New Paper on The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

Grant Christensen has posted “The Extraterritorial Reach of Tribal Court Criminal Jurisdiction” on SSRN. Here is the abstract:

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.

New Student Scholarship on Tribal Criminal Jurisdiction to Crimes Against Children

The Harvard Civil Rights-Civil Liberties Law Review has published “What about the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children” by Alison Burton.

An excerpt:

As explained in Part IV, if Congress extends tribal criminal jurisdiction to non-Indian crimes against children, challenges to this legislation are un- likely to succeed as long as Congress explicitly enacts such jurisdiction through inherent tribal sovereignty.11 Non-Indian defendants’ United States Constitutional rights will be somewhat diminished in tribal courts. How- ever, extending tribal criminal jurisdiction is still justified because criminal defendants’ rights always vary according to the sovereign state in which the crime is committed.12 Furthermore, Part IV demonstrates how tribal crimi- nal jurisdiction can be analogized to court-martial,13 another arena in which the accused is not entitled to full constitutional protections. Just as court- martial is limited to members of the military who have commited crimes, tribal jurisdiction would be limited to non-Indians who have close ties to a tribe and have commited crimes in Indian country.

Sixth Circuit Briefs in Kelsey v. Pope


Appellant Opening Brief + Appendices

NCAI Amicus Brief + Appendix

US Amicus Brief

Kelsey Brief

NACDL Amicus Brief

Reply Brief

Lower court materials here.

Federal Court Holds Little River Band Cannot Prosecute Tribal Member Crimes on Tribe-Owned Fee Land Outside of Indian Country

Here are the materials in Kelsey v. Pope (W.D. Mich.):

1 Kelsey Habeas Petition

13 LRB Response to Habeas Petition

16 Kelsey Reply

30 LRB Supplemental Memorandum

31 Kelsey Response

35 MJ R&R

36 LRB Objection

39 Kelsey Reply

41 DCT Order

Federal Court Holds Tribe May Prosecute Disenrollee

Here are the materials in Las Vegas Tribe of Paiute Indians v. Phebus (D. Nev.):

1 Complaint

1-1 Tribal Court of Appeals Opinion

8 Motion for Declaratory Judgment

10 DCT Order

An excerpt:

The Court DECLARES that the Tribe may assert criminal jurisdiction over any person qualifying as an Indian under the ICRA, as interpreted in cases such as United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), but in such a prosecution the Tribe must prove Indian status beyond a reasonable doubt, and the Tribal Court must submit the question to a jury where the crime is punishable by imprisonment, unless the jury right is properly waived, and there is no evidence that these procedures were followed as to Phebus in the cases cited. Furthermore, if the Tribe seeks to prosecute a non-member whose membership it has revoked or rejected, the Indian status analysis in such a prosecution may not rely upon political affiliation with the Tribe, but only upon actual or de facto membership in another tribe.

DOJ Publishes Notice of VAWA Pilot Program



This notice proposes procedures for an Indian tribe to request designation as a participating tribe under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, pursuant to the voluntary pilot project described in section 908(b)(2) of the Violence Against Women Reauthorization Act of 2013 (“the Pilot Project”), and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary expressions of interest from tribes that may wish to participate in the Pilot Project.

New Oregon Law Review Article on (Tribal) Criminal Jurisdiction and the Nation-State

David Wolitz has published “Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism” in the Oregon Law Review.

An excerpt:

In this Part, I argue that criminal jurisdiction on tribal lands already reflects major elements of the Bounded Pluralism approach I support, but that criminal justice in Indian Country could be improved if tribes had greater functional jurisdiction and if the federal government had greater supervisory authority to set fundamental-rights constraints on that jurisdiction.

Agenda for Harvard Law School Tribal Courts Symposium — This Thursday and Friday

Tribal Courts and the Federal System

Cambridge, MA

November 8th and 9th, 2012

Tribal Courts and Criminal Law: Assessing the Work of the Tribal Law and Order Commission

November 8, 2012

8:30–8:45 am              Introductions and Overview of Conference

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law

School, and Professor of Law, University of Washington School of Law

Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

8:45–9:30 am              Introducing the Work of the Tribal Law and Order Commission (TLOC)

Commission Chairman Troy Eid

9:30–11:30 am                        Improving Criminal Law Enforcement in Indian Country

Professor Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Honorable Theresa Pouley, Tulalip Tribal Court and TLOC Commissioner; Kristen Carpenter, Professor, University of Colorado School of Law

What are the major issues that arise in adjudication of crimes covered by the Major Crimes Act and Indian Country Crimes Act?  What is the relationship between tribal and state authorities in jurisdictions where Congress has authorized state criminal jurisdiction within Indian country?  Who is an Indian for federal criminal jurisdiction purposes?

11:30 am–12:15 pm    Break

12:15–1:45 pm                        Lunch and Keynote Address

Honorable Kevin Washburn, Assistant Secretary for Indian Affairs, U.S. Department of the Interior

2:00–3:30 pm              Tribal Criminal Jurisdiction:  Theory and Practice

Angela Riley, Professor of Law, UCLA; Professor Ron Whitener, University of Washington Public Defense Clinic; Anita Fineday, Annie E. Casey Foundation (former White Earth Tribal Judge)

What are the major jurisdictional issues that tribal courts confront?  How do tribal courts approach sentencing alternatives?  What should be the long-term plan for strengthening tribal courts?  What is being done to provide defense for indigent defendants?

3:30–3:45 pm              Break

3:45–5:00 pm              Intergovernmental Cooperation Among Tribes, States, and the United States

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law School and Professor of Law, University of Washington School of Law; Carole Goldberg, Professor of Law and Vice-Provost, UCLA; Wenona Singel, Associate Professor of Law, Michigan State University

What are the legal and practical relationships between federal, state, and tribal courts and law enforcement officials in the area of criminal law?  What are the opportunities for retrocession at the state level to return criminal jurisdiction to Indian tribes and the federal government?  How can cooperative public safety agreements be a solution to jurisdictional complications in Indian Country?

Tribal Civil Jurisdiction and Sources of Tribal Law

November 9

8:30–8:45 am              Introductions and Overview of Day 2

Robert Anderson, Oneida Nation Visiting Professor of Law, Harvard Law

School, and Professor of Law, University of Washington School of Law

Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

8:45–9:45 am              Tribal Civil Jurisdiction

Judge William C. Canby, Jr., Ninth Circuit Court of Appeals

9:45–10:15 am                        Break

10:15–11:45 am                      Tribal Civil Law Development

Judge Michael Petoskey, Pokagon Band of Potawatomi Indians; Professor Matthew Fletcher, Michigan State School of Law; Julie Kane, General Counsel, Nez Perce Tribe; Seth Davis, Climenko Fellow and Lecturer on Law, Harvard Law School

How do tribal courts approach the task of developing common law?  To what extent do they focus on tribal norms and to what extent do they borrow from state or federal law?  How do tribal courts understand their relationship to tribal councils or other legislative bodies?  How do tribal courts relate to tribal executives?

11:45 am–12:00 pm    Break

12:00–1:30 pm                        Lunch and Closing Address

Honorable Hilary Tompkins, Solicitor, U.S. Department of the Interior, Washington, D.C., The Importance of Tribal Courts in the Federal System

New Scholarship on Tribal Criminal Jurisdiction

Lindsey Trainor Golden (a former student of mine) has published “Embracing Tribal Sovereignty to Eliminate Criminal Jurisdiction Chaos” in the University of Michigan Journal of Law Reform.

From the article:

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sover- eignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal bar- riers that adversely affect tribes’ ability to prosecute crimes committed within their geographic borders.