Tribal Criminal Jurisdiction over Non-Indians
in the Violence Against Women Act (VAWA)
Reauthorization and the SAVE
Native Women Act

Jane M. Smith
Legislative Attorney
Richard M. Thompson II
Legislative Attorney
April 18, 2012
Congressional Research Service
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www.crs.gov
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Tribal Criminal Jurisdiction over Non-Indians in VAWA and the SAVE Act

Summary
Domestic and dating violence in Indian country are at epidemic proportions. However, there is a
practical jurisdictional issue when the violence involves a non-Indian perpetrator and an Indian
victim. Indian tribes only have criminal jurisdiction over crimes involving Indian perpetrators
within their jurisdictions. Most states only have jurisdiction over crimes involving a non-Indian
perpetrator and a non-Indian victim within Indian country located in the state. Although the
federal government has jurisdiction over non-Indian-on-Indian crimes in Indian country, offenses
such as domestic and dating violence tend to be prosecuted with less frequency than other crimes.
This creates a practical jurisdictional problem.
Legislation introduced in the 112th Congress, the Violence Against Women Reauthorization Act
(S. 1925 and H.R. 4271) and the SAVE Native Women Act (S. 1763 and H.R. 4154), would
recognize and affirm participating tribes’ inherent sovereign authority to exercise special
domestic violence jurisdiction over domestic violence involving non-Indian perpetrators and
Indian victims occurring within the tribe’s jurisdiction. It is not clear whether Congress has
authority to restore the tribes’ inherent sovereignty over non-members, or whether such authority
would have to be a delegation of federal authority.
In a series of cases, the Supreme Court outlined the contours of tribal criminal jurisdiction. In
United States v. Wheeler, the Court held that tribes have inherent sovereign authority to try their
own members. In Oliphant v. Suquamish Indian Tribe, the Court held the tribes had lost inherent
sovereignty to try non-Indians. The Court in Duro v. Reina determined that the tribes had also lost
the inherent authority to try non-member Indians. In response to Duro, Congress passed an
amendment to the Indian Civil Rights Act that recognized the inherent tribal power (not federal
delegated power) to try non-member Indians. The Violence Against Women Reauthorization and
the SAVE Native Women Act, would apparently abrogate the Oliphant ruling and “recognize and
affirm the inherent power” of the tribes to try non-Indians for domestic violence offenses.
The Supreme Court stated in United States v. Lara that Congress has authority to relax the
restrictions on a tribe’s inherent sovereignty to allow it to exercise inherent authority to try non-
member Indians. However, because of changes on the Court and, as Justice Thomas stated, the
“schizophrenic” nature of Indian policy and the confused state of Indian law, it is not clear that
today’s Supreme Court would hold that Congress has authority to expand the tribes’ inherent
sovereignty. It may be that Congress can only delegate federal power to the tribes to try non-
Indians.
The dichotomy between delegated and inherent power of tribes has important constitutional
implications. If Congress is deemed to delegate its own power to the tribes to prosecute crimes,
all the protections accorded criminal defendants in the Bill of Rights will apply. If, on the other
hand, Congress is permitted to recognize the tribes’ inherent sovereignty, the Constitution will not
apply. Instead, criminal defendants must rely on statutory protections under the Indian Civil
Rights Act. Although the protections found in these statutory and constitutional sources are
similar, there are several important distinctions between them. Most importantly, if inherent
sovereignty is recognized and only statutory protections are triggered, defendants may be
subjected to double jeopardy for the same act; may have no right to counsel in misdemeanor cases
if they cannot afford one; may have no right to prosecution by a grand jury indictment; may not
have access to a representative jury of their peers; and may have limited federal appellate review
of their cases.
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Tribal Criminal Jurisdiction over Non-Indians in VAWA and the SAVE Act

