Indian Country Jurisdiction
Encyclopedia
Indian country jurisdiction, or the extent which tribal powers apply to legal situations in the United States
, has undergone many drastic shifts since the beginning of European settlement in America. Over time, federal statutes and Supreme Court rulings have designated more or less power to tribal governments, depending on federal policy toward Indians. Numerous Supreme Court decisions have created important precedents in Indian country jurisdiction, such as Worcester v. Georgia
, Oliphant v. Suquamish Tribe, and Montana v United States.
which created a boundary line between the British colonies and the American Indians lands west of the Appalachian Mountains
. The proclamation forbade the British colonists from moving beyond the proclamation line into Indian Territory.
Important legislations passed by the United States Congress
in early United States history were the Indian Intercourse Act
s. They were passed in 1780, and then they expired and were renewed every two years until 1802, when permanent legislation was passed. The final Indian Intercourse Act was passed in 1834. These acts did many things, including regulating relations between Indians and non-Indians living on Indian land and defining “Indian Country.”
in 1803, the United States began trying to do extensive negations with the Indians in this newly acquired territory. U.S. citizens saw the land as being very fertile and as if it was theirs for the taking and because of this many land disputes arose between Indians and non-Indians in this region. The first case that allowed the American seizure of Indian lands was Johnson v. McIntosh, which stated that when a European nation discovered land in the new world, that it also gained the right to take the land from the natives by purchase or by conquest.
At this time, states wanted to remove Indians from their territory, which led to more treaties and the establishment of the controversial policy of U.S. ethnic cleansing. These feelings resulted in the Indian Removal Act
, when Congress authorized President Andrew Jackson
to take land away from Indians and give them land in the West. It was the Indian Removal Act that helped Jackson set into place the Trail of Tears
in 1831.
. Allotments of 160 acres were handed out to each head of a family. Double amounts were handed out if the land was to be used for grazing. 80 acres (323,748.8 m²) could also be given to each additional member of the household.
The government would retain the title handed out through the General Allotment Act for 25 years. This time period intended on doing two things. First, it would protect the allottee from immediately having to pay state taxes. Second, the land owner would learn how to manage his land and affairs. However, after the 25 years was up, many Indians found themselves subject toe excessive state property taxes
, which resulted in the sale of much of the land which Indians received through the Dawes Act. Very soon after many of the Indians losing the land which they earned through the Dawes Act, white settlers moved in on these open lots. This created a checkerboard effect
, and made it nearly impossible to have sizable gains in farming and grazing.
The Indian Allotment Act had disastrous effects on the Native Americans. During the Allotment Act, the Native American population reached its lowest point in history. in 1900, the Native American population in the United States was only 250,000. There was also a substantial decrease in the amount of land owned by Native Americans. In 1887 the Indians had held 138 million acres (558,466.7 km²). By 1934, the amount of land held by Indians had dropped to 48 million acres (194,249.3 km²), and of that over 20 million acres (80,937.2 km²) was desert.
period was coming to a close in 1924 when Congress passed a statute granting citizenship to all to all Indians born within the United States. In 1928 the famous Meriam Report
was released. The Meriam Report documented the utter failure of the Dawes Act and the allotment policy. The passage of the Indian Reorganization Act
in 1934 officially marks the beginning of the Reorganization period. The Indian Reorganization Act ended the practice of allotment. It sought to protect the tribes and allow them to establish the legal structures for their own self-governments. The tribes were now authorized to create their own constitutions and laws, which could be ratified by a vote among the tribal members. After decades of misfortune and loss of culture and property, the Indian Reorganization Act put a stop to the destruction of the tribes.
era. The termination era began when Congress passed House Concurrent Resolution 108 in 1953, which stated:
The policy of termination has been seen as a direct attack on the sovereignty
of Indian nations - without being considered a reservation or a nation, Indian tribes lost jurisdiction, taxation protection, and were emerged them into a different world. The Bureau of Indian Affairs
attempted to prevent termination for some tribes by insisting the need for governmental assistance for tribes such as the Potawatomi Tribe of Kansas:
Efforts from the BIA did not stop the process of termination. In the twelve years of this policy, 109 tribes were terminated, with severe effects on education, health care, and economic stability.
Cold War
policies likely affected the policy of termination. Several reservations and nations enacted social programs, such as health care, on their citizens and socialism
was easily connected with the Soviet Union
. This fear likely drove Congress to move towards termination.
