Late last year the Indian Law and Order Commission (“Commission”) released “A Roadmap for Making Native America Safer” (“Report”), with over 40 unanimous recommendations to make Indian country safer and more just for all U.S. citizens, and to reduce the unacceptably high rates of violent crime in Indian country. The overall theme of the Report is to allow tribes to assume greater local tribal control and accountability, and to reduce federal and state jurisdiction, while respecting federal constitutional rights of all U.S. citizens. The Commission also recognized an urgent need to act immediately to eliminate the “institutionalized public safety crises” that threatens so much of Native America. At the NCAI mid-year conference in June, the advisory committee of the Attorney General’s Task Force on American Indian and Alaska Native Children Exposed to Violence, which will produce an “action blueprint” later this year, held its final hearing. Last month, when visiting the Standing Rock Sioux Reservation, President Obama highlighted the efforts his administration has made to strengthen the sovereignty of tribal courts, particularly when it comes to criminally sentencing and prosecuting people who commit violence against women.                                              

The Commission recommended that the President and Congress act immediately to give tribes the option to break free of federal and/or state prescriptive commands of criminal laws and procedure affecting public safety in Indian country, and to handle all criminal justice themselves. In particular, the Commission recommended the enactment of federal legislation offering Indian tribes, at their sole discretion, the authority to “opt out” of the existing federal Indian country jurisdiction and/or federally authorized state criminal jurisdiction, whereupon Congress would immediately recognize the tribe’s inherent authority to prosecute and punish all offenders, implicitly including non-Indian offenders, within the tribe’s Indian country, provided that tribal criminal proceedings are consistent with U.S. constitutional guarantees and subject to limited judicial review of such guarantees by a federal court of appeals. This opt-out recommendation is intended to, for example, allow tribes to unilaterally opt-out of all or part of the Major Crimes Act and Indian Country Crimes Act and, where applicable, the jurisdiction granted to states under Public Law 280.

A critical aspect of the Commission’s recommendations is to restore to tribal governments the authority to prosecute and punish non-Indians who commit crimes on their lands, effectively empowering tribes to reverse the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, which held that a tribe’s inherent sovereign power to prosecute non-Indians was implicitly preempted by the superior sovereignty of the United States and that tribal governments therefore lack criminal jurisdiction over non-Indian offenders unless authorized by Congress. As the effects of the Oliphant decision have become more apparent, Congress has shown a willingness to relax some restrictions on the inherent criminal jurisdiction of tribes. In 2004 the Supreme Court upheld Congress’ authority to lift the restrictions on tribes’ inherent criminal jurisdiction over non-member Indians, and in 2010, Congress passed the Tribal Law and Order Act (TLOA), which allows tribes greater sentencing authority. Last year, prior to the release of the Report, Congress approved a partial roll back of the Oliphant decision by recognizing and affirming the authority of tribes to prosecute non-Indians in the limited case of domestic violence. However, in doing so, it became apparent that there was a great deal of concern about the constitutional rights of defendants in tribal courts.

Indian tribes, as pre-United States governments, are not automatically subject to the Constitution’s Bill of Rights, and in 1968 Congress passed the Indian Civil Rights Act (ICRA) making tribal governments subject to almost all of the Bill of Rights, but did not include a few of the established rights perhaps the prime example being the right of an indigent defendant to a lawyer paid by the tribe. Additionally, ICRA expressly limited tribal court sentencing authority to one year of incarceration per offense.

The TLOA amended the ICRA to allow tribes to sentence criminal offenders for up to three years per offense and nine years per criminal transaction, as long as the sentencing tribe provides certain rights to the criminal defendant. Those rights are those already enumerated in the ICRA, together with several new rights specifically applicable to a criminal proceeding in which the tribe imposes a sentence above one year: (1) the right of all defendants to effective assistance of counsel; (2) the right of an indigent defendant to a licensed attorney paid by the tribe; (3) a presiding tribal judge who is licensed in any jurisdiction to practice law and trained to preside over criminal trials; (4) public availability of tribal criminal laws, rules of evidence, and rules of criminal procedures prior to the defendant being charged; and (5) the tribal maintenance of a record of the criminal proceedings, including an audio or other recording of the trial.

In the Violence Against Women Act Reauthorization Act of March, 2013 (VAWA), Congress restored a small part of tribal inherent criminal jurisdiction over non-Indians by amending the ICRA to recognize, in certain circumstances, the inherent power of tribes to opt to exercise "special domestic violence jurisdiction" over any offenders (implicitly including non-Indian offenders) who (a) commit domestic violence or dating violence, on the reservation against women with whom they have, or had, a relationship of a specific domestic, romantic, or intimate nature, such as a spouse or former spouse, cohabiting partner, or dating partner, or (b) violate certain types of protection orders within the Tribe’s reservation. The jurisdiction over non-Indians affirmed in VAWA, however, is quite narrow, and does not apply if neither the defendant nor the victim is Indian, and it applies only if the defendant has certain specific ties to the Tribe such as living or working on the reservation, or being the spouse or dating partner of a member of the Tribe or of an Indian living on the reservation.

To assure the protection of U.S. constitutional rights for non-Indians, Congress raised the bar higher for tribes who wish to exercise special domestic violence jurisdiction. A tribe must provide any defendant in a criminal proceeding the following rights: (1) all applicable rights defined in the ICRA; (2) if imprisonment of any length may be imposed, then the defendant is entitled to all rights defined in the 2010 TLOA amendments to the ICRA (enumerated above); (3) the right to a trial by an impartial jury that is drawn from sources that reflect a fair cross section of the community and do not systematically exclude any distinctive group in the community, including non-Indians; and (4) all other rights whose protection is necessary under the U.S. Constitution “in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise” the special domestic violence jurisdiction.

The VAWA amendments show Congress’s concern with protecting the victims of domestic violence, balanced with protecting constitutional rights of criminal defendants in tribal courts, especially non-Indian criminal defendants. If tribes wish to pursue a goal of more complete control of criminal law enforcement generally, as the Commission recommends, the VAWA precedent suggests a general structure that Congress might approve again, for those tribes interested in pursuing it.

Although the expanded special domestic violence jurisdiction in the VAWA will not be an available option for all tribes until March 7, 2015, tribes may apply to the U.S. Department of Justice (DOJ) to exercise the authority immediately under a pilot program. On February 6, 2014, DOJ granted three tribes (Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington, and the Umatilla Tribes of Oregon) the authority to exercise special domestic violence jurisdiction. Although the jurisdiction is limited, for the first time since 1978, these tribes have the authority to arrest, prosecute, and sentence non-Indians who commit domestic violence on their lands, and tribes are exercising this new authority. As of July 1, the Pascua Yaqui Tribe reported that 12 VAWA investigations that have lead to arrests of non-Indians, and the first trial of a non-Indian criminal defendant in tribal court is scheduled for August 19, 2014.

The provisions of the TLOA and the VAWA affirming enhanced inherent tribal criminal jurisdiction do not give the tribes criminal jurisdiction over non-Indians except in the domestic violence context, and thus are insufficient in the Commission’s view. These laws do, however, provide tribal governments an opportunity to lay the foundation for the broader reform recommended in the Commission’s Report or incremental steps such as an extension of special domestic violence jurisdiction to cover additional offenses such as violence against children.

Charlie Hobbs is a partner with the Washington, DC office of Hobbs, Straus, Dean & Walker LLP, and Tim Seward is a partner in the firm’s Sacramento office.