Congress expands tribal jurisdiction over non-Indians, it may

want to consider additionally expanding resources for tribes in order to provide such counsel.

Grand Jury Indictment

The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment of indictment of a Grand Jury.”93 A grand jury is an

investigatory body of citizens who are brought together to decide whether there is enough

evidence to bring formal charges against an individual.94 Historically, grand juries were seen as a

buffer between the accuser and the accused, preventing the arbitrary exercise of government

power.95 As apparent from the constitutional text, not all criminal cases must be initiated by a

grand jury, but only those for “infamous crimes.” Rule 7 of the Federal Rules of Criminal

Procedure requires that any crime that is punishable by death or imprisonment for more than one

year (felony) must be prosecuted by a grand jury indictment.96

Miranda, 384 U.S. at 472.

Edwards v. Arizona, 451 U.S. 477, 485 (1981).

Miranda, 384 U.S. at 474.

Duckworth v. Eagan, 492 U.S. 195, 204 (1989).

See Bolmstrom, 19 Ind. L. Rep. at 6027 (explaining that exclusion of evidence is the proper remedy for failure of

tribal officers to advise suspects of their Miranda rights).

See United States v. Medearis, 775 F. Supp. 2d 1110, 1127 (D.S.D. 2011) (suppressing unwarned statements

produced from interrogation by tribal officers).

Robert T. Anderson, Criminal Jurisdiction, Tribal Courts, and Public Defenders, 13 KAN. J.L. & PUB. POL’Y 139,

145 (2003).

U.S. CONST. amend V. For a comprehensive treatment of federal grand juries, see CRS Report 95-1135, The Federal

Grand Jury, by (name redacted).

United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).

See Wood v. Georgia, 370 U.S. 375, 390 (1962) (“Historically, this body has been regarded as a primary security to

the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of

standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to

determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal

ill will.”).

Fed. R. Crim. P. 7. This rule was an attempt to distill and capture Supreme Court cases construing the Fifth

Amendment grand jury right. See Ex parte Wilson, 114 U.S. 417 (1885) (holding that potential term of fifteen years of

hard labor was an “infamous crime”); Mackin v. United States, 117 U.S. 348 (holding that potential term of

(continued...)

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Unlike in federal court, in tribal prosecutions there is neither a constitutional nor federal statutory

right to a grand jury indictment. In the seminal case Talton v. Hayes, the Supreme Court held that

the right to prosecution by grand jury indictment contained in the Fifth Amendment did not apply

against the tribes.97 The Court reasoned that because the Cherokee nation was constituted before

the founding of America, protections in the United States Constitution could not logically apply

to the tribes.98 Likewise, the Indian Civil Rights Act does not contain a statutory requirement for a

grand jury indictment for felonies. With neither constitutional nor statutory protections, the

accused in tribal court must submit to the criminal practices of that particular tribe. However, in

the context of jurisdiction over non-Indians, if Congress is deemed to have delegated its power to

the tribes, the grand jury requirement along with the other safeguards of the Constitution will

apply in tribal prosecutions.

Jury of One’s Peers

The right to a jury trial has a long historical pedigree in Anglo-American tradition, dating back to

the Magna Carta and before.99 This right was imported from England by the American colonists,

and found its place in the Sixth Amendment, which provides: “In all criminal prosecutions, the

accused shall enjoy the right to a ... public trial, by an impartial jury of the State and district

wherein the crime shall have been committed.”100 Like the right to a grand jury, the right to a jury

trial relied on a body of one’s peers to protect them against unrestrained and arbitrary government

power.101

Not long after passage of the Fourteenth Amendment, the accused began attacking the racial

composition of juries as a violation of the Equal Protection Clause. In Strauder v. West Virginia,

the Supreme Court held that West Virginia’s statute that required that a jury consist of only white

men was a violation of the black defendant’s right to equal protection of the law.102 Since then,

there have been innumerable equal protection challenges concerning the racial make-up of

juries.103 Along these lines, in 1942, the Court observed that “the proper functioning of the jury

system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of

the community.’”104 This has come to be known as the “fair cross-section” requirement.105

(...continued)

imprisonment of two years was an “infamous crime”).

Talton v. Hayes, 163 U.S. 376, 384 (1896). Although the Supreme Court has since applied many of the protections

for criminal defendants contained in the Bill of Rights against the states through Fourteenth Amendment incorporation,

the grand jury requirement has not been incorporated and thus does not apply in state prosecutions. Hurtado v.

California, 110 U.S. 516, 538 (1884).

Talton, 163 U.S. at 383-84.

Thompson v. Utah, 170 U.S. 343, 349 (1898) (citing JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES §1779).

