UNDERSTANDING JURISDICTION ON TRIBAL LANDS

UNDERSTANDING JURISDICTION ON TRIBAL LANDS

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II CHAPTER THREE - PART 1

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A USER-FRIENDLY PL 280 RESOURCE GUIDE

A User-Friendly PL 280 Resource Guide Team:

CopyrightŠ 2012 by Nexus Community Solutions FOURTH EDITION: December 2014

TECHNICAL & PRODUCTION EDITOR Wendy Olson TECHNICAL INPUT Alex Tortes Cindy Pierce PRODUCTION MANAGER, COVER DESIGN & ALL CREATIVE CONCEPTS Cindy Pierce

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UNDERSTANDING

JURISDICTION ON

TRIBAL

LANDS

RESOURCE GUIDE WRITTEN FOR: TRIBAL COMMUNITIES Tribal Councils Court Personnel

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Chapter Three - Part l

Evolution of Jurisdiction in Indian Country Q(,{iok ~ ~asM Referenoe chart Wouldn't it be fantastic if everyone working in Indian country could simply grab a quick and easy reference chart that clearly spells out how jurisdiction works on Indian lands? Actually there is such a chart - well, sort of. This quick reference chart is found in the US Attorneys' Manual, Title 9, Section 20.000 at 689, Indian Country Jurisdictional Summary. [1] Even though it is the best jurisdictional chart available, it certainly cannot be labeled "easy."

To illustrate the complexity of this quick reference jurisdictional chart, the following is a small selection:

Offender: Indian Victim: Non-Indian Jurisdiction: If listed in 18 U.S.C. at 1153, there is federal jurisdiction, exclusive of the state, but probably not of the tribe. If the listed offense is not otherwise defined and punished by federal law applicable in the special maritime and territorial jurisdiction of the U.S., state law is assimilated.

If not listed in 18 U.S.C. 1153, there is federal jurisdiction, exclusive of the state, but not of the tribe, under 18 U.S.C. at 1152. If the offense is not defined and punished by a statute applicable within the special maritime and territorial jurisdiction of the U.S., state law is assimilated under 18 U.S.C. at13. [2]

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Whew! That's enough to aggravate anyone . .. it begins to sound like doubletalk as it seems you are reading words without meaning! Believe it or not, though, what you just read will make a lot of sense once you understand the history of what has taken place in Indian country.

The legal framework that exists in Indian country has been built piece-by-piece ~,.,.liiiiii;,

through the years and PL 280 is just one of those pieces which added to the complexity of jurisdiction.

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AU Tangled Up With the multitude of individuals involved on Indian lands today, it can appear as though tribal, federal and state officials are playing a game of Twister â&#x201E;˘! Indeed, one US court called the existing statutory framework for Indian country jurisdiction "tangled." [3] Yet another US court pointed out how jurisdiction on Indian lands is a "complex patchwork of federal, state, and tribal law." [4] Having covered the foundational concept of tribal sovereignty, we can now move toward an understanding of jurisdiction in Indian country. In this chapter, we will follow the historical path in the development of Indian country jurisdiction, and in so doing we can begin to make sense of why the tangled and complicated jurisdictional web exists as it does today.

So, let's get started untangling this jumbled web, one knot at a time ...

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Beginning Point The beginning point in discussing the evolution of criminal jurisdiction in Indian country starts with self-governing tribal communities. We have spent a good amount of time discussing this point as we looked at tribal sovereignty, so we will not linger here too long.

"America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws ... The Indian nations had always been considered as distinct, independent political communities ... from time immemorial ... " Worcesterv. State of Georgia, 31US515, 543, 559(1832)

All too often, non-Indians fail to recognize that Indian tribes are, as mentioned in the quote above, "divided into separate nations, independent of each other ... " The tribes are individual sovereign entities, each with their own governments, and not just clumped into one big tribe. This has been true historically, and is still true today.

The fact that tribal self-governments have existed "from time immemorial" is the legal basis for tribal jurisdiction in Indian country. As we have previously discussed, this jurisdiction is inherent and not given to the tribes. Tribes have governed themselves from the very beginning.

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"It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. " McClanahan v. Arizona State Tax Commission, 411us.164, 172 (1973)

Recognize that the Indian tribes are each individual sovereign entities, having governments with their own priorities.

AhoM Therel A nation does not have to reside across an ocean for it to be a separate political entity from another nation. Having a sovereign government does not depend upon where that government sits on a map. The United States, Mexico and Canada are a good example of this as they all share one continent. Although these three nations exist on the same land mass, they are separate sovereigns, each with independent governments.