Termination might have been seen as a method of "freeing" tribes from the BIA and other governmental programs, but the policy likely hindered the efforts of Native Americans for tribal self-rule. Presidents Lyndon B. Johnson
and Richard Nixon
would lead the nation away from termination into self-determination.
, or the right of a group or nation to independently govern themselves. The legislation that has arisen from this policy of self-determination, which has been in effect since the late 1960s to present-day, has greatly influenced modern-day Indian country jurisdiction.
One example of this legislation is the Indian Civil Rights Act of 1968
, which imposed most of the requirements of the Bill of Rights
on the tribes and amended Public Law 280. This legislation both broadened and restricted tribal jurisdiction. The passage of the Act rejected the termination policy by requiring constitutional procedure by the tribal government, but it also limited tribal jurisdiction by limiting the independence of tribal government. The Civil Rights Act of 1968 also amended Public Law 280 so that states no longer held civil and criminal jurisdiction over Indian country unless the tribes consented at certain elections.
Also, in relation to the extension of state law into Indian country, in the 1983 Supreme Court case, New Mexico v. Mescalero Apache Tribe (462 U.S. 324, 334, 1983), it is held that state jurisdiction is permitted to interfere in tribal self-government in circumstances where “the state interests at stake are sufficient to justify the assertion of state authority”. In National Farmers Union Ins. Cos. V. Crow Tribe (471 U.S. 845 1885), a case involving civil jurisdiction in Indian country, the Supreme Court held that parties must first exhaust tribal court remedies before seeking federal court review of such questions. The 2001 case Nevada v. Hicks
(533 U.S. 355) further limited Indian country jurisdiction by holding that inherent tribal jurisdiction does not extend to state officials who commit crimes on reservation trust lands (Duthu. Ibid. Page xix).
Contemporary Indian country
jurisdiction has been shaped over the years by the rulings of many Supreme Court
cases and federal statutes involving criminal and civil jurisdiction within Indian country. Today, the jurisdiction of Federal, state, or tribal courts usually depends upon whether the parties involved are considered to be Indians or tribal members, the nature of the offense, and whether the events of the case took place in Indian country.
Though the definition varies, a person is usually considered an Indian if he or she has some Indian blood and is considered an Indian by the community. Blood requirements may vary from state to state, but oftentimes it is enough to have a parent, grandparent, or great-grandparent qualify as an Indian. To be identified as an Indian for federal and statutory purposes, however, a person must be a member of a federally recognized tribe.
Indian Country, as defined by Congress in 1948 (18 U.S.C.A. 1151) is:
a) "all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of way running through the reservation,
b) all dependent Indian communities within the borders of the U.S. whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
c) all Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same.”
This definition of Indian country includes all territory within an Indian reservation, even land owned by non-Indians in fee simple. Reservation land opened to settlement by non-Indians is still considered Indian country, unless Congress explicitly states its decision to remove the lands from reservation status and hence diminish the Indian country boundaries. Diminishment may occur in other ways, yet retain the meaning of Indian Country.
For example, when the Devils Lake Sioux litigated the question of tribal authority against the North Dakota
Public Service Commission, which was operating within reservation borders, the court, relying in part on intrepretations of 'Indian Character', ruled that the tribe had no authority over privately held lands even though more Indians than non-Indians lived on the reservation, yet more acreage was held in non-Indian ownership. Many tribes, such as the Yakama
in Washington state, have designated 'open' and 'closed' areas, reflecting this difference in the interpretation of jurisdiction. All of the political and legal interpretations of this situation may not eliminate the meaning of Indian Country, but as such they obscure the increasing diminishment of tribal sovereignty within reservation borders.
, theft involving the U.S. mail, the Organized Crime Control Act
, Racketeer Influenced and Corrupt Organizations Act
(RICO), and the Contraband Cigarette Trafficking Act. The General Crimes Act (18 U.S.C. § 1152) and the Major Crimes Act
, (18 U.S.C. § 1153) encompass other crimes and determine the jurisdiction when concerning particular cases.
The General Crimes Act of 1817 provides for the prosecution of crimes by non-Indians against Indians and of non-major crimes by Indians against non-Indians through the application of federal law. There are three exceptions to the Act, in which it does not apply to the following: crimes by Indians against Indians, crimes by Indians that received punishment through the tribe, and crimes in which a treaty gives exclusive jurisdiction to the tribe The Major Crimes Act of 1885 establishes federal jurisdiction in the prosecution of serious crimes committed by Indians in Indian country.
