Indian tribe`s inherent sovereign authority Essay

INTRODUCTION: U.S Chief Justice John Marshall, in his milestone trilogy of   his decisions on Indian law in 1] Cherokee Nation v.Georgia 2] Johnson v.Mclntosh and 3] Worcester v. Georgia framed the foundation for Indian law viz. Indian tribes are under the trust protection of the federal government which stands good even today. As such, many tribes are enjoying the quasi-sovereignty status and have organized their own governments together with functional legislative, executive and judicial branches. Indian tribal courts function more or less in their Anglo-American colleagues and offer an intra-tribal tool for dispute resolution. The Supreme Court held in â€Å"Oliphant v.Suquanmish Indian Tribe â€Å"that for want of congressional action, tribes lacks inherent jurisdiction to punish outsiders.   Congress yet to legislatively recognize the Oliphant by extending jurisdiction to tribal courts to try criminally any non-Indians for the felony committed in the Indian regions This research paper will divulge how this jurisdictional predicament causes a practicable problem in United States Judiciary and possible ways and means to address the issue. INDIAN SOVEREIGN AUTHORITY TO EXERCISE CRIMINAL JURISDICTION OVER NON-INDIANS- AN ANALYSIS: Crimes against native Indians are unleashed by non-Indians on daily basis. Crimes committed by non-Indians are cognizable offence that can be prosecuted only by federal district court by federal prosecutors. Unfortunately, many federal prosecutors have abandoned their duty to pursue crimes in Indian country committed by non-Indians due to overburden. The emergence of the Indian courts owed its origin to the tribal justice systems that predate the European settlement of America. On the basis of the age old convention, Congress has recognized the sovereign authority of tribes to maintain their own courts. But, Congress has limited that sovereignty as tribal courts have little jurisdiction over non-Indians .This is mainly intended to ensure that Indians are guaranteed the same constitutional rights as other Americans. As a result, tribal courts over the last two decades have lost their elite authority to try cases involving grave felonies and to enforce criminal penalties on non-Indians. In the year 1990, Supreme Court stripped Indian tribal courts of the power to hear cases involving Indians of a different tribe. But the Senate Select Committee on Indian Affairs later voted to reinstate that right to tribes for the next two years. [1992 to 1994]. In 1968, Congress established the Indian Civil Rights Act to offer on tribes requirements akin to those found in the Bill of Rights. There are about 147 tribal courts that exercise jurisdiction over nearly two million Indians in the United States in the year 1992. Tribal courts have exclusive jurisdiction over civil cases that arise between Indians on the reservations. But, if the plaintiff or defendant is other than Indian, state courts may have a simultaneous or even exclusive exercise rights to hear the case. In, â€Å"Oliphant v.Suquamish Indian Tribe† , 435 U.S, 55 L.Ed , 2d , 98 S.Ct, 48 U.S.L.W .4210 it was held that no inherent rights is ascribed to any Indian tribal courts to prosecute and punish non-Indians for offenses committed on Indian lands. It was the contention of the Indian tribes that jurisdiction is automatically conferred on them for trying any offenses of criminal nature on non-Indians in tribal lands as Supreme court made an opinion describing Indian tribes as â€Å" quasi –sovereign entities’. However, Supreme Court has observed in the present case that whenever efforts have been exercised in the past, it has been observed that there exists no jurisdiction. The tribal is having no authority to try non-Indians as it was established by earlier judicial opinions and also according to the general view of the executive authorities. But Judge Marshall, joined by the Chief justice dissented in the above case by taking the view that the power of preserve order on the reservation was a sine quo non of sovereignty that the Suquamish originally possessed. He further noted that in the absence of positive extraction of such rights by any treaty or statue ,the tribal enjoy as a necessary aspect of their sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation. In the past years, several Supreme Court rulings have drastically delineated the power of American Indians to govern their territories. The High Court ruled in 1978 that tribal courts cannot prosecute whites or other non-Indians for some felonies committed on tribal land. In one case, the justice held that a tribal court has no jurisdiction over crimes committed on that tribe’s land by members of another tribe. There are certain rulings that restricted Indian authority in taxation and zoning. Tribal leaders argue that U.S government apparent move away from recognizing ‘inherent sovereignty â€Å"of the Indian nations, which predate the arrival of whites to this continent makes them to worry. Though, the tribal leaders were not asking to overturn the Supreme Court’s ruling in Oliphant v. Squamish Indian Tribe but they were demanding to overturn the High Court rulings in Duro V. Reina, which prohibited the Salt River Prima-Maricopa Indian Community in Arizona from prosecuting on a misdemeanor of weapons charge by an Indian man who lived in Salt River but was a member of a tribe in California. Thus, the rulings left a judicial void in states that do not assume jurisdiction over such misdemeanors and Congress temporarily restored jurisdiction to the tribes during 1990. 