Native Americans,
Criminal
Jan. 13, 2025
Federal Indian law through the prism of criminal jurisdiction
See more on Federal Indian law through the prism of criminal jurisdictionFederal Indian law reflects a complex interplay between the legislative, executive, and judicial branches of the U.S. government, balancing tribal sovereignty, treaty obligations, and shared jurisdiction over crimes and governance in Indian country.





Mark Vezzola
Deputy General Counsel for the Pechanga Band of Indians

The framers of the Constitution created a three-branch system of government by assigning particular powers to each. Relations with Indian tribes were important enough to merit inclusion among the enumerated powers of Congress in Article I, Section 8, specifically granting Congress the power "to regulate commerce with foreign nations, among the several states, and with Indian tribes." What became known as the Indian Commerce Clause therefore became the source of the legislative branch's authority over Indian affairs. However, federal Indian law goes beyond Congress; it implicates the executive and judicial branches while balancing and sometimes constricting the rights of sovereign tribal nations.
Another source of federal power to regulate Indian affairs can be found in Article II, which grants the executive branch the authority to enter into treaties with other governments. The Treaty Clause merely restated a power the infant United States government had already exercised by securing an alliance with the Delaware tribe in 1778 during the American Revolution. Other European powers had previously entered into treaties with tribes, usually to acquire land or ensure peaceful relations, but the Delaware Treaty was the first of hundreds of treaties between the young United States and tribal nations.
The Supreme Court also plays a significant role in shaping federal Indian law. In a series of cases known as the Marshall Trilogy for their author, Chief Justice John Marshall, the Court issued sweeping decisions that held title to land went to the discoverer (tribes merely had a right of occupancy, like a rental lease), described the tribes as "domestic dependent nations," and found certain Georgia laws unconstitutional and therefore inapplicable on the Cherokee Reservation created by treaty in 1819. See Johnson v. M'Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). The Court continues to hear cases implicating tribal treaty rights, the constitutionality of the Indian Child Welfare Act, and the extent of tribal sovereign immunity.
If all three branches of government share the responsibility for shaping federal Indian law, how does it work in practice? An example may be helpful here. In 1881, a murder of one Lakota man by another on the Rosebud Sioux Reservation in present-day South Dakota triggered a series of events that would change and ultimately define federal Indian law, specifically criminal jurisdiction over Indians who commit crimes in Indian country, a term defined by statute to include Indian reservations, dependent Indian communities, and allotment lands. See 18 U.S.C. § 1151. Tribal law premised on restorative justice dictated that the killer, Crow Dog, must pay restitution to the family of the victim, Spotted Tail, in the form of horses, guns, and food. Under tribal law, the case was closed.
Local authorities felt Lakota justice allowed Crow Dog to get away with murder. Crow Dog stood trial for murder in district court in Deadwood, then part of the Dakota Territory. Found guilty of the crime, Crow Dog received a death sentence. Here, the story took a fascinating turn. Crow Dog's lawyer filed a writ of habeas corpus challenging his client's detention. The case eventually reached the U.S. Supreme Court, which held that the 1868 Fort Laramie Treaty the Lakota made with the federal government did not surrender the Tribe's power to govern their people according to tribal law. See Ex Parte Crow Dog, 109 U.S. 556 (1883). Crow Dog won his freedom and lived until 1912.
Some saw Ex Parte Crow Dog as allowing lawlessness to prevail in Indian country. Relying on its Indian Commerce Clause authority, congress passed the Major Crimes Act to extend federal jurisdiction over Indians who commit certain enumerated "major" crimes (e.g., murder, arson, etc.) against other Indians in Indian country. See 18 U.S.C. § 1153. Intratribal crimes in Indian country now fell under federal jurisdiction. Congress later enacted Public Law 280, which amended the Major Crimes Act by transferring criminal jurisdiction over major crimes between Indians in Indian country to certain states, including California. At the time, the federal government had little appetite or inclination to support tribal sovereignty and sought to bring Indians under state jurisdiction. Both the Major Crimes Act and Public Law 280 remain in effect.
The legal and political fallout of Spotted Tail's murder illustrates the role all three branches play in shaping federal Indian law. The president, acting through treaty commissioners under his Treaty Clause authority, negotiated the 1868 Fort Laramie Treaty with the Lakota. The Supreme Court determined that the treaty did not divest the Lakota of their power to adjudicate crimes between tribal members on the reservation. Congress, displeased with or ignorant of Lakota justice (likely both), responded with the Major Crimes Act to dole out justice under federal law for future crimes occurring under similar circumstances.
Despite the judicial precedent and legislation that impacted criminal jurisdiction in Indian country, it is imperative to remember that neither the Major Crimes Act nor Public Law 280 replaced or stamped out tribal jurisdiction over Indian versus Indian crimes in Indian country. Tribal criminal jurisdiction is concurrent with that of the federal government or with state governments subject to Public Law 280. California tribes, therefore, share concurrent jurisdiction with the state. Tribes in non-Public Law 280 states, on the other hand, share concurrent jurisdiction with the federal government.
Tribes in the twenty-first century retain the inherent sovereignty they have always enjoyed. The only difference is that today, their sovereignty coexists with that of the United States and, in certain limited cases, state governments. To be clear, the relationship between tribal nations and the United States is not a partnership; tribes are independent sovereigns, like the United States or Mexico. Moreover, the United States government, because of the Indian Commerce Clause and hundreds of Indian treaties, owes tribes a legally enforceable duty to protect land and assets held in trust for their benefit, such as reservation land and the resources that come from it.
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