100

U.S. CONST. amend VI.

101

Id. (“Those who emigrated to this country from England brought with them this great privilege as their birthright

and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side

against the approaches of arbitrary power.”) (citation and internal quotation marks omitted).

102

Strauder v. West Virginia, 100 U.S. 303, 310 (1879).

103

See, e.g., Neal v. Delaware, 103 U.S. 370 (1880) (holding that discriminatory administration of jury selection laws

violated the equal protection clause); Swain v. Alabama, 380 U.S. 202, 221 (holding that preemptory challenge of black

jurors was not per se invalid under the equal protection clause).

104

Glasser v. United States, 315 U.S. 60, 85 (1942) (quoting Smith v. Texas, 311 U.S. 128, 130 (1940)).

105

Taylor v. Louisiana, 419 U.S. 522, 531 (1975).

(continued...)

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Generally, the prosecution and defense may remove an individual from the jury using a

peremptory challenge without having to explain the reason for doing so.106 But the Court in

Batson v. Kentucky held that peremptory challenges based solely on account of race are prohibited

by the equal protection clause.107

Under the Indian Civil Rights Act, “[n]o Indian tribe in exercising powers of self-government

shall ... deny to any person accused of an offense punishable by imprisonment the right, upon

request, to a trial by jury of not less than six persons.”108 This requirement meets the

constitutional minimum of a six-member jury,109 but it does not require an impartial one. This

could pose equal protection problems. For example, as one observer notes, some tribal courts are

not required to allow nonmembers to sit on juries.110 To provide vastly different forms of

constitutional protections to similarly situated people simply based on race is the problem the

equal protection clause was designed to prevent.111 The Court’s hesitation to submit non-Indians

to an Indian jury was evident in Oliphant. In commenting on the inverse situation—Indians being

tried by a non-Indian jury—the Court noted that Indians were being tried “not by their peers, nor

by the customs of their people, nor the law of their land, but by … a different race, according to

the law of a social state of which they have an imperfect conception.”112

Although these possible equal protection problems have been raised, the Supreme Court has yet

to squarely address this issue in the tribal context. S. 47 and H.R. 11 include specific protections

to address this issue. The bill requires the tribe to provide defendants “the right to a trial by an

impartial jury that is drawn from sources that—(A) reflect a fair cross section of the community;

and (B) do not systematically exclude any distinctive group in the community, including non(...continued)

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the

Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a

jury is to guard against the exercise of arbitrary power—to make available the commonsense

judgment of the community as a hedge against the overzealous or mistaken prosecutor and in

preference to the professional or perhaps overconditioned or biased response of a judge. This

prophylactic vehicle is not provided if the jury pool is made up of only special segments of the

populace or if large, distinctive groups are excluded from the pool. Community participation in the

administration of the criminal law, moreover, is not only consistent with our democratic heritage

but is also critical to public confidence in the fairness of the criminal justice system. Restricting

jury service to only special groups or excluding identifiable segments playing major roles in the

community cannot be squared with the constitutional concept of jury trial.

Id.

106

Swain, 380 U.S. at 220.

107

Batson v. Kentucky, 476 U.S. 79, 89 (1986).

108

25 U.S.C. §1302(10).

109

Williams v. Florida, 399 U.S. 78, 102-03 (1970).

110

Sam Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory

Abrogation of Oliphant, 57 U.C.L.A. L. REV. 553, 578-79 (2009); see Navajo Nation v. McDonald, 19 Ind. L. Rpt.

6053, 6054 (Nav. Sup. Ct. 1991) (rejecting defendant’s challenge that use of tribal voter lists to create jury pool denied

him a jury of a fair cross-section of the community).

111

Batson, 476 U.S. at 86 (“Purposeful racial discrimination in selection of the venire violates a defendant’s right to

equal protection because it denies him the protection that a trial by jury is intended to secure. ‘The very idea of a jury is

a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is,

of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.’”) (internal

citation omitted).

112

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 211 (1978) (quoting Ex parte Crow Dog, 109 U.S. 556, 571

(1883)).

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

Indians.”113 If tribal criminal jurisdiction is extended to cover non-Indians under the VAWA

Reauthorization, some tribes may have to reconstitute their jury systems to provide more

representative juries for non-Indian defendants.

Limited Review by Federal Courts

There are significant differences in appellate review of criminal prosecutions between tribal and

federal courts. Although in 1894 the Supreme Court held in McKane v. Durston that the due

process clause does not create a constitutional right to appeal in a criminal case,114 there are

numerous statutory avenues for appellate review in federal prosecutions. For example, under 18

U.S.C. Section 3742, a defendant may appeal a decision of a federal trial court if the sentence was

imposed in violation of the law or an incorrect application of the sentencing guidelines.115

Criminal decisions in tribal courts, on the other hand, are not subject to direct federal appellate

review. In Santa Clara Pueblo v. Martinez, the Supreme Court was asked to determine what

forms of review may be granted from a tribal court ruling.116 The Court observed that, after

balancing the competing interests of “preventing injustices perpetrated by tribal governments”

with “avoiding undue or precipitous interference in the affairs of the Indian people,” Congress

chose habeas review as the sole form of relief.117 Generally speaking, the writ of habeas corpus

requires any government authority who is holding (habeas) a person (corpus) in custody to

produce that person to the court in order to determine the legality of his detention.118 In addition

to the traditional custody requirement, ICRA requires that defendants may only seek federal

habeas review when they have exhausted all tribal remedies.119

There are several potential defects with applying the habeas approach to cases over non-Indians.

First, a writ of habeas corpus, as pointed out by Justice White’s dissent in Santa Clara Pueblo,

can only be invoked when the defendant is in custody.120 This will preclude any appeal to federal

court that entails a fine or where the prison term has already been served. Second, protections

under ICRA will primarily be construed and enforced in tribal forums.121 Important civil rights

such as equal protection and due process will be construed by tribal courts, which may not be

113

114

S. 47, H.R. 11, §904.

McKane v. Durston, 153 U.S. 684, 687 (1894).

An appeal from a judgment of conviction is not a matter of absolute right, independently of

constitutional or statutory provisions allowing such appeal. A review by an appellate court of the

final judgment in a criminal case, however grave the offence of which the accused is convicted,

was not at common law and is not now a necessary element of due process of law. It is wholly

within the discretion of the State to allow or not to allow such a review.

Id.

115

18 U.S.C. §3742.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 67 (1978).

117

Id. at 66-67.

118

For an overview of habeas corpus, see CRS Report RL33391, Federal Habeas Corpus: A Brief Legal Overview, by

(name redacted).

119

25 U.S.C. §1303. This same exhaustion requirement must be met in order for a defendant prosecuted in state court

to seek federal habeas relief. 28 U.S.C. §2254(b).

120

Santa Clara Pueblo, 436 U.S. at 74 (White, J., dissenting).

121

Id. at 65 (“Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of

disputes affecting important personal and property interests of both Indians and non-Indians.”).

116

Congressional Research Service

Tribal Criminal Jurisdiction over Non-Indians in VAWA

bound by the U.S. Constitution. With habeas as the only avenue of review, federal oversight

accorded criminal defendants might be limited. In light of this, Congress may want to reconsider

using habeas as the sole form of review if tribal criminal jurisdiction is extended over non-Indians

under the VAWA Reauthorization. Authorizing the same federal appellate review as is received in

federal courts could close this gap.

Conclusion

Supporters of the VAWA Reauthorization assert there is a significant problem of domestic and

dating violence against American Indian women. Currently, although tribes may prosecute Indian

perpetrators, they may not prosecute non-Indian perpetrators. In addition, most states do not have

jurisdiction to prosecute non-Indians who commit domestic and dating violence against Indians.

Usually, the federal government has exclusive jurisdiction to try such non-Indian perpetrators.

However, because federal prosecutors usually are located a long distance from reservations and

have heavy workloads, investigation and prosecution of non-Indian on Indian domestic and

dating violence are said to be inadequate. The VAWA Reauthorization would provide tribal courts

with criminal jurisdiction to prosecute non-Indians charged with domestic or dating violence

against an Indian that occurs within their jurisdictions.

With the VAWA Reauthorization’s tribal jurisdiction provisions, there are two fundamental legal

questions that must be asked: (1) If Congress grants Indian tribes criminal jurisdiction over nonIndians, would this be a recognition of inherent sovereignty or a delegation of federal

prosecutorial power?; and (2) Depending on which form of authority is employed, what

procedural safeguards will be accorded criminal defendants?

Through a series of cases and federal statutes, Indian tribes exercise their inherent sovereignty

over member Indians and nonmember Indians. It is not clear from the Supreme Court case law

whether this theory would be extended to prosecutions of non-Indians. If it is extended under an

inherent sovereignty theory, it appears that tribes will not be bound by the Constitution but only

by protections in the Indian Civil Rights Act, Tribal Law and Order Act, and the individual tribal

laws. If, on the other hand, the tribes are exercising delegated federal authority, it appears the full

catalog of protections in the Bill of Rights would apply against the tribes.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.go

v, 7-....

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.