2.1 CRIMINAL JURISDICTION TO TRY NON –INDIANS TO COMBAT TERRORIST THREAT: In their effort to revive an amendment to the Homeland Security Act that would offer criminal jurisdiction over non-Indians to combat terrorist threats on Indian lands. But opponents were of the view that it will topple a 25-years –old Supreme Court decision â€Å" limiting and defining Indian sovereignty â€Å" and could lead to tribal power grabs which may affect of millions of non-Indians. Further, there is a proposal to reclassify the tribal governments as â€Å"states â€Å"under HSA law which facilitate tribes to receive sufficient federal funding and technical expertise to play a meaningful role in fighting terrorism. During 2003, the Senate Indian Affairs committee tried to add some amendments to homeland security bill but it was not successful as some group hit the panic button claiming that amendment would authorise control over all people for all purposes. The vested group fears that there would be other jurisdictional grabs by the tribal governments and tribes could exert authority over non-Indians by ignoring the fact that non-Indians cannot vote in tribal elections. The proposed amendment which has been officially designated as S.578 and the department itself has supported the first 12 sections of the amendment or those that would authorise the reclassification of tribal governments as states [not local government] in dealing with terrorism. But as per Heffelfinger, who is also chairman of the Attorney General Advisory Committee’s Native American issues subcommittee commented that the departments itself is not supporting section 13 , which would offer tribes the power to â€Å" enforce and adjudicate violations of civil , criminal and regulatory laws committed by any person on land under the jurisdiction of an Indian tribal government. But, as per 2000 census, non –Indians account for more than 48% of reservation residents who live on or near Indian reservations from discrimination â€Å"by state, federal or tribal government or their policies. Some critics view the proposed amendment to the Homeland Security Act violates the 1978 â€Å"Oliphant v.Suquamish Indian Tribe† rulings where Supreme Court observed that tribes do not have criminal jurisdiction to try and punish non-Indians. In real situation, the state or federal government is toothed with the power to arrest and try criminal offenders who are not Indians on Indian lands.   In other words, there is no need to arm the tribal government to initiate criminal proceedings on non-Indians on tribal lands as the state or federal government has adequate power to execute the same. [1] 2.2 OVERBURDENS OF FEDERAL COURTS: One the problem faced by tribal is that some of the felonies committed by non-Indians on tribal have been let off due to overburden of cases in federal courts and Supreme Court judgment which   had declared that non-Indians can not be prosecuted by the tribal courts. For instance, military courts do not have jurisdiction to prosecute the civilians who have infringed military’s interest. In such cases, â€Å"special assistant United States attorneys† [SAUSA’s] have the authority to prosecute such violators who have committed crimes against military personnel and property. The same strategy can be followed in the tribal cases also. Thus, the department should authorize Indian prosecutors to sue in the federal courts for the crimes committed by the non-Indians within Indian country.   2.3 USE OF MEHTAMPHETAMINE: Another issue encountered by the American tribes and tribal groups is their relentless fight against use of methamphetamine which they regard an epidemic on tribal lands. Lummi Nation of Washington, an American tribe is waging war with meth by imposing rigorous punishment to offenders. Some tribes are addressing the issue through new drug courts. Methamphetamine production and trafficking on tribal reservation with huge geographic areas or tribes adjacent to the U.S. –Mexico border is rampant. As the tribal states enjoy sovereign status, criminals are generally not subject to state jurisdiction in most of the cases. As the local law enforcement authorities have no jurisdiction in Indian country and tribal law enforcement agencies take the responsibility to enforce the relevant law enforcement functions. To combat the use of meth in tribal areas, Indian Tribes Methamphetamine Act of 2007 and Indian Tribes Methamphetamine Reduction Grants Act of 2007 were introduced in January 2007.   