Contents
Introduction...................................................................................................................................... 1
Criminal Jurisdiction in Indian Country .......................................................................................... 2
Special Domestic Violence Criminal Jurisdiction Under VAWA Reauthorization and the
SAVE Act...................................................................................................................................... 3
Limitations on the Tribes’ Special Domestic Violence Criminal Jurisdiction........................... 3
Required Rights for Non-Indian Defendants............................................................................. 4
Inherent Tribal Sovereignty Versus Delegated Federal Authority ................................................... 5
Implications of Delegated versus Inherent Tribal Sovereignty ................................................. 7
Double Jeopardy.................................................................................................................. 8
Right to Counsel.................................................................................................................. 9
Grand Jury Indictment....................................................................................................... 11
Jury of One’s Peers............................................................................................................ 12
Limited Review By Federal Courts................................................................................... 14
Conclusion ..................................................................................................................................... 15

Tables
Table 1. Chart of Criminal Jurisdiction in Indian Country by Parties and Subject Matter .............. 2

Contacts
Author Contact Information........................................................................................................... 15

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Tribal Criminal Jurisdiction over Non-Indians in VAWA and the SAVE Act

Introduction
American Indians in general experience violent crimes at a rate much higher than the general
population.1 This trend carries over to domestic violence: American Indian women experience
domestic and dating violence at more than twice the rate of non-Indian women.2 Most of this
violence involves an offender of a different race.3 This fact creates a jurisdictional problem
because tribal courts do not have criminal jurisdiction over crimes committed within the tribe’s
jurisdiction by non-Indians.4 States generally do not have jurisdiction over such crimes either.5
Although such crimes are subject to federal jurisdiction, frequently overburdened federal
prosecutors are not able to prosecute them.6 Thus, it appears that American Indian women are left
with a higher risk of domestic violence and less protection than non-Indian women.
Proposed amendments to the Violence Against Women Act (VAWA) contained in the Violence
Against Women Act Reauthorization Act7 (VAWA Reauthorization) and the SAVE Native Women
Act8 (SAVE Act) are aimed at remedying this practical jurisdictional void. These amendments
would expand the inherent jurisdiction of tribal courts to include non-Indian on Indian crimes of
domestic and dating violence committed within the tribes’ jurisdiction.
Opponents of these amendments are concerned that, under current law, tribal courts are not
required to provide the identical constitutional protections to criminal defendants as state and
federal courts.9 The bills would provide that courts exercising special domestic violence criminal
jurisdiction shall provide to defendants “all other rights whose protection is necessary under the
Constitution of the United States in order for Congress to recognize and affirm the inherent power
of the participating tribe to exercise criminal jurisdiction over the defendant.”10 As discussed
below, it is not clear what protections the tribes must provide to exercise this power.

1 Fact Sheet: Violence Against Women in Indian Country, National Congress of American Indians 1, [hereinafter Fact
Sheet], available at http://www.ncai.org/ncai/advocacy/hr/docs/dv-fact_sheet.pdf, citing U..S. Department of Justice,
Office of Justice Programs, Census of State and Local Law Enforcement Agencies, 2000 – Tribal Law Enforcement,
2000 (January 2003, NCH 197936).
2 Fact Sheet, supra note 1 at 1, citing Violent Victimization and Race, 1993-98 NCJ176354 available at
http://www.ojp.usdoj.gov/bjs/abstract/aic.htm. These statistics are for Indian women in general and are not specific to
areas subject to tribal jurisdiction. In fact, accurate data on violence against women in Indian country are difficult to
find because data about such violence are not systematically collected by Indian tribes and there is a problem of victims
underreporting such crimes. Fact Sheet at 1.
3 Id. at 2.
4 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
5 United States v. John, 437 U.S. 634 (1978) (Major Crimes Act preempts state jurisdiction); Williams v. United States,
327 U.S. 711, 714 (1946) (federal jurisdiction over interracial crimes is exclusive of state jurisdiction).
6 S.Rept. 112-153, at 9 (2012).
7 S. 1925, 112th Cong. (2011); H.R. 4271, 112th Cong. (2012).
8 S. 1763, 112th Cong. (2011); H.R. 4154, 112th Cong. (2012).
9 S.Rept. 112-153, at 48. See Required Rights for Non-Indian Defendants, infra p.4.
10 VAWA Reauthorization, S. 1925, H.R. 4271, §904; SAVE Act, S. 1763, H.R. 4154, §201.
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Criminal Jurisdiction in Indian Country
Indian country is defined by 18 U.S.C. Section 1151 as Indian reservations, dependent Indian
communities, and allotments. Criminal jurisdiction in Indian country is complex. Depending on
the crime and the identities of the victim and the perpetrator, there can be exclusive tribal
jurisdiction, exclusive federal jurisdiction, concurrent tribal and federal jurisdiction, or exclusive
state jurisdiction. The following chart sets forth which governments have jurisdiction over crimes
in Indian country.11
Table 1. Chart of Criminal Jurisdiction in Indian Country by Parties
and Subject Matter
Crime by Parties
Jurisdiction
Statutory Authority
Crimes by Indians Against Indians