Federal civil jurisdiction is very limited in Indian country. Federal courts have jurisdiction in claims that arise under federal law and in cases of diversity of citizenship. Federal courts have no jurisdiction in civil cases involving divorce
, adoption
, child custody
, or probate
.
over Indians in Indian country is complete and exclusive unless there is a federal statute deeming it otherwise or limiting it in some way. Exclusive jurisdiction is given to the tribal courts over non-major crimes committed by Indians against Indians in Indian country, as well as victimless Indian crimes . Jurisdiction is also granted, though not exclusively, to tribal courts over non-major crimes by Indians against non-Indians. In these cases, federal courts also have jurisdiction through the General Crimes Act, so jurisdiction is shared.
Tribal courts have exclusive jurisdiction
in civil cases against any Indian in Indian country. This includes cases brought against an Indian by a non-Indian in Indian country, and all cases between tribal members that arise in Indian country. Exclusive jurisdiction over tribal subject matter also belongs to the tribal courts. In divorce cases, tribal courts have exclusive jurisdiction over divorces between Indians living in Indian country. In some divorce cases involving Indians living outside Indian country, the tribal and state courts may have concurrent jurisdiction. The Indian Child Welfare Act
of 1978 provides for tribal jurisdiction in adoption and custody cases of Indian children who are domiciled in Indian country. Children ultimately take the domicile of their parents, or if the child is illegitimate, it takes the domicile of its mother. Tribal courts also exercise jurisdiction in adoption and custody matters of Indian children who are tribal members. In cases involving probate, tribal courts have exclusive jurisdiction over non-trust movable assets of Indians residing in Indian country.
In general, states exercise civil jurisdiction in cases involving non-Indians, and sometimes non-tribal members, even when these cases arise in Indian country. In divorce cases, states have jurisdiction if both parties are non-Indian and living in Indian country. In matters involving adoption and child custody proceeding between parents, the division of jurisdiction is very similar. The states only have jurisdiction over cases involving the adoption and custody of Indian children not domiciled in Indian country. In probate cases, states have jurisdiction regarding cases of non-trust estates of Indians who died while they were domiciled outside of Indian country and also in cases dealing with any land outside of Indian country.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, has undergone many drastic shifts since the beginning of European settlement in America. Over time, federal statutes and Supreme Court rulings have designated more or less power to tribal governments, depending on federal policy toward Indians. Numerous Supreme Court decisions have created important precedents in Indian country jurisdiction, such as Worcester v. Georgia
Worcester v. Georgia
Worcester v. Georgia, 31 U.S. 515 , was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional.The...
, Oliphant v. Suquamish Tribe, and Montana v United States.
History
There have been many shifts in policy towards Indian Jurisdiction in the history of the United States. There are six major periods of policy regarding American Indians. The first is the British Colonial and Early U.S. Era, which was followed the Removal Era. The next period was the Allotment Era. The Reorganization Era was next and then the Termination Era. The last era is the one we are currently in, the Self-Determination Era. Different U.S. Supreme Court cases and Congressional rulings have shifted United States policy regarding Indian Jurisdiction, creating the different eras.Colonial and early U.S. policy
The British passed the Proclamation of 1763Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
which created a boundary line between the British colonies and the American Indians lands west of the Appalachian Mountains
Appalachian Mountains
The Appalachian Mountains #Whether the stressed vowel is or ,#Whether the "ch" is pronounced as a fricative or an affricate , and#Whether the final vowel is the monophthong or the diphthong .), often called the Appalachians, are a system of mountains in eastern North America. The Appalachians...
. The proclamation forbade the British colonists from moving beyond the proclamation line into Indian Territory.
Important legislations passed by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
in early United States history were the Indian Intercourse Act
Indian Intercourse Act
The Nonintercourse Act is the collective name given to six statutes passed by the United States Congress in 1790, 1793, 1796, 1799, 1802, and 1834. The Act regulates commerce between Native Americans and non-Indians...
s. They were passed in 1780, and then they expired and were renewed every two years until 1802, when permanent legislation was passed. The final Indian Intercourse Act was passed in 1834. These acts did many things, including regulating relations between Indians and non-Indians living on Indian land and defining “Indian Country.”