The legislation would permit Indian tribes to be eligible for funding through the department of Justice to exterminate the scourge of meth production, sale and usage in Native American communities. Enough safeguard measures are built in to avoid any potential misrepresentation of the above legislations. It has been clearly stated in section 2 [a] [4] of the bill , the Department of Justice’s Bureau of Justice Assistance is toothed with power to award grant funds to a state ,territory or Indian tribe to â€Å" explore ,detain and indict individuals â€Å"   involved in illegal meth activities. Further, it does not authorize a grantee state, Indian tribe or state to pursue law enforcement activities that it otherwise has short of jurisdictional authority to pursue. 2.4 PUBLIC LAW 280 Normally, states do not have jurisdiction over the internal legal of the sovereign tribal governments. Under certain circumstances, Congress has extended special exceptions this general principle. Under Public Law 280, six states were given exclusive jurisdiction over the Indian country within the state borders. Thus, states like New York, Kansas have the exclusive right over to prosecute the crime committed within the Indian country as the federal government has ceded its jurisdiction. Federal government ceded their prosecuting authority to states in these states. But it has created unfavorable situations as most states are reluctant and intransigence to cognize crime on Indian reservations seriously. Many state district attorneys are reluctant to exercise their limited resources on Indian crime. Thus, Public Law 280 has resulted in lawlessness in almost all Indian reservations. Ceding the federal authority over Indian territories to states has ended in a lacuna. It is painful to note that even if a state government has inherent authority in a particular Indian region, it sometimes lacks institutional strength to exercise authority in that region. Further, there exists always simmering tension between Indians and state governments. It is to be observed that since Worcester v.Georgia, states have no authority or very little authority over Indian country. The real reason for tension between tribal and state government is the criticism of action of state police department as they always rubbing on the wrong side of the tribal cultural practices. A study conducted by Carole Goldberg Ambrose[2] revealed that relationships between state and tribal are often got off to potholed and sometime unfeasible. Frequently, California tribal members complained that when state police tried to solve the tribal problems, they often failed as they were disrespectful to tribal sovereignty, lacked cultural compassion and always deployed excessive force. Further, if the alleged offence is a violation of generally applicable federal statutes like sedition and mail theft, the federal government is alone having exclusive jurisdiction to try the offence and natives are not exempted from such offence 2.5 OLIPHANT V. SUQUAMISH INDIAN TRIBE’- AN ANALYSIS: In, ‘Oliphant v. Suquamish Indian Tribe’ case, Supreme Court held   that as the tribal court lacks inherent jurisdiction to prosecute non-Indians for the felonies committed on Indian jurisdiction and recommended that it is the Congress to decide whether Indians tribes should finally be authorized to try non-Indians . Thus, Supreme Court decision may not be final and binding since Congress retains authority in exercise of its plenary power. Oliphant case centered around the incidents that happened on the Suquamish Reservation located near Port Madison, Washington. Indian tribes had waived all of their land claims in Washington state under the Treaty of Point Elliott which was signed in 1855 and accepted to settle on a 7300 –acre reservation located near Seattle. The tribes adopted a criminal code in 1973 and any infringement of tribal’s criminal code is prosecuted in the Suquamish Indian provisional Court. It is the claim of the tribes that they have jurisdiction to try non-Indians for any violation or infringement in their land. In support of their claim, they have displayed billboards in prominent places at the entrances to the Port Madison Reservation warning the public that entry onto the Reservation would be deemed implied consent to the criminal jurisdiction of the Suquamish tribal court and one may hilarious to note that Suquamish tribal specifically excluded non-Indians from serving on tribal court as juries. Supreme Court had placed the burden of proof on the tribe to substantiate its contention of jurisdiction. The tribe argued that its jurisdiction over non-Indians emerged involuntarily from the Tribe’s retained innate powers of government over the Port Madison Indian Reservation. Tribe has argued that flow of criminal jurisdiction is automatic over all persons on a reservation –Indian or non-Indian and is arising out of a ‘sine qua non ‘of tribal sovereignty. Supreme Court has rejected the argument of tribal claiming