The fact that the tribes were eventually encompassed by the United States does not change the fact they are separate political entities from the US. As one Supreme Court Justice pointed out, "It is the political relation in which one government or country stands to another which constitutes it foreign to the other." [5] 56

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You may find it interesting to read Justice Thompson's discussion about the "national capacity" of Indian nations in Cherokee Nation v. Georgia, 30 US 1, 55-56 (1831)

Something New

"autonomous" -self-governing; independent; subject to its own laws only; not subject to control from outside "exclusive" -having the only right to something; shutting out all others from a part or a share

Originally, the tribes were autonomous and completely selfgoverning. The eventual arrival of the European explorers brought something brand new - something that would, in time, greatly affect jurisdiction in Indian country. This new thing, or concept, was called the "Doctrine of Discovery." Without realizing it, you have actually been introduced to it through the small sample from the US Attorneys' jurisdictional charting which you read earlier (you know, the one that sounded like double-talk). Within that brief section, the word "exclusive" was used twice to describe federal jurisdiction. It was specifically stated this way because of historical events stemming all the way back to the Doctrine of Discovery.

Doofrine of DisooverM A doctrine is a set of rules or regulations people follow - an established policy. The Doctrine of Discovery was a set of rules established between the European nations who were equally competing for new land "discoveries. " The European nations set up a type of regulation amongst themselves. The Indian nations did not acknowledge or adhere to these rules, but they found themselves indirectly affected by these international regulations.

Essentially, the Doctrine of Discovery was like a big game of Monopoly TM - only the players played for keeps! US Supreme Court Chief Justice, John Marshall, shed much light on this doctrine. He himself said it was a difficult thing to understand how nations from another part of the globe could actually make such claims. [6]

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Another justice agreed: "It may not be easy upon general reasoning to establish the doctrine, that priority of discovery confers any exclusive right to territory. . . In respect to countries, then inhabited by the natives, it is not easy to perceive how, in point of justice, or humanity... it (the Doctrine of Discovery) can be successfully vindicated." [7] But, alas, this was simply the way it was, as Chief Justice Marshall explained [8]: ~

The powers of Europe discovered different parts of the American continent at nearly the same time.

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The continent was too immense for one European power to singularly grasp it for themselves.

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Also, none of the European powers would have allowed one nation to have the monopoly.

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In an attempt to avoid bloody conflicts they established a rule they each agreed to follow.

The rule was: Whichever European nation got to the land first and claimed it, won the "right of title. " The right of title meant no other European nation could intrude on claimed land, either for settlement or to purchase land from the natives. The European nation having the right of title was the only nation who could settle on the claimed area and purchase land from the indigenous residents (original possessors). A purchase of land could only take place if the nafve inhabitants wanted to sell their land.

Cut Up the Pie Of course, all of the Europe atlons 'agree to this doctrine, because they all got a piece of the pie. They set up "feeble settlements," [9] but did not interfere with the Indian's tribal territories or self-government. The only thing regulated was between the European nations - they themselves were not allowed to break the rules and do business with the Indians that were in an area claimed by the other.

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"Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents offoreign powers, who, as traders or otherwise, might seduce them into foreign alliances.

The king purchased their (lands) when they were willing to sell, at a price they were willing to take; but never intruded into the interior of their affairs, or interfered with their selfgovernment, so far as respected themselves only. " Worcester v. State of Georgia, 31 US 547 (1832)

MonopolM Fight The Doctrine of Discovery was intended to keep everything civilized among the European powers, but it was not long before the players were fighting and contesting each others' claims. As simplistic as it sounds, it went something like this: European Nation #1: "You can't go there - that's exclusively mine!"

European Nation #2: "No! It's mine! ... make me stay out!"

European Nation #1: "Ok, I will."

That's pretty much how it was for years. Bloody conflicts after bloody conflicts continued as the imperial wars played out on the American continent. Native Americans were caught up in the mess, fighting for their own territories and also with those whom they had aligned themselves. "The English, the French, and the Spaniards, were equally competitors for their (Indian's) friendship and their aid." Tribal nations chose what they deemed prudent - "so long as their actual independence was untouched, and their right to self-government was acknowledged." [10]

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The Doctrine of Discovery did not interfere with tribal governments or the Indian's right to occupy their territories. It did establish the regulation between European sovereigns as to who could claim exclusive rights to 0

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Many have lauded the creator of the sci-fi hit Star Trek, Gene Roddenberry, as a great visionary and a man before his time. NASA even named the first space shuttle after his literary spaceship, the USS Enterprise, and the Smithsonian National Air and Space Museum proudly displays an impressive 11 foot, 200 pound scale model of the spaceship.

Another writer and man before his time was known more for his stories about a bearded old man with the curious name of "Rip Van Winkle" and a haunting headless horseman riding about, than his tale about aliens from outer space. This author, often referred to as the "Father of American Literature," is none other than Washington Irving. He was born the same year the American Revolutionary War ended, therefore, he had the opportunity to observe everyday life in early America.