Removal
After the Louisiana PurchaseLouisiana Purchase
The Louisiana Purchase was the acquisition by the United States of America of of France's claim to the territory of Louisiana in 1803. The U.S...
in 1803, the United States began trying to do extensive negations with the Indians in this newly acquired territory. U.S. citizens saw the land as being very fertile and as if it was theirs for the taking and because of this many land disputes arose between Indians and non-Indians in this region. The first case that allowed the American seizure of Indian lands was Johnson v. McIntosh, which stated that when a European nation discovered land in the new world, that it also gained the right to take the land from the natives by purchase or by conquest.
At this time, states wanted to remove Indians from their territory, which led to more treaties and the establishment of the controversial policy of U.S. ethnic cleansing. These feelings resulted in the Indian Removal Act
Indian Removal Act
The Indian Removal Act was signed into law by President Andrew Jackson on May 28, 1830.The Removal Act was strongly supported in the South, where states were eager to gain access to lands inhabited by the Five Civilized Tribes. In particular, Georgia, the largest state at that time, was involved in...
, when Congress authorized President Andrew Jackson
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...
to take land away from Indians and give them land in the West. It was the Indian Removal Act that helped Jackson set into place the Trail of Tears
Trail of Tears
The Trail of Tears is a name given to the forced relocation and movement of Native American nations from southeastern parts of the United States following the Indian Removal Act of 1830...
in 1831.
Allotment
In the 1870s and 1880s there was an increasing amount of disapproval in regard to the government's reservation policy. People were seeing the Indians in two different ways. One group saw the Indians as a group of people living in poverty and shambles, while another group saw the Indians as a group of people causing large tracts of land to be excluded from white settlers. The combination of the two groups of people and their point of views led to the production of the General Allotment Act of 1887, also known as the Dawes ActDawes Act
The Dawes Act, adopted by Congress in 1887, authorized the President of the United States to survey Indian tribal land and divide the land into allotments for individual Indians. The Act was named for its sponsor, Senator Henry L. Dawes of Massachusetts. The Dawes Act was amended in 1891 and again...
. Allotments of 160 acres were handed out to each head of a family. Double amounts were handed out if the land was to be used for grazing. 80 acres (323,748.8 m²) could also be given to each additional member of the household.
The government would retain the title handed out through the General Allotment Act for 25 years. This time period intended on doing two things. First, it would protect the allottee from immediately having to pay state taxes. Second, the land owner would learn how to manage his land and affairs. However, after the 25 years was up, many Indians found themselves subject toe excessive state property taxes
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
, which resulted in the sale of much of the land which Indians received through the Dawes Act. Very soon after many of the Indians losing the land which they earned through the Dawes Act, white settlers moved in on these open lots. This created a checkerboard effect
Checkerboard
A checkerboard or chequerboard is a board of chequered pattern on which English draughts is played. It is an 8×8 board and the 64 squares are of alternating dark and light color, often red and black....
, and made it nearly impossible to have sizable gains in farming and grazing.
The Indian Allotment Act had disastrous effects on the Native Americans. During the Allotment Act, the Native American population reached its lowest point in history. in 1900, the Native American population in the United States was only 250,000. There was also a substantial decrease in the amount of land owned by Native Americans. In 1887 the Indians had held 138 million acres (558,466.7 km²). By 1934, the amount of land held by Indians had dropped to 48 million acres (194,249.3 km²), and of that over 20 million acres (80,937.2 km²) was desert.
Reorganization
The AllotmentAllotment (gardening)
An allotment garden, often called simply an allotment, is a plot of land made available for individual, non-professional gardening. Such plots are formed by subdividing a piece of land into a few or up to several hundreds of land parcels that are assigned to individuals or families...
period was coming to a close in 1924 when Congress passed a statute granting citizenship to all to all Indians born within the United States. In 1928 the famous Meriam Report
Meriam Report
The Meriam Report , whose official title was The Problem of Indian Administration, was commissioned by the Institute for Government Research and funded by the Rockefeller Foundation...
was released. The Meriam Report documented the utter failure of the Dawes Act and the allotment policy. The passage of the Indian Reorganization Act
Indian Reorganization Act
The Indian Reorganization Act of June 18, 1934 the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans, including Alaska Natives...
in 1934 officially marks the beginning of the Reorganization period. The Indian Reorganization Act ended the practice of allotment. It sought to protect the tribes and allow them to establish the legal structures for their own self-governments. The tribes were now authorized to create their own constitutions and laws, which could be ratified by a vote among the tribal members. After decades of misfortune and loss of culture and property, the Indian Reorganization Act put a stop to the destruction of the tribes.