inherent jurisdiction on multiple grounds. Supreme Court concluded that Congress had positively expressed its intention not to grant Indian tribes the power to punish non-Indian after thoroughly examining the opinions of attorney generals, history of treaties, legislative history and district court decisions. Supreme Court once again asserted that Congress which is being law making authority is having sole discretion to decide whether the tribal can prosecute non-Indians for felonies in their land. In the Oliphant’s case, Justice Marshall joined by Chief Justice Burger took the opposite view as the Marshall believed that tribes processed the innate jurisdiction over non-Indians and that congressional action was necessary to strip off Indians of that jurisdiction. Oliphant decision was a major set back to Indian community claim of sovereignty in the following respect: It publicized that Indians were toothless to dissuade non-Indians from committing crimes against them. Tribes viewed that Supreme Court decision had indeed handcuffed their law enforcement activities. Tribes viewed the decision as a major blow on their powers to safeguard their own people. Decision culminated to an awkward situation to tribes by restricting their power to judge, prosecute or punish with tribal law and tribal courts, the non-Indians who commit felonies on tribal land. 2.6 DURO V.REINA- AN ANALYSIS: Duro v.Reina is a subsequent case after Oliphant. This case has further minimized the power of the tribal court to punish â€Å"outsiders â€Å", people who are not members of the tribe. Albert Duro was the member of one sect of Indian tribe namely Torres-Maritinez Band of Cahuilla Mission Indians. It was alleged that Duro killed a boy on the Salt River Indian reservation. Salt River Indian tribes attempted to prosecute Duro in their tribal court. The federal district court restrained the Salt River Prima –Maricopa Indian Tribe to prosecute Duro who belongs to Torres tribe. Thus, Supreme Court also concurred the federal district court view and held that Indian tribes did not have jurisdiction over Indians who were members of other Indian tribes. This made the Congress to exercise its plenary power and Supreme Court decision was amended or altered by the Congress through amendment U.S.C 1301 to authorize the tribal courts to exercise â€Å"criminal jurisdiction over all Indian and not just member of Indians. Critic’s view that Supreme Court had crushed the Indian rights is a bit of hypocritical as the Congress can always make use of its plenary power –a-type of legislative veto –to correct the intrinsic relationship as articulated by the Court. 2.7 ANALYSIS OF SURVEY OF U.S. JUSTICE DEPARTMENT: According to survey conducted by Justice Department of U.S., American Indians suffer from certain violent crimes like robbery, rape at a rate twice the national average. About 30,000 crimes of violence are committed against Indians each year. Native Indians complained that their attackers were under the influence of alcohol or meth at a greater than the national average. It is alarming to note that Indians were fatalities of interracial violence at a startling rate of 72% and 91% of sexual assaults against the tribal members. Further, offenders against Indian tribes were about 70% It is to be noted that a crime committed against an Indian by non-Indian which occurs outside of Indian country is subject to state jurisdiction and therefore is not reported in the above statistics. Thus, the above statistics reveal a disturbing picture of crimes against Indians and Indians face a disproportionately higher rate of violent crimes than any other races in U.S.A. For instance, Indian victims are reporting about 30,000 possible violent crimes to police each year and out of this, police could not solve more than 28,000 incidents or about 94% of the crimes reported remain uninvestigated or go unpunished. Further, Indians are also affected by the property crimes and victimless crimes committed by the non-Indians and these were not included in the above statistics since these were of civil nature.   The main reason for such alarming rates of criminal reports are being uninvestigated is mainly due to great distance between federal courts and tribes and overburdened law enforcing department. One of the allegations against Indian judiciary is that Indian courts do not bestow equal justice to non-Indians. For example, in Oliphant case, the Court took note of the fact that non-Indians were excluded from occupying juries’ role in Suquamish.   