a) “Major” crimes
Federal or Tribal (concurrent)
18 U.S.C. §1153
b) Other crimes
Tribal (exclusive)
Crimes by Indians Against Non-


Indians
a) “Major” crimes
Federal or Tribal (concurrent)
18 U.S.C. §1153
b) Other crimes
Federal or Tribal (concurrent)
18 U.S.C. §1152
Crimes by Indians without Victims Tribal (exclusive)

Crimes by Non-Indians Against
Federal (exclusive)
18 U.S.C. §1152
Indians
Crimes by Non-Indians Against
State (exclusive)

Non-Indians
Crimes by Non-Indians without
State (exclusive)

Victims
Source: Derived from U.S. ATTORNEY’S MANUAL, CRIMINAL RESOURCE MANUAL 689, available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00689.htm.
Note: This chart does not apply to Indian country over which the state has taken jurisdiction pursuant to P.L.
280, 18 U.S.C. §1162.
In cases of dating and domestic violence where the offender is non-Indian and the victim is
Indian, which appear to constitute the greatest percentage of domestic and dating violence
involving Indians,12 tribal and most state courts do not have jurisdiction. Federal jurisdiction is
exclusive, unless a state has criminal jurisdiction under P.L. 280. As a practical matter, there is a
jurisdictional void for domestic and dating violence between non-Indians and Indians because
federal prosecutors frequently cannot make such crimes a priority for prosecution because of the
demands of their workload and the difficulty of investigating such crimes, which usually occur

11 P.L. 280 gave the following states criminal jurisdiction over all crimes in Indian country: California, Minnesota;
Nebraska; Oregon; Wisconsin; and Alaska. 18 U.S.C. §1162. Florida, Idaho, Montana, Nevada and Washington
assumed varied jurisdiction over Indian country in their states under sections 6 and 7 of P.L. 280. Robert N. Clinton,
Development of Criminal Jurisdiction Over Indian Lands: The Historical Perspective, 17 ARIZ. L. REV. 951, 970 n.10
(1975).
12 Fact Sheet, supra note 1, at 1.
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far away from federal investigators.13 Therefore, it is argued that domestic violence between non-
Indian perpetrators and Indian victims frequently goes unprosecuted and unpunished, and the
victims of such violence go unprotected.
Special Domestic Violence Criminal Jurisdiction
Under VAWA Reauthorization and the SAVE Act

To address the jurisdictional issue concerning domestic and dating violence involving non-
Indians and Indians, both the VAWA Reauthorization and the SAVE Act would give tribal courts
jurisdiction over domestic and dating violence between non-Indians and Indians that occur within
the tribes’ jurisdiction, provided there are sufficient ties to the Indian tribes. Special domestic
violence criminal jurisdiction would be limited to “act[s] of domestic or dating violence that
occur[] in the Indian country of the participating tribe” and violations of protection orders.14
These bills do not purport to delegate federal authority to the tribes. Rather, they would declare
that the tribes’ “powers of self-government ... include the inherent power of that tribe, which is
hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over
all persons.”15
Limitations on the Tribes’ Special Domestic Violence Criminal
Jurisdiction

