Reservation Legal Process Article

Tribal Law

What are tribal laws?

Tribal laws are local laws that are enacted and enforced by Native American populations within their territories. Tribal laws may apply to any person within the territory of a Native American population, whether or not that person is Native American.

Under United States law, Native Americans are referred to as “Indians”, their populations are referred to as members of “Indian tribes,” and their communities are referred to as “Indian reservations.” In the interests of both accuracy and consistency, this article uses these terms.

The website of the National Congress of American Indians (NCAI) – http://www.ncai.org – is a well-respected source of detailed information about the history and current status of Indians, Indian tribes, and Indian reservations. The NCAI’s “Tribal Nations and the United States” provides a superb introduction. It is available to read online or download for free at http://www.ncai.org/tribalnations/introduction/Tribal_Nations_and_the_United_States_An_Introduction-web-.pdf.

Why do Indian tribes have their own laws?

“Indian tribes” have always been considered unique. This is why, under the Article 1, Section 8 of United States Constitution, the Federal Congress has “the power ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In a series of three court cases between 1823 and 1832, which today are known as the “Marshall Trilogy” (after John Marshall, who was the Chief Justice at the time), the United States Supreme Court interpreted Article 1, Section 8 to mean that Indian tribes in the United States are separate political entities, but neither states nor foreign nations.

In Johnson v. M’Intosh (1823), the Court held that although Indian tribes had always been “absolute owners” of (or “sovereigns” over) their territories, the “discovery” of North America by the European colonial powers gave countries such as Great Britain (and then the United States) the authority to eliminate the tribes’ right to occupy those territories, with the result that only the federal government, and not individual American citizens, may purchase Indian land. In Cherokee Nation v. Georgia (1831), the Court held that Indian tribes are “domestic dependent nations,” essentially “wards” of the federal government. In Worcester v. Georgia (1832), the Court held that only the federal government, and not the individual state(s) in which an Indian tribe is located, has the right to apply its own laws to tribal members.

Although later United States Supreme Court cases, legislation by Congress, and policy decisions by the Federal Government have altered the ways in which Indian tribes interact with the state(s) in which they are located, the basic outlines of the relationship between Indian tribes, the federal government, and state governments remains largely the same, especially in Arizona. What this means in practice is that, wherever and whenever permitted by Congress, Indian tribes may enact and enforce their own laws.

Where does tribal law apply?

Tribal law applies in what United States law calls “Indian country.”

What is “Indian country”?

The term “Indian country” commonly refers to the lands within a federal Indian reservation. However, under United States law it has a somewhat broader definition. The Federal Criminal Code defines “Indian country” as including:

(a) all lands within the present and historical limits of any Indian reservation under the jurisdiction of the federal government, including rights-of-way running through the reservation;

(b) all dependent Indian communities (such as the pueblos in New Mexico) within the borders of the United States, whether within their original or subsequently acquired territories, and whether within or beyond the limits of a state; and

(c) all Indian allotments (such as off-reservation trusts) to which Indian title has not been extinguished.

Where is “Indian country” here in Arizona?

Most of the “Indian country” here in Arizona is located within the state’s federal Indian reservations. Today there are 21 federally recognized Indian tribes with reservations in Arizona (excluding others within the boundaries of the state that have not (yet) obtained such recognition):

Reservation                                                   Tribe(s)                                 Arizona County(ies)

Ak-Chin Indian Community                      Maricopa & Pima                       Pinal

    website: http://www.ak-chin.nsn.us

Cocopah Indian Reservation                       Cocopah                                    Yuma    

    website: http://www.cocopah.com

Colorado River Indian Reservation           Chemehuevi, Hopi,                     La Paz (+ CA)
                                                                    Mohave, & Navajo

    website: http://www.crit-nsn.gov

Fort McDowell Yavapai Nation                     Yavapai                                 Maricopa

    website: https://www.fmyn.org

Fort Mojave Indian Reservation                   Mohave                                   Mohave (+ CA & NV)

    website: http://mojaveindiantribe.com

Fort Yuma Indian Reservation                      Quechan                                 Yuma (+ CA)

    website: https://www.quechantribe.com

Gila River Indian Community                       Maricopa & Pima                   Maricopa & Pinal   