Irving was a clever and witty writer who used his skills of satire to get his readers to think about serious matters. He had the unique ability to address sensitive and controversial issues through tongue-and-cheek humor. He was especially known for exposing paradoxes. One such paradox he challenged, with creative flair, was the European Powers' claim of exclusive title to Indian land through the Doctrine of Discovery. With able pen in hand, he created a world filled with hippogriff spaceships and pea-green aliens who carry their one-eyed heads under their arms.

This intriguing story is sandwiched within chapter 5 of Irving's book, A History of New York, which he wrote under the eseudonvm of "Diedrich Knickerbocker." Writing in star-trekish fashion, Irving asks his readers to suppose aliens from outer space have invaded the little planet called "Earth."

He describes these aliens as vastly superior in knowledge and power. They are also superior in their mode of transport, as they move about in spaceships called "hippogriffs." Earthlings are at their mercy as they have no defense against the alien's concentrated sunbeams and enormous moonstones. These foreign conquerors easily overpower and subdue earth's inhabitants.

As the aliens take inventory of their victory, they disappointedly find this planet is nothing but a howling wilderness filled with poor savages and wild beasts. Yet, they claim it in the name of the honorable and excellent Man in the Moon.

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In order to at least have something to show for their efforts, they snatch up the American president, the King of England, the Emperor of Hayti, the mighty Bonaparte, and the great King of Bantam. These prizes they parade before their courts "as were the Indian chiefs led about as spectacles in the courts of Europe."

"satire" -the use of sarcasm to expose human folly or vice

"paradoxes" --

As the alien victors stand before their mighty otentate, the Man in the Moon, they bow low before him, presenting him with the gift of "the five uncouth monsters" they captured from the "obscure little dirty planet."

They assure the Man in the Moon that these five really are considered important chiefs among their fellow savages. The aliens find it hard not to gawk at these captive creatures who are destitute of the common attributes of humanity: ~

inconsistencies, contradictions, absurdities

~ ~ ~

They carry their heads upon their shoulders instead of under their arms!

They have two eyes instead of one!

They are destitute of tails!

They have a variety of unseemly complexions, particularly of horrible whiteness instead of pea-green!

"pseudonym" -fictitious name, pen name, or stage name

Then, the Man in the Moon declares the inhabitants of earth incapable of possessing any property on the planet they infest. Right of title goes to the aliens who discovered the planet Earth. With right of title, the aliens invade earth's lands; seizing the most fertile territories.

"potentate" --

And then, Earthlings do something unbelievable - they actually complain about their treatment! The superior aliens scold the Earthlings:

a person who possesses great power, such as a sovereign, monarch, or ruler

"Miserable barbarians! Ungrateful wretches! Have we not come thousands of miles to improve your worthless planet?"

"allegory" -a symbolic narrative; figurative treatment of one subject under the guise of another subject

Not only are the Earthlings ungrateful, they go so far as to daringly defend their property. Therefore, completely exhausted of patience for the Earth-savages, the conquerors pour out their wrath, hunting the rebellious Earth dwellers in their highly superior hippogriffs and demolish the Earth cities with crushing moonstones.

Diedrich Knickerbocker, A History of New York (Volume 1),The Knickerbocker Press 1894. Book I, Chapter V, pp. 100-109

Certainly, Washington Irving presented a powerful al/ego(Y_. Perhaps this story should also become part of the reading in American literature classes along with his other literary works.

¡-

If you appreciated Irving's allegory, you may want to read the entire chapter, Chapter V, pages 84 - 109, of the Washington Irving's book, A History of New York. You can view his book online at the following link: http ://books.google.com/books?id=RQQhAAAAMAAJ &pri ntsec=frontcov er&source=gbs_ge_summary_r&cad=O#v=onepage&q&f=false -

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Indian CountrM The term "Indian country" is a legal term which is very important in determining jurisdiction for tribal, federal and state governments. This definition is codified today at 18 USC ยง 1151.

It is written in such a way as to clearly include all reservation lands whether created by treaty, an act of Congress, or by an executive order.

18 USCยง 1151 reads: (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 United States 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.

The first time land was specifically set aside by a European nation for Indian use was back in 1763. When the British won the French and Indian War, the French ceded lands. These lands, which had been under French control, had restricted the British colonists from western expansion. Many of the war-tom British colonists believed they had won the right, through their blood, sweat and tears to begin new settlements on these newly ceded lands. However, the British government had different ideas, and the king and his council made it clear to the colonists through the Proclamation of 1763.

This proclamation clearly stated that large sections of Britain's newly acquired lands were not to be accessible to the colonists.

The British colonists, whom the king referred to as "loving subjects under parental care of the crown," were to stay within the boundaries established through the proclamation. Anyone who settled outside of the areas prescribed by the king would be considered rebellious to the crown.

