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Tribal Law

There are currently 567 federally recognized tribes. Federally recognized tribes possess certain inherent rights of self-government. Many tribes have enacted their own legal codes. A SANE program that provides care to a tribal entity should be aware of any tribal laws impacting that specific program. The following information will be helpful to programs that work with tribal victims.

Determining Who is American Indian/Alaska Native or a Member of a Federally Recognized Tribe

The recognition of an individual’s legal status as American Indian/Alaska Native can vary depending on a variety of factors, including whether the determination is being made pursuant to tribal law or federal law, whether the individual is a member of a federally recognized tribe, or whether any legal action is a criminal or civil case. Legal recognition of Indian status may also differ based on rules and regulations created by federal agencies to determine who qualifies for services. For example, the Indian Health Service uses the following criteria to determine eligibility: 

A person may be regarded as within the scope of the Indian Health program if he is not otherwise excluded from it by provision of law, and:

  1. Is of Indian and/or Alaska Native descent as evidenced by one or more of the following factors: 
    1. Is regarded by the community in which he lives as an Indian or Alaska Native; 
    2. Is a member, enrolled or otherwise, of an Indian or Alaska Native Tribe or group under federal supervision; 
    3. Resides on tax-exempt land or owns restricted property; 
    4. Actively participates in tribal affairs; or 
    5. Any other reasonable factor indicative of Indian descent. 
  2. Is an Indian of Canadian or Mexican origin, recognized by any Indian tribe or group as a member of an Indian community served by the Indian Health program; or 
  3. Is a non-Indian woman pregnant with an eligible Indian's child for the duration of her pregnancy through post-partum (usually 6 weeks); or is a non-Indian member of an eligible Indian's household and the medical officer in charge determines that services are necessary to control a public health hazard or an acute infectious disease that constitutes a public health hazard. 

SANE programs need to consult appropriate legal counsel in situations where determination of legal status impacts jurisdiction of sexual assault cases or services available to patients.

Federal Definition of Indian Country

The term Indian Country is defined in 18 U.S.C. § 1151 as “(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 General Crimes Act

The General Crimes Act, 18 U.S.C. § 1152, was passed by Congress in 1817. It extended federal criminal jurisdiction over crimes committed in Indian Country. It applies to cases where the offender is non-Indian but the victim is Indian. The General Crimes Act can also apply where the offender is Indian and the victim is non-Indian, the crime falls outside of the Major Crimes Act, and the offender has not already been punished by the tribe for the offense.

The Assimilative Crimes Act

The Assimilative Crimes Act, 18 U.S.C. § 13, provides that where there is not an applicable substantive federal crime, the law of the state in which the crime occurred may be incorporated into the federal criminal code in 18 U.S.C. § 1152 prosecutions. State misdemeanor offenses can also be assimilated.

Non-Indian versus Non-Indian Crimes in Indian Country

The U.S. Supreme Court in United States v. McBratney, 104 U.S. 621 (1881), held that states have exclusive jurisdiction over crimes in Indian Country involving only non-Indians. 

The Major Crimes Act

The Major Crimes Act, 18 U.S.C. § 1153, was enacted in 1885. It provides federal criminal jurisdiction over certain enumerated crimes if the defendant is Indian. It has exclusive federal jurisdiction over certain enumerated crimes such as murder, assault resulting in serious bodily injury, most sexual offenses, etc. The Major Crimes Act is the source of federal jurisdiction for crimes in which both the offender and the victim are Indians and the crime occurred in Indian Country. Tribes retain jurisdiction to prosecute Indians for the same conduct that constitutes a Section 1153 felony. In Section 1153 cases, the victim may be Indian or non-Indian. Accordingly, an Indian defendant may be prosecuted concurrently in two jurisdictions for the same offense. The Constitutional prohibition against double jeopardy does not apply because the United States and Indian tribes are separate sovereigns. 

General Federal Crimes of Nationwide Applicability

These crimes constitute a federal offense regardless of where the crime occurs and who commits the crime (Indian or non-Indian). These federal statutes apply to Indian Country independent of the Major, General, or Assimilative Crimes Acts. Examples of relevant crimes include those involving firearms, controlled substances, and VAWA crimes, such as Interstate Domestic Violence or Interstate Violation of a Protection Order. 

Public Law 280

Public Law 280 was enacted in 1953. It provides that criminal jurisdiction and limited civil jurisdiction over Indian Country was delegated from the Federal Government to six states: Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. These states are frequently referred to as “mandatory PL 280” states. There were some tribes within these six states that were specifically exempted from the law. The law also permitted nonmandatory states to opt in; these states are referred to as “optional PL 280” states. Later amendments allowed states to retrocede jurisdiction back to the Federal Government, and section 221 of the Tribal Law and Order Act of 2010 provides that tribes can ask the Attorney General to reassume concurrent jurisdiction if certain conditions are met.

Tribal Court Sentencing Authority

The Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302, was originally enacted in 1968. ICRA extended certain federal rights found in the Constitution's Bill of Rights to Indians in Indian Country. When originally passed, ICRA limited the tribal court's sentencing authority to 6 months in jail and a $5,000 fine. The maximum possible tribal court sentence was increased to 1 year in jail and a $5,000 fine via an amendment to ICRA in 1986. In 2010, passage of the Tribal Law and Order Act restored limited felony sentencing authority to tribes and allows for sentencing of up to 3 years, and $15,000 per offense, for a combined maximum sentence of 9 years per criminal proceeding. Tribes choosing to use this felony sentencing authority must guarantee certain rights, including the right to law-trained, licensed defense counsel for indigent defendants. 

Tribal Court Criminal Jurisdiction Over Non-Indians

In 1978, the U.S. Supreme Court ruled in Oliphant v. Suquamish Indian Tribe64  that tribal courts do not have criminal jurisdiction over non-Indian offenders; however, VAWA 2013 recognized tribes' inherent power to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence, or violate certain protection orders in Indian Country. In order to exercise this authority, tribes must meet several  specific criteria that include, but are not limited to, guaranteeing that defendants are afforded the rights described in the Tribal Law and Order Act of 2010 by providing:

  • effective assistance of counsel for defendants;
  • free, appointed, licensed attorneys for indigent defendants;
  • law-trained tribal judges who are also licensed to practice law;
  • publicly available tribal criminal laws and rules; and
  • recorded criminal proceedings.

In addition, tribes must provide defendants charged under SDVCJ a jury trial where the jury pool includes a fair cross-section of the community and does not systematically exclude any group. This law became effective for all tribes on March 7, 2015. (Note: Both TLOA and VAWA 2013 are completely discretionary for tribes. They may make the changes they need to exercise either of them, but absolutely do not have to.)