The Senate Report on the VAWA Reauthorization explains that this special domestic violence
criminal jurisdiction would apply “in a very narrow set of cases over non-Indians who voluntarily
and knowingly established significant ties to the tribe.”16 In an effort to ensure that this is the
case, both bills provide for dismissal of cases on the ground that neither party to the violence is an
Indian or on the ground that both parties lack sufficient ties to the tribe. Cases will be dismissed
when the defendant files a pretrial motion to dismiss on the grounds that the alleged offense did
not involve an Indian and the tribe fails to prove that the defendant or the alleged victim is an
Indian.17 In addition, to ensure that tribal courts are exercising jurisdiction over crimes involving
persons with ties to the tribe, cases will be dismissed when the defendant files a pretrial motion to
dismiss on the grounds that the defendant and the alleged victim lack sufficient ties to the Indian
tribe and the tribe fails to establish that the defendant or victim lives in the Indian country of the
tribe; is employed in the Indian country of the tribe; or is a spouse or intimate partner of a
member of the tribe.18 Therefore, the tribes’ special domestic violence criminal jurisdiction under
both bills would be limited to domestic and dating violence occurring within a tribe’s jurisdiction
by a non-Indian against an Indian when the non-Indian or the Indian lives or works in the tribe’s

13 Fact Sheet, supra note 1 at 3; S. Rpt., supra note 4 at 9 (explaining that the distance of U.S. Attorneys from the
location of domestic violence in Indian country, coupled with a workload, that includes “addressing large-scale drug
trafficking, organized crime, and terrorism cases” results in non-Indian on Indian domestic and dating violent cases
going unprosecuted).
14 VAWA Reauthorization, S. 1925, H.R. 4271, §906 (§206(c)); SAVE Act, S. 1763, H.R. 4154, §201 (§204(c)).
15 VAWA Reauthorization, S. 1925, H.R. 4271 §904 (§204(b)); SAVE Act, S. 1763, H.R. 4154 §201 (§204 (b)).
16 S.Rept. 112-153, at 10.
17 VAWA Reauthorization, S. 1925, H.R. 4271, §904 (§204(d)(2)); SAVE Act, S. 1763, H.R. 4154, §201 (§204(d)(2)).
18 VAWA Reauthorization, S. 1925, H.R. 4271, §904 (§204(d)(3)); SAVE Act, S. 1763, H.R. 4154, §201 (§204(d)(3)).
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Indian country or the non-Indian is married to, or in an intimate relationship with, a tribal
member.
Required Rights for Non-Indian Defendants
Additionally, both the VAWA Reauthorization and the SAVE Act would purport to give tribes
criminal jurisdiction over domestic violence committed by non-Indians if the tribes provide to the
defendant “all other rights whose protection is necessary under the Constitution of the United
States in order for Congress to recognize and affirm the inherent power of the participating tribe
to exercise special domestic violence criminal jurisdiction over the defendant.”19 The meaning of
this phrase is not clear, but there are two plausible interpretations.
The Senate Committee on the Judiciary proposed in the VAWA Reauthorization Report that this
provision would require tribes to “to protect effectively the same Constitutional rights as
guaranteed in State court criminal proceedings.”20 Stepping back for a moment, as originally
conceived, the federal Bill of Rights did not apply against the states.21 It was not until passage of
the Fourteenth Amendment, and subsequent incorporation by the Supreme Court, that protections
in the Bill of Rights were applied against the states. To determine which rights should be
“incorporated,” the Court asks whether the right is “implicit in the concept of ordered liberty”22 or
required to ensure the “fundamental fairness essential to the very concept of justice.”23 Under
incorporation, all criminal procedure safeguards contained in the Bill of Rights have been applied
against the states except for the grand jury clause of the Fifth Amendment.24 It is plausible that
the above phrase from the VAWA Reauthorization and SAVE Act was intended to encompass this
same set of rights. If so, Indian tribes would be required to guarantee all the rights contained in
the Bill of Rights except for a grand jury. This would mean the addition of several protections not
currently accorded defendants in all tribal courts, including a jury of one’s peers and the right to
counsel in misdemeanor cases where the defendant faces actual imprisonment.
Alternatively, this “recognize and affirm” provision may merely require what is currently given
under the Indian Civil Rights Act and the Tribal Law and Order Act. The Senate Report states that
these statutes “protect individual liberties and constrain the power of tribal governments in much
the same ways that the Constitution limits the powers of Federal and State governments.” This
could mean that all the rights in these two statutes are deemed sufficient to permit Congress to
“recognize and affirm the inherent power” of the tribes to exercise criminal jurisdiction over non-
Indians. As shown, this would exclude several protections accorded under the U.S. Constitution
as applied against the states, including a jury of one’s peers and right to counsel in misdemeanor
cases where the defendant faces actual punishment.