    website: http://www.gilariver.org
 
Havasupai Indian Reservation                       Havasupai                                Coconino    

    website: http://theofficialhavasupaitribe.com

Hopi Reservation                                            Hopi                                        Coconino & Navajo   

    website: http://www.hopi-nsn.gov

Hualapai Indian Reservation                          Hualapai                                  Coconino & Mohave

    website: http://hualapai-nsn.gov

Kaibab Indian Reservation                            Paiute                                      Mohave & Coconino    

    website: http://www.kaibabpaiute-nsn.gov

Navajo Nation                                                 Navajo                                 Apache, Coconino, & Navajo
                                                                                                                                  (+ NM & UT)

    website: http://www.navajo-nsn.gov

    note: the San Juan Southern Paiute Tribe is a separate federally recognized Indian tribe     within the physical boundaries of the Navajo Nation (based in Tuba City)

Pascua Yaqui Indian Reservation                   Yaqui                                             Pima    
   
    website: http://www.pascuayaqui-nsn.gov

Salt River Pima–Maricopa                            Maricopa & Pima                           Maricopa
 Indian Community        

    website: http://www.srpmic-nsn.gov

San Carlos Apache                                        Apache (Chiricahua)                Gila, Graham, & Pinal
Indian Reservation
   
    website: http://www.sancarlosapache.com

Tohono O’odham Nation                             Tohono O’odham                       Maricopa, Pima, &  Pinal

    website: http://www.tonation-nsn.gov

Tonto Apache Reservation                           Apache (Tonto)                                 Gila    

    [no website as of 2017]

White Mountain Apache                            Apache (White Mountain)              Apache, Gila, & Navajo
Reservation                             

    website: http://www.wmat.nsn.us

Yavapai-Apache Nation                            Apache (Tonto) & Yavapai                    Yavapai

    website: http://www.yavapai-apache.org   

Yavapai-Prescott Reservation                       Yavapai                                               Yavapai    

    website: http://www.ypit.com
       
When do tribal laws apply?

Tribal laws apply when an Indian tribe has “jurisdiction” over a person in Indian country. When an Indian tribe has “jurisdiction” over a person, it means that the tribe’s courts of law have legal authority over that person.

If the legal issue is a private civil matter and the tribe has jurisdiction, then the tribe’s courts of law are where a plaintiff must file the complaint or “lawsuit” (usually to obtain monetary compensation) against a defendant. If the legal issue is a public criminal matter and the tribe has jurisdiction, then the tribe’s courts of law are where the prosecution may try to convict and punish a defendant who has been accused of committing a criminal offense.

In the civil context, the major determinants of whether tribal laws apply are (a) whether the legal issue arose in Indian country and (b) whether and which of the parties to the dispute are “Indian” or “non-Indian.”

In the criminal context, the major determinants of whether tribal laws apply are (a) whether the crime was committed in Indian country; (b) whether the defendant is “Indian” or “non-Indian”; and (c) the nature of the criminal offense.

A person is “Indian” for the purposes of determining jurisdiction if that person (1) has some degree of Native American blood and (2) is recognized to be a member of an Indian community. Membership in a federally recognized Indian tribe makes a person “Indian” for the purposes of determining both civil and criminal jurisdiction.

Please note that these rules are very general rules that apply in Arizona and in some but not all other states. If you need or want legal advice about a specific civil or criminal matter related to Indian country, please contact an attorney. There are links to free and low-cost legal services elsewhere on this website.

When does an Indian tribe have civil jurisdiction?

As a very general rule (there are many exceptions):

• In a civil dispute that arose in Indian country and is between tribal members, the Indian tribe has jurisdiction.

• In a civil dispute that arose in Indian country and involves a non-Indian plaintiff and an Indian defendant, the Indian tribe has jurisdiction. Before a non-Indian plaintiff may sue an Indian defendant in state or federal court, that plaintiff must first sue the defendant in tribal court. In the language of the law, the plaintiff must “exhaust all tribal remedies” before initiating a lawsuit elsewhere.

• In a civil dispute that arose in Indian country and involves an Indian plaintiff and a non-Indian defendant, the Indian tribe has jurisdiction only if it can establish either (a) that a consensual relationship existed between the non-Indian defendant and the Indian plaintiff (such as through a mutually-binding commercial contract); (b) that the conduct in question directly impacts or threatens the political integrity, economic security, or health and welfare of the tribe; or (c) that the federal Congress has expressly authorized it. Otherwise the state (Arizona) has jurisdiction.

• In a civil dispute that arose in Indian country and involves both a non-Indian plaintiff and a non-Indian defendant, the state (Arizona) has jurisdiction.

When does an Indian tribe have criminal jurisdiction?

As a very general rule (there are many exceptions):

• When the crime was committed in Indian country and both the alleged perpetrator of the crime and the victim of the crime are Indians, both the federal government and the Indian tribe have jurisdiction over “major crimes” and the Indian tribe has jurisdiction over other crimes.

• When the crime was committed in Indian country and the alleged perpetrator of the crime is Indian and the victim of the crime is non-Indian, both the federal government and the Indian tribe have jurisdiction over “major crimes” and both the federal government and the Indian tribe have jurisdiction over other crimes.

• When the crime was committed in Indian country and the alleged perpetrator of the crime is non-Indian and the victim of the crime is Indian, the federal government has jurisdiction.

• When the crime was committed in Indian country and both the alleged perpetrator of the crime and the victim of the crime are non-Indian, the state (Arizona) has jurisdiction, unless the crime is a federal crime.

The Federal Government can prosecute crimes committed in Indian country by non-Indians in three ways: (1) under the Major Crimes Act, when the crime is an enumerated crime (such as murder) and the alleged perpetrator is Indian; (2) under the Indian Country Crimes Act, when the alleged perpetrator of the crime and the victim of the crime are neither both Indian nor both non-Indian; and (3) when the crime violates a federal law of general applicability (such as the Controlled Substances Act).

Here in Arizona, the federal government has much greater jurisdiction in Indian country than the state does. The Arizona Constitution (at Art. 20, § 4) expressly says that the people of Arizona “forever disclaim all right and title ... to all lands lying within [the state] owned or held by any Indian or Indian tribes ... and that, until the title of such Indian or Indian tribes shall have been extinguished, the same shall be, and remain, subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States.”

What sentences and fines may a tribal court impose?

Before the adoption of the Federal Tribal Law and Order Act in 2010, which amended the Indian Civil Rights Act (ICRA) of 1968, Indian tribes could impose maximum sentences of one year in jail and maximum fines of $5,000. Today, Indian tribes have the option of imposing maximum sentences of three years in jail and maximum fines of $15,000, so long as certain conditions are met (for example, the presiding judge must be a licensed attorney).

Do constitutional protections apply in Indian country?

Yes. Under ICRA, most of the rights guaranteed through the Amendments to the United States Constitution (the Bill of Rights) also apply in Indian country. Under ICRA, in exercising its powers of self-government, an Indian tribe may not:

1. make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
2. violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
3. subject any person for the same offense to be twice put in jeopardy;
4. compel any person in any criminal case to be a witness against himself;
5. take any property for a public use without just compensation;
6. deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
7.    (A) require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;
    (B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;
    (C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or
    (D) impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;
8. deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
9. pass any bill of attainder or ex post facto law; or
10. 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.

Where can I learn what the laws of each Indian tribe are?

The National Indian Law Library (NILL) of the Native American Rights Fund (NARF) maintains a Tribal Law Gateway, which has links to many Indian tribes’ constitutions and codes, at: http://www.narf.org/nill/triballaw/

Sources & Further Reading

Congressional Research Service – Tribal Jurisdiction over Nonmembers: A Legal Overview (online: https://fas.org/sgp/crs/misc/R43324.pdf)

Judicial Branch of California – An Overview of Key Federal Indian Law Cases (online: http://www.courts.ca.gov/documents/Key-Federal-Indian-Law-Cases.pdf)

National Congress of American Indians (online: http://www.ncai.org/)

National Criminal Justice Association – Criminal Jurisdiction in Indian Country (online: http://www.ncjp.org/tribal-collaboration/criminal-jurisdiction)

Tribal Law & Policy Institute – Tribal Court Clearinghouse (online: http://www.tribal-institute.org)

United States Department of Justice – Tribal Law and Order Act Report on Enhanced Tribal-Court Sentencing Authority (online: https://www.justice.gov/tribal/file/796981/download)