Termination, 1953-1964
Unclear jurisdictional boundaries between states and tribes prompted the beginning of the Indian termination policyIndian termination policy
Indian termination was the policy of the United States from the mid-1940s to the mid-1960s. The belief was that Native Americans would be better off if assimilated as individuals into mainstream American society. To that end, Congress proposed to end the special relationship between tribes and the...
era. The termination era began when Congress passed House Concurrent Resolution 108 in 1953, which stated:
"Whereas it is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all the rights and prerogatives pertaining to American citizenship...."
The policy of termination has been seen as a direct attack on the sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
of Indian nations - without being considered a reservation or a nation, Indian tribes lost jurisdiction, taxation protection, and were emerged them into a different world. The Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
attempted to prevent termination for some tribes by insisting the need for governmental assistance for tribes such as the Potawatomi Tribe of Kansas:
"They ... have failed to acquire the necessary ambition, providence, and sense of responsibility to rise above their economic level."
Efforts from the BIA did not stop the process of termination. In the twelve years of this policy, 109 tribes were terminated, with severe effects on education, health care, and economic stability.
Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
policies likely affected the policy of termination. Several reservations and nations enacted social programs, such as health care, on their citizens and socialism
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
was easily connected with the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
. This fear likely drove Congress to move towards termination.
Termination might have been seen as a method of "freeing" tribes from the BIA and other governmental programs, but the policy likely hindered the efforts of Native Americans for tribal self-rule. Presidents Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
and Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
would lead the nation away from termination into self-determination.
Self-determination
The policy of termination was ultimately recognized as a failure by the late 1960s, and federal policy regarding Indians shifted toward that of self-determinationSelf-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
, or the right of a group or nation to independently govern themselves. The legislation that has arisen from this policy of self-determination, which has been in effect since the late 1960s to present-day, has greatly influenced modern-day Indian country jurisdiction.
One example of this legislation is the Indian Civil Rights Act of 1968
Indian Civil Rights Act of 1968
The Indian Civil Rights Act of 1968 applies to the Indian tribes of the United States and makes many, but not all, of the guarantees of the Bill of Rights applicable within the tribes. The Act appears today in Title 25, sections 1301 to 1303 of the United States Code.- Events before passage of...
, which imposed most of the requirements of the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
on the tribes and amended Public Law 280. This legislation both broadened and restricted tribal jurisdiction. The passage of the Act rejected the termination policy by requiring constitutional procedure by the tribal government, but it also limited tribal jurisdiction by limiting the independence of tribal government. The Civil Rights Act of 1968 also amended Public Law 280 so that states no longer held civil and criminal jurisdiction over Indian country unless the tribes consented at certain elections.
Also, in relation to the extension of state law into Indian country, in the 1983 Supreme Court case, New Mexico v. Mescalero Apache Tribe (462 U.S. 324, 334, 1983), it is held that state jurisdiction is permitted to interfere in tribal self-government in circumstances where “the state interests at stake are sufficient to justify the assertion of state authority”. In National Farmers Union Ins. Cos. V. Crow Tribe (471 U.S. 845 1885), a case involving civil jurisdiction in Indian country, the Supreme Court held that parties must first exhaust tribal court remedies before seeking federal court review of such questions. The 2001 case Nevada v. Hicks
Nevada v. Hicks
Nevada v. Hicks, , is a United States Supreme Court case regarding the jurisdiction of Tribal Courts over local Native Americans.- Background :Hicks was a member of the Fallon Paiute-Shoshone Tribes of western Nevada and lived on tribal land...
(533 U.S. 355) further limited Indian country jurisdiction by holding that inherent tribal jurisdiction does not extend to state officials who commit crimes on reservation trust lands (Duthu. Ibid. Page xix).
Present day jurisdiction
Indian Country
Indian country is a term used to describe the many self-governing Native American communities throughout the United States. This usage is reflected in many places, both legal and colloquial...
jurisdiction has been shaped over the years by the rulings of many Supreme Court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
cases and federal statutes involving criminal and civil jurisdiction within Indian country. Today, the jurisdiction of Federal, state, or tribal courts usually depends upon whether the parties involved are considered to be Indians or tribal members, the nature of the offense, and whether the events of the case took place in Indian country.
Though the definition varies, a person is usually considered an Indian if he or she has some Indian blood and is considered an Indian by the community. Blood requirements may vary from state to state, but oftentimes it is enough to have a parent, grandparent, or great-grandparent qualify as an Indian. To be identified as an Indian for federal and statutory purposes, however, a person must be a member of a federally recognized tribe.
Indian Country, as defined by Congress in 1948 (18 U.S.C.A. 1151) is:
a) "all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of way running through the reservation,
b) all dependent Indian communities within the borders of the U.S. whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
c) all Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same.”
This definition of Indian country includes all territory within an Indian reservation, even land owned by non-Indians in fee simple. Reservation land opened to settlement by non-Indians is still considered Indian country, unless Congress explicitly states its decision to remove the lands from reservation status and hence diminish the Indian country boundaries. Diminishment may occur in other ways, yet retain the meaning of Indian Country.
For example, when the Devils Lake Sioux litigated the question of tribal authority against the North Dakota
North Dakota
North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
Public Service Commission, which was operating within reservation borders, the court, relying in part on intrepretations of 'Indian Character', ruled that the tribe had no authority over privately held lands even though more Indians than non-Indians lived on the reservation, yet more acreage was held in non-Indian ownership. Many tribes, such as the Yakama
Yakama
The Confederated Tribes and Bands of the Yakama Nation, or simply Yakama Nation , is a Native American group with nearly 10,000 enrolled members, living in Washington. Their reservation, along the Yakima River, covers an area of approximately 1.2 million acres...
in Washington state, have designated 'open' and 'closed' areas, reflecting this difference in the interpretation of jurisdiction. All of the political and legal interpretations of this situation may not eliminate the meaning of Indian Country, but as such they obscure the increasing diminishment of tribal sovereignty within reservation borders.
Federal jurisdiction
Some federal criminal statutes are applicable throughout the entire nation, including Indian country, and apply to both Indians and non-Indians, such as treasonTreason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
, theft involving the U.S. mail, the Organized Crime Control Act
Organized Crime Control Act
The Organized Crime Control Act of 1970 , was an Act of Congress sponsored by Democratic Senator John L. McClellan and signed into law by U.S. President Richard Nixon....
, Racketeer Influenced and Corrupt Organizations Act
Racketeer Influenced and Corrupt Organizations Act
The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
(RICO), and the Contraband Cigarette Trafficking Act. The General Crimes Act (18 U.S.C. § 1152) and the Major Crimes Act
Major Crimes Act
The Major Crimes Act is a law passed by the United States Congress in 1885. It places 7 major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Native territory....
, (18 U.S.C. § 1153) encompass other crimes and determine the jurisdiction when concerning particular cases.
The General Crimes Act of 1817 provides for the prosecution of crimes by non-Indians against Indians and of non-major crimes by Indians against non-Indians through the application of federal law. There are three exceptions to the Act, in which it does not apply to the following: crimes by Indians against Indians, crimes by Indians that received punishment through the tribe, and crimes in which a treaty gives exclusive jurisdiction to the tribe The Major Crimes Act of 1885 establishes federal jurisdiction in the prosecution of serious crimes committed by Indians in Indian country.
Federal civil jurisdiction is very limited in Indian country. Federal courts have jurisdiction in claims that arise under federal law and in cases of diversity of citizenship. Federal courts have no jurisdiction in civil cases involving divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
, adoption
Adoption
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
, child custody
Child custody
Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
, or probate
Probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
.
Tribal jurisdiction
Tribal criminal jurisdictionCriminal jurisdiction
Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime...
over Indians in Indian country is complete and exclusive unless there is a federal statute deeming it otherwise or limiting it in some way. Exclusive jurisdiction is given to the tribal courts over non-major crimes committed by Indians against Indians in Indian country, as well as victimless Indian crimes . Jurisdiction is also granted, though not exclusively, to tribal courts over non-major crimes by Indians against non-Indians. In these cases, federal courts also have jurisdiction through the General Crimes Act, so jurisdiction is shared.