19 VAWA Reauthorization, S. 1925, H.R. 4271, §904; SAVE Act, S. 1763, H.R. 4154, §201.
20 S.Rept. 112-153, at 10 (2012).
21 Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
22 Palko v. Connecticut, 302 U.S. 319, 325 (1937).
23 Lisenba v. California, 314 U.S. 219, 235 (1941).
24 McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 n.13 (2010).
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Inherent Tribal Sovereignty Versus Delegated
Federal Authority

As mentioned above, the VAWA Reauthorization and the SAVE Act would extend the tribe’s
inherent sovereignty to include criminal jurisdiction over non-Indians committing domestic or
dating violence against Indians. “The powers of Indian tribes are, in general, inherent powers of a
limited sovereignty which has never been extinguished. Before the coming of the Europeans, the
tribes were self-governing sovereign political communities.”25 The Supreme Court has recognized
that “[a] basic attribute of full territorial sovereignty is the power to enforce laws against all who
come within the sovereign’s territory.”26 Although tribes once enjoyed full sovereignty, since their
incorporation into the United States, aspects of their full sovereignty have been restricted or lost,
including the authority to punish non-Indians.27
The Supreme Court has stated, however, that Congress has authority to relax restrictions on the
tribes’ inherent sovereignty. For example, in Duro v. Reina, the Supreme Court held that Indian
tribes had lost the inherent authority to try non-member Indians.28 The Court wrote that
prosecution of a non-member Indian was “inconsistent with the Tribe’s dependent status and
could only have come to the Tribe by delegation from Congress, subject to the constraints of the
Constitution.”29 Congress passed an amendment to the Indian Civil Rights Act to provide tribes
with jurisdiction to try non-member Indians. However, rather than delegating federal authority to
the tribes, as the Supreme Court suggested, Congress “recognize[d] and affirm[ed] in each tribe
the inherent tribal power (not delegated federal power) to prosecute non-member Indians.”30 In
United States v. Lara, the Court considered whether a non-member Indian defendant who was
tried and convicted in tribal court could be tried for the same conduct in federal court or whether
the double jeopardy clause prohibited the federal prosecution.31 Based on the language of the
statute and its legislative history, which indicated congressional intent to affirm and acknowledge
the tribes’ inherent authority, the Court concluded the tribal court exercised its own non-federal
authority in trying the defendant.32 Because the tribe and the federal government were exercising
different authorities in prosecuting the defendant, the double jeopardy clause did not apply.33 The
majority also wrote broadly that the Constitution authorized Congress to relax the restrictions on
the tribes’ inherent authority to allow tribes to try non-member Indians.34
The VAWA Reauthorization and the SAVE Act would purport to exercise this congressional
authority and expand the inherent sovereign authority of tribes to include the authority to try