Thus, a doubt arises whether non-Indian constitutional right to be tried by an Indian jury could deliver unquestionable justice to the accused. The Indian Civil Rights Act of 1968 ensures basic due process protections to Indians who are tried in tribal courts and to ensure non-Indians offenders rights, the same process of protection can be extended to non-Indians. As such, non-Indians allegation that tribal courts are iniquitous may not hold good. 2.8 POSSIBLE SUGGESTIONS FOR AVOIDING OLIPHANT TYPE OF INCIDENTS IN FUTURE: Federal court is already overburdened with cases like violations under a]Patriotic Act , b]Money Laundering Act 3] RICO 4] Narcotic Offenses 5] Interstate Crimes 6] National Security Offenses 7] Stock Exchange Commission 8] Other type of Crimes .Whereas , offenses committed by non-Indian in tribal areas are of nature of minor offences like 1] reckless or speed driving 2] drunk driving 3] petty assault 4] petty theft 5] Vandalism 6] Littering   7] Parking Violations . Naturally federal prosecutors do not give more importance to these offenses and hence lion’s share of these offenses went unpunished. To instill confidence on tribal community, Congress should seriously think of creating exclusive federal courts which may be designated as â€Å"special courts â€Å" for prosecuting offenses committed on tribal by non-Indians in tribal areas.   For instance , in the District of North Dakota , Chief Judge Rodney Webb to address the problem faced   by Indians against felonies committed by non-Indians held meetings with the officials for their prosecution As per ICRA [Indian Civil Rights Act], Indian tribes may not impose any penalty or punishment which is longer than for a term of one year and a fine of $ 5000 or both. This clearly demonstrate that tribal courts have limited authority to try minor offenses like less serious felonies or misdemeanors there by leaving serious crimes to the federal government . Further, there is a misconception among non-Indians that tribal courts are not like Anglo-American tribunals. It is pertinent to note the remarks made by Justice Rehnquist in Oliphant that â€Å"some Indian trial court systems have become progressively much classy and resemble in many ways their state counter parts†. Hence, non-Indians should be properly educated and Congress should see that they are convinced by drafting a new legislation extending tribal courts power to prosecute non-Indians within the parameters designed by the Congress in this regard. One another remedy is to depute special law enforcement officer to investigate or prosecute the crime. A â€Å"special assistant district attorney â€Å"may be appointed to represent the district attorney for a particular case or a special investigating officer may be deputed to execute restricted law enforcement functions. Thus, the power to deputize is also known as a statutory grant. A statutory grant is having inherent power to specially deputize any higher officials. The deputization will be more advantageous as it would satisfy the interest of the all concerned including tribal and non-Indian offenders though the offenders will be punished under federal or state laws not under the tribal laws. CONCLUSION: De-facto immunity is being used as scapegoat by non-Indian offenders against Indians. It is really a shame that American judicial system is dissuading Indians to punish the non-Indian offenders who have committed felony in their lands under tribal criminal laws. It is real predicament that majority of the crimes against Indians by non-Indians escape punishment. The Oliphant v Suquamish Indian Tribe case is a severe blow to the Indian legitimate rights which Congress should come forward to redress. Congress should exercise its plenary power as it had done in Supreme Court decision in Duro v.Reina which was later amended or altered by the Congress through amendment U.S.C 1301 to authorize the tribal courts to exercise â€Å"criminal jurisdiction over all Indian and not just member of Indians. Further , to instill confidence on tribal community, Congress should seriously think of creating exclusive federal courts which may be designated as â€Å"special courts â€Å" for prosecuting offenses committed on tribal by non-Indians in tribal areas. One another remedy is to depute special law enforcement officer to investigate or prosecute the crime. The deputization will be more advantageous as it would satisfy the interest of the all concerned including tribal and non-Indian offenders though the offenders will be punished under federal or state laws not under the tribal laws. Deputization will assimilate all law enforcement agencies together to work unitedly.   Deputization is the need of the hour as it will bring all the parties involved under a single umbrella within the current jurisdictional. Further, as in the case of military courts which do not have jurisdiction to prosecute the civilians who have infringed military’s interest and in such cases, â€Å"special assistant United States attorneys† [SAUSA’s] have the authority to prosecute such violators who have committed crimes against military personnel and property. The same strategy can be followed in the tribal cases also. Thus, the department should authorize Indian prosecutors to sue in the federal courts for the crimes committed by the non-Indians within Indian country. BIBILIOGRAPHY Chiu, Elaine M. â€Å"Culture as Justification, Not Excuse.† American Criminal Law Review 43, no. 4 (2006): 1317+. 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