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So, what was to become of all this coveted land that had just opened up? The colonists were shocked when the King declared it as separate and protected area for the Indians. That did not sit well with many of the colonists! They had fought for these rich lands. How could they be deprived of the land and be hemmed into only selective areas? And above all, how could the King favor the Indians over them? To the British government, this arrangement made a lot of sense. They wanted to have good control and regulation over their colonies and having them in specified areas served this purpose. Also, from an economic point of view, it was beneficial "to leave the Indians unmolested so as to maximize the benefits of the fur trade." [11] The King's proclamation also established: ~

Regulation for purchasing land and trading with Indians, required non-Indians to obtain an official license from a representative of the British government.

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There was a provision for apprehending a criminal who fled into Indian territory (extradition).

The proclamation's restrictions were quickly violated as colonists knew the British parliament lacked the manpower and resources to effectively enforce these laws. As westward movement increased, so also an increase occurred in the connection between the European settlers with the Indian tribes.

Indian country was labeled as territory specifically designated for Indian tribes. __,,,,...~~-~F~rom a legal point of view "Indian country" is a

vital element in establishing whether tribal, federal and/or state jurisdiction exists.

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Endnotes - Chapter Three, Part 1: [1] United States Attorneys ' Manual, Title 9 - Criminal, Section 20.000 - Maritime, Territorial and Indian Jurisdiction, at 689 - Jurisdictional Summary. This charting is found on the U.S. Department of Justice's website at: http://www.justice.gov/usao/eousalfoia_reading_room/usam/title9/crm00689.htm See also Chapter Six, part 2 of this book on pp. 299-309 where we have reviewed the criminal jurisdiction in Indian country summary charts.

[2] This selection is taken from the chart "Where Jurisdiction has not been Conferred." PL 280 will fall under the chart "Where Jurisdiction has been Conferred by Public Law 280, 18 USC at 1162." For this same scenario oflndian offender and Non-Indian victim, the jurisdiction will read: "'Mandatory' state has jurisdiction exclusive of federal government but not necessarily of the tribe. 'Option' state has concurrent jurisdiction with the federal courts." In order to understand PL 280, it is important to first understand how jurisdiction works outside of PL 280 areas since this is the jurisdiction that was transferred.

[3] United States v. Markiewicz, 978 F.2d 786, 50 (2nd Cir.1992) " ... we must first explore the admittedly tangled statutory framework that governs the application of federal criminal laws to offenses committed on Indian territory."

[4] Dura v. Reina, 495 US 676, footnote 1 (1990) "Jurisdiction in 'Indian country,' .. . is governed by a complex patchwork of federal, state, and tribal law. " [5] Justice Thompson in Cherokee Nation v. Georgia, 30 US 1, 55 (1831). In the case of Cherokee Nation v.

Georgia the court did not decide on the case due to a supposed technicality in jurisdiction to hear such a case.

The Supreme Court recognized Indian tribes as separate and distinct political entities but were hung up on labeling them as "foreign" nations and thus denying them a forum for their case to be decided. Justice Thompson explained in his opinion (see 30 US 55-56) how the Cherokee Nation was a separate sovereign in spite of the fact their territory was within the US, specifically, within the charted limits of the state of Georgia: "Suppose the Cherokee territory had been occupied by Spaniards or any other civilized people, instead of Indians, and they had from time to time ceded to the United States portion of their lands precisely in the same manner as the Indians have done, and in like manner retained and occupied the part now held by the Cherokees, and having a regular government established there; would it not only be considered a separate and distinct nation or state, but a foreign nation, with reference to the State of Georgia or the United States?"

[6] Worcester v. State of Georgia, 31 U.S . 515, 543 (1832) [7] Story LL.D ., Joseph, Commentaries on the Constitution of the US. (1833) , Lonang Institute 2003 , 2005 electronic edition, Book I, p. 17, ยง 2 [8] Worcester v. State of Georgia, 31 U.S. 515, 544 (1832) [9]Id. [10] Id. [11] Dolin, Eric Jay, Fur, Fortune, and Empire, W.W. Norton & Company (2010), p. 121

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UNDERSTANDING JURISDICTION ON TRIBAL LANDS

Get Un-complicated!

The goal of this guide is to take the "mystery" out of jurisdiction on tribal lands and help the reader unravel the tangled jurisdictional maze that is seen in Indian Country today. Public Law 83-280 (PL 280) impacts over half of all federally recognized Tribes. PL 280 became a law quite a long time ago, yet has managed to remain elusive for over half a century. We say, ''No more hiding in the shadows or being camouflaged in highbrowed legalese!" Let's grab Public Law 280 by the collar and confront it face-to-face.

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KEY POINT

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Gives the reader the meaning of words in plain, simple terms.

Learning points that are key to understanding PL 280.

Suggestions on where to go for greater depth on a subject.

Going to the source to see what was actually said.

Sections dedicated to the guys and gals who love to know more details.

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