25 United States v. Wheeler, 435 U.S. 313, 322 (1978) (internal quotation marks and citations omitted).
26 Duro v. Reina, 495 U.S. 676, 685 (1990).
27 Oliphant, 435 U.S. 191, 210 (“By submitting to the overriding sovereignty of the United States, Indian tribes
therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable
to Congress.”).
28 Duro, 495 U.S. at 679.
29 Id. at 686.
30 United States v. Lara, 541 U.S. 193, 199 (2004) (internal quotation marks omitted).
31 Id. at 196.
32 Id. at 199.
33 Id. at 210.
34 Id.
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defendants involved in non-Indian on Indian domestic and dating violence. It is unclear whether
Congress has this authority.
In Oliphant v. Suquamish Indian Tribe, the Supreme Court implicitly recognized that prior to
“submitting to the overriding sovereignty of the United States” Indian tribes possessed the power
to try non-Indians.35 The power to try non-Indians, therefore, is an aspect of inherent sovereignty
which the tribes lost, like the power to try non-member Indians. In Lara, the majority opinion
concluded that the Constitution authorized Congress to relax the restrictions on tribes’ inherent
authority to try non-member Indians.36 It could be argued that because non-member Indians and
non-Indians are both outsiders to the tribe, there appears to be no reason to distinguish Congress’s
authority to relax restrictions on the tribes’ inherent sovereignty to try non-member Indians from
its authority to relax restrictions on the tribes’ authority to try non-Indians. In other words, if the
tribe can exercise inherent authority over non-member Indians, it appears it would be able to
exercise inherent authority over non-Indians.
In his concurrence, Justice Kennedy took issue with the majority’s statement that the Constitution
authorized Congress to relax the restrictions on the tribes’ inherent authority and subject non-
members to inherent tribal criminal authority.37 He questioned whether Congress has authority to
subject citizens to a sovereign outside the structure of the Constitution.38 The Constitution is
premised on consent of the governed, he wrote.39 The Constitution established a system of two
sovereigns—the nation and the state—to which the citizen owes duties and against which the
citizen has rights.40 Justice Kennedy wrote that by amending the Indian Civil Rights Act to extend
inherent tribal criminal jurisdiction over non-member Indians, “the National Government seeks to
subject a citizen to the criminal jurisdiction of a third entity to be tried for conduct occurring
wholly within the territorial borders of the Nation and one of the States. This is unprecedented.
There is a historical exception for Indian tribes, but only to the limited extent that a member of a
tribe consents to be subjected to the jurisdiction of his own tribe.”41 Justice Kennedy, therefore,
seems to believe that Congress may not have authority to subject non-member citizens to the
criminal jurisdiction of tribes, extra-constitutional sovereigns, to which they have not consented.
If Congress does not have authority to subject citizens to inherent tribal criminal authority, it is
possible that the courts would uphold tribal authority to try defendants involved in non-Indian on
Indian domestic and dating violence as a delegation of federal authority. This is what Justice
Souter would have done in Lara.42 He, with Justice Scalia, dissented because they believed that
prior precedent referring to the need for Congress to delegate authority to the tribes to try non-
member Indians was binding43 and that, by virtue of their dependent status, tribes simply cannot
exercise inherent authority to try non-members.44 To fulfill Congress’s intention to fill the

35 Oliphant, 435 U.S. at 210.
36 Lara, 541 U.S. at 200.
37 Id.
38 Id. at 212.
39 Id.
40 Id.
41 Id.
42 Id. at 231.
43 Id. at 227
44 Id. at 231.
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jurisdictional void created by Duro, they would have found that Congress delegated federal
authority to the tribes to try non-member Indians.
Although the Supreme Court stated in Lara that Congress has authority to relax restrictions on the
tribes’ inherent authority so that they may try non-member Indians, it is not clear that today’s
Court would reach the same result. Of the five Justices signing on to that statement, just two are
on the Court today.45 Justices Kennedy and Thomas expressed doubt about whether Congress had
that authority,46 and Justices Souter and Scalia affirmatively believed Congress did not have that
authority.47 Indian law is full of contradictions and confusion. As Justice Thomas wrote in his
concurrence, “Federal Indian policy is, to say the least schizophrenic. And this confusion
continues to infuse federal Indian law and our cases.”48 Therefore, it is not clear that the Court
considering a tribal court conviction under these bills would find that Congress has the authority
to expand the inherent sovereignty of tribes to try non-Indian defendants.
Implications of Delegated versus Inherent Tribal Sovereignty
The dichotomy between delegated and inherent power of tribes has important constitutional
implications. If Congress is deemed to have delegated to the tribes Congress’s own power to
prosecute crimes, the whole panoply of protections accorded criminal defendants in the Bill of
Rights will apply.49 If, on the other hand, Congress is permitted to recognize the tribes’ inherent
sovereignty, so that the tribes are exercising their own powers, the Constitution will not apply.50
Instead, criminal defendants must rely on statutory protections under the Indian Civil Rights Act
or those protected under tribal law. Although the protections found in federal statutory and
constitutional sources are similar, there are several important distinctions between them. Most
importantly, if inherent sovereignty is recognized and only federal statutory protections are
triggered, defendants (1) may be subjected to double jeopardy for the same act; (2) may have no
right to counsel in misdemeanor cases if they cannot afford one; (3) may have no right to
prosecution by a grand jury indictment; (4) may not have access to a representative jury of their
peers; and (5) may have limited federal appellate review of their cases.
Additionally, although the Indian Civil Rights Act (ICRA) covers many of the same protections
found in the U.S. Constitution, the same protections are not always given the same meaning. For
instance, the terms “due process” and “equal protection” are construed with regard to the
“historical, governmental and cultural values of an Indian tribe.”51 As such, these rights can
function much differently than they do in federal courts.