Tribal courts have exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
in civil cases against any Indian in Indian country. This includes cases brought against an Indian by a non-Indian in Indian country, and all cases between tribal members that arise in Indian country. Exclusive jurisdiction over tribal subject matter also belongs to the tribal courts. In divorce cases, tribal courts have exclusive jurisdiction over divorces between Indians living in Indian country. In some divorce cases involving Indians living outside Indian country, the tribal and state courts may have concurrent jurisdiction. The Indian Child Welfare Act
Indian Child Welfare Act
The Indian Child Welfare Act of 1978 is a Federal law that governs jurisdiction over the removal of Native American children from their families.-General:...
of 1978 provides for tribal jurisdiction in adoption and custody cases of Indian children who are domiciled in Indian country. Children ultimately take the domicile of their parents, or if the child is illegitimate, it takes the domicile of its mother. Tribal courts also exercise jurisdiction in adoption and custody matters of Indian children who are tribal members. In cases involving probate, tribal courts have exclusive jurisdiction over non-trust movable assets of Indians residing in Indian country.
State jurisdiction
States have limited criminal jurisdiction in relation to crimes committed in Indian country. The state exercises exclusive jurisdiction over crimes by non-Indians in Indian country, including victimless ones.In general, states exercise civil jurisdiction in cases involving non-Indians, and sometimes non-tribal members, even when these cases arise in Indian country. In divorce cases, states have jurisdiction if both parties are non-Indian and living in Indian country. In matters involving adoption and child custody proceeding between parents, the division of jurisdiction is very similar. The states only have jurisdiction over cases involving the adoption and custody of Indian children not domiciled in Indian country. In probate cases, states have jurisdiction regarding cases of non-trust estates of Indians who died while they were domiciled outside of Indian country and also in cases dealing with any land outside of Indian country.
Examples of Supreme Court interference
The progression of Indian country jurisdiction is made mainly through Supreme Court cases, such as the ones listed below.| Year | Parties Involved | Ruling | Importance | |
|---|---|---|---|---|
| Worcester v. Georgia | 1832 | Samuel Worcester; Georgia Georgia (U.S. state) Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788... |
The states had no authority to rule over the tribes; the tribes were considered as separate sovereign nations. | Establishes that tribes are different than the states. They are individual nations, which the states do not have jurisdiction over. They United States guaranteed the rights of the tribe in this case |
| Oliphant v. Suquamish Indian Tribe | 1978 | Mark David Oliphant; Suquamish Indian Tribe | Tribal courts have no jurisdiction on non-tribal members, even when they are on the reservation. | Destroyed the idea of full tribal sovereignty and allowed the courts to create policies regarding Native Americans which had been previously granted to other governments. |
| Montana v. United States | 1981 | Crow Nation; Montana | hunting Hunting Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law... and fishing Fishing Fishing is the activity of trying to catch wild fish. Fish are normally caught in the wild. Techniques for catching fish include hand gathering, spearing, netting, angling and trapping.... on tribal lands held in fee by non-Indians, the court ruled that "the exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.">Tribes could regulate any activity which has any effect on the interests of the tribes. |
Tribes can only regulate the activities of non-tribal members if they have entered in a consensual agreement, or the security of the tribe or a member of the tribe is directly at stake. |
| Nevada v. Hicks | 2001 | Floyd Hicks; Nevada | Tribal court does not have the authority of state game wardens, then it also does not have jurisdiction to regulate warden activities (such as enacting a search warrant for Hicks' home to discover illegal possession of bighorn sheep Bighorn Sheep The bighorn sheep is a species of sheep in North America named for its large horns. These horns can weigh up to , while the sheep themselves weigh up to . Recent genetic testing indicates that there are three distinct subspecies of Ovis canadensis, one of which is endangered: Ovis canadensis sierrae... heads). |
Civil suits can be brought against an official (such as a state game warden); however, the civil suit cannot be brought to tribal court, since their jurisdiction does not extend that far. |
| Sherrill, N.Y. v. Oneida Indian Nation of New York | 2005 | Oneida Indian Nation; Sherrill, N.Y. | The Supreme Court Supreme court A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court... rules that land recently purchased by the Oneida Nation can be considered Reservation land since it used to be part of their original Nation, despite complaints by Sherill, N.Y. |
Referencing the Treaty of Canandaigua Treaty of Canandaigua The Treaty of Canandaigua is a treaty signed after the American Revolutionary War between the Grand Council of the Six Nations and President George Washington representing the United States of America.... (1794) and the Non-Intercourse Act Non-Intercourse Act In the last four days of President Thomas Jefferson's presidency, the United States Congress replaced the Embargo Act of 1807 with the almost unenforceable Non-Intercourse Act of March 1809. This Act lifted all embargoes on American shipping except for those bound for British or French ports. The... (1790), it is concluded that reservation land cannot lose its reservation status without federal consent. |