Sarah DeerAssociate ProfessorWilliam Mitchell College of Law

Understand historical context for victimization in tribal communities

Understand basic legal restrictions on tribal jurisdiction over criminal activity

Consider possible solutions to address the high rates of crime in tribal communities

IndianNativeNative AmericanAmerican IndianOjibwe / Anishinaabe /ChippewaDakota / Sioux

Tribal Law vs. Federal Indian Law

Native people in the United States experience more violent crime per capita than any other population.

Most statistics on this subject do not differentiate between violent crimes that happen on reservations and crimes that happen in cities/towns/other areas.

Source: Violent Victimization and Race, March 2001, U.S. Department of Justice

Source: American Indians and Crime, December 2004, U.S. Department of Justice

Source: Domestic Violence: Results from the 2008 Minnesota Crime Victim Survey, Minnesota Department of Public Safety, July 2009

American Indian and Alaska Native women suffer a higher rate of rape and sexual assault (per capita) than any other group of people in the United States. (Dept. of Justice, BJS 2004)

34.1% of American Indian/Alaska Native women will be raped sometime during their life (CDC & DOJ, NVWS 2005)

Historically, tribal nations had full jurisdiction over all crimes (no limitation by foreign governments)

Traditional law (passed down through oral traditions) typically promoted a victim-centered response to crime.

Traditionally, violence against women was not tolerated in indigenous societies

Tribal governments had strict laws against hurting family members, especially women and children

Matrilocal / Matrilineal

Punishments included banishment and death

“An Indian never attempts, nay, he cannot use towards a woman amongst them any indelicacy or indecency, either in action or language. I never saw or heard of an instance of an Indian beating his wife or other female, or reproving them in anger or in harsh language.”

-William Bartram (European), 1773 (writing about the Creek and Cherokee Indians)

What factor(s) explain the disproportionate amount of violence in the lives of Native people in the United States?

Extinguishment of Indian title to eastern lands

Removal of Indians beyond state boundary lines westward

Westward non-Indian settlement past Indian Territory to California

Creation of reservations within states and territories

Indian “Wars”

End of treaty-makingFederal courts given some criminal

jurisdiction over crimes committed by Indians in Indian Country

Federal government individually allots tribal lands

Opens up remainder of Indian lands for non-Indian settlement

Boarding Schools

Allotment ended

Tribes allowed/encouraged adopt Anglo-American style constitutions

Tribes establish tribal councils and business committees

Controversy over IRACongress passes statutes subjecting

some tribes to termination of federal supervision and subjecting them to state jurisdiction

Many Indians relocated to urban centers

Public Law 280

Revitalization of tribal entities and improvement of conditions on reservation

Restoration of some tribes to federal recognition and supervision

Indian Civil Rights Act (1968) Indian Self-Determination and

Education Assistance Act Indian Child Welfare Act (1978) Indian Gaming Regulatory Act

Major Crimes Act

Public Law 280

Indian Civil Rights Act

Oliphant v. Suquamish

Congress confers federal jurisdiction over Major Crimes (felonies) in Indian Country

Note: Did not eliminate concurrent tribal jurisdiction

Federal law (1953)

Conferred on the state Minnesota (and 5 other states) broad criminal and limited civil jurisdiction –

Over all Minnesota tribes except Red Lake Band (1953) Bois Forte Band (1975)

Public Law 280 – Conferred Jurisdiction

Criminal

Limited civil

Eliminated most but not all federal criminal jurisdiction in Indian country

Authorized states to apply their statewide criminal laws in Indian country, to Indians and non-Indians

Opened state courts to private suits against Indians arising in Indian country

Authorized states, not tribes, to return (retrocede) their jurisdiction back to the federal government

Authorize states to apply their regulatory laws within Indian country

Make city or county laws applicable in Indian country

Authorize state jurisdiction over Indian nations as governments.

Authorize states to exercise jurisdiction over trust lands

Authorize states to exercise jurisdiction over federally protected hunting and fishing rights

Eliminate preexisting tribal jurisdiction

The State of Minnesota has concurrent jurisdiction over many matters that arise on reservations Concurrent = simultaneously Concurrent = more than one sovereign

entity has power (tribe and state)

Minnesota’s concurrent jurisdiction is limited to certain kinds of cases. Criminal Civil adjudicatory

Passed during an era of termination and relocation

Indian opposition (one-sided process)

State dissatisfaction (funding)

1968 amendments allow states (but not tribes) to retrocede

Important changes in 2010 (Tribal Law and Order Act) will result in potential changes to the 280 scheme for some tribes.

Public Law 280 did not eliminate pre-existing tribal jurisdiction

Tribal governments have exercised authority over people and places for thousands of years

Tribal governments in 280 states can still assert their authority over crime in their nations.

Tribes may not currently be exercising jurisdiction over criminal matters, but this does not mean they have lost the authority.

25 U.S.C. 1302(7)

Limitation of sentencing to 1 year, a $5000 fine or both

Important changes in 2010 (Tribal Law and Order Act) will result in potential changes to the sentencing restriction

435 U.S. 191 (1978)

Supreme Court ruled that tribal governments lack criminal jurisdiction over non-Indians.

Note: Does not limit civil authority over non-Indians (other cases provide those parameters)

LIMITED to prosecution of members of federally-recognized tribes

LIMITED to 1 year incarceration, $5000 fine or both

LIMITED in terms of jail space / resources for probation

Result: Less prosecution, more crime

Tribal Law and Order Act (2010) Expanded tribal sentencing authority Provides more accountability measures for federal

departments

Violence Against Women Act Reauthorization (2013) Restores tribal jurisdiction over non-Indians accused of

domestic violence Clarifies that every tribe has full civil jurisdiction to

issue and enforce protection orders against all persons regarding matters arising on tribal lands, and that such orders are entitled to full faith and credit by non-tribal jurisdictions

Allies can support Native survivors of crime by supporting sovereignty initiatives

Acknowledge that tribal nations have history, tradition, and philosophy to develop contemporary victim-centered responses to crime

Tribal responses to crime need not mirror the state responses

Enlist leadership/advice from Native survivors of crime

Identify jurisdictional issues - advocacy leadership can be key

Develop Memoranda of Understanding between state and tribal victim services programs

Develop cross-training for tribal and non-tribal victim services programs

Sarah DeerWilliam Mitchell College of Law

Sarah.deer@wmitchell.edu651-290-6309