45 Justices Breyer and Ginsburg were among the majority.
46 541 U.S. at 212 (Kennedy); 541 U.S. at 215 (Thomas).
47 541 U.S. at 231.
48 Id. at 219.
49 Duro v. Reina, 495 U.S. 676, 686 (1990) (“Had the prosecution been a manifestation of external relations between
the Tribe and outsiders, such power would have been inconsistent with the Tribe’s dependent status, and could only
have come to the Tribe by delegation from Congress, subject to the constraints of the Constitution.”).
50 Talton v. Mayes, 163 U.S. 376 (1896) (holding that Fifth Amendment did not apply to the Cherokee nation); Nevada
v. Hicks, 533 U.S. 353, 383 (2001) (“[I]t has been understood for more than a century that the Bill of Rights and the
Fourteenth Amendment do not of their own force apply to Indian tribes.”).
51 Tom v. Sutton, 533 F.2d 1101, 1105 n.5 (9th Cir. 1976).
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Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or limb[.]”52 In general, the Double
Jeopardy clause protects an individual from being subjected twice to the perils of trial for the
same offense.53 The purpose of the Double Jeopardy Clause was best framed by Justice Black in
Green v. United States:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of
jurisprudence is that the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an offense, thereby subjecting him to
embarrassment, expense, and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that even though innocent he may
be found guilty.54
There are three broad classes of cases to which the clause applies: (1) a second prosecution for
the same offense after an acquittal; (2) a second prosecution for the same offense after a
conviction; and (3) multiple punishments for the same offense.55 To determine if two prosecutions
are for the “same offense” (and thus barred by the clause), a court will ask whether the elements
of the two crimes are the same.56 However, even in instances in which two acts constitute the
“same offense” under this elements test, separate prosecutions are not prohibited when different
sovereigns exert criminal jurisdiction.
Under this dual sovereignty doctrine, the Supreme Court has ruled that “an act denounced as a
crime by both national and state sovereignties is an offense against the peace and dignity of both
and may be punished by each.”57 As such, a defendant may be subjected to two prosecutions for
the same offense by two different sovereign governments. This doctrine was extended to the tribal
context in United States v. Wheeler.58 There, the Court had to determine if the Double Jeopardy
Clause barred the prosecution of an Indian in federal court when he had previously been
convicted in tribal court for a lesser included offense arising out of the same incident.59 This
question hinged on whether the tribe’s authority to prosecute its own members was inherent or
delegated. If it were exercising inherent authority, the tribe would be deemed a sovereign, the
dual sovereignty rule would apply, and the Double Jeopardy Clause would not bar a second
prosecution for the same offense.60 However, if the tribe were exercising delegated authority from
the federal government, its power would not be sovereign, but merely derivative of Congress’s

52 U.S. CONST. amend. V.
53 Green v. United States, 355 U.S. 184, 187 (1957).
54 Id.
55 United States v. Difrancesco, 449 U.S. 117, 129 (1980).
56 Brown v. Ohio, 432 U.S. 161, 166 (1977) (applying the Blockburger test, which is used to test whether two offenses
are sufficiently distinguishable to allow for cumulative punishment) (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)).
57 United States v. Lanza, 260 U.S. 377, 382 (1922).
58 United States v. Wheeler, 435 U.S. 313 (1978).
59 Wheeler, 435 U.S. at 314.
60 Id. at 316-17
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power. Under this approach, the dual sovereignty rule would not apply, and a second prosecution
would be barred.61
The Court ultimately recognized that Indian tribes may have been divested of some powers of
sovereignty, but have retained certain aspects of sovereignty, including criminal jurisdiction over
its own members.62 Because of this dependent status, the Court explained, the tribes’ sovereignty
“exists only at the sufferance of Congress.”63 Because Congress had been silent as to tribal
jurisdiction over their own members, the Court concluded that they retained this power.
Additionally, the Court relied on the fact that there was no express grant of criminal jurisdiction
to the tribes to try their own members, further supporting the theory that the tribes were
exercising pre-existing sovereign powers rather than powers delegated from Congress. By
deeming this inherent power, the tribe’s prosecution of the defendant did not violate the Double
Jeopardy Clause.
There are various Double Jeopardy implications for accepting either the inherent sovereignty or
delegation theories. If tribal jurisdiction is extended to non-Indians under inherent sovereignty,
any non-Indian may be subject to multiple prosecutions in tribal and federal courts, as the dual
sovereignty doctrine will preclude application of the Double Jeopardy Clause. Conversely, as
observed in Wheeler, under the delegation theory, a prosecution by a tribe for a minor offense
may bar prosecution by the federal government for a more serious federal crime.64 If a tribal
prosecution were to conclude before a federal case, under the delegation theory, this would
preclude an imposition of sentence in the federal prosecution, usually for a more serious
punishment under federal law. Further complicating the issue, under the Indian Civil Rights Act,
tribes may only sentence a defendant for a maximum prison term of three years.65 If that
prosecution concludes first, that will be the maximum penalty the defendant may be sentenced to
(as long as both prosecutions would be for the “same offense”).
Right to Counsel
The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall enjoy the
right ... to have the Assistance of Counsel for his defense.”66 The primary purpose of the right to
counsel is to ensure the defendant is accorded a fair trial.67 To protect this fundamental right, the
Supreme Court has required that both federal and state governments provide counsel when the
defendant cannot afford one. The Court observed that this “noble ideal cannot be realized if the

61 Id. at 321-22.
62 Id. at 326.
Moreover, the sovereign power of a tribe to prosecute its members for a tribal offense clearly does
not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent
status. The areas in which such implicit divestiture of sovereignty has been held to have occurred
are those involving the relations between an Indian tribe and non-members of the tribe. ... And as
we recently held, they cannot try non-members in tribal courts.
Id. (internal citations omitted).
63 Id. at 323.
64 Wheeler, 435 U.S. at 318.
65 25 U.S.C. §1302(b).
66 U.S. Const. amend VI.
67 See Gideon v. Wainright, 372 U.S. 335 (1963).
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poor man charged with crime has to face his accusers without a lawyer to assist him.”68 However,
counsel need not be provided at no cost in every case. The court must determine if the case will
result in actual imprisonment. If so, the defendant is entitled to counsel.69 If the criminal offense
permits imprisonment, but the judge determines that such an imposition will not occur in that
case, the defendant is not provided free counsel.70
The right to counsel in tribal courts is handled under a different scheme. The Indian Civil Rights
Act requires that Indian tribes may not “deny to any person in a criminal proceeding the right ...
at his own expense to have the assistance of counsel for his defense.”71 Because the United States
Constitution does not apply to Indian tribes, the tribal courts are not required under the Sixth
Amendment to provide indigent defendants counsel in all cases where the defendant faces actual
imprisonment.72 The Tribal Law and Order Act of 2010, however, requires Indian tribes to
provide free counsel to defendants for crimes with a sentence of more than one year.73 As such,
this leaves indigent persons facing less than one year of imprisonment in a tribal prosecution
potentially without counsel.
Moreover, denying the accused the right to counsel does not simply affect his ability to defend
himself in court. Besides the trial setting, there are other complications that could arise from not
providing counsel to all of the accused, especially in the interrogation context. For example, as
part of the Miranda warnings, police are required to warn a suspect that he has the right to an
attorney, and will have one appointed to him if he cannot afford one.74 As the Court noted in
Miranda v. Arizona:
If an individual indicates that he wishes the assistance of counsel before any interrogation
occurs, the authorities cannot rationally ignore or deny his request on the basis that the
individual does not have or cannot afford a retained attorney. The financial ability of the
individual has no relationship to the scope of the rights involved here. The privilege against
self-incrimination secured by the Constitution applies to all individuals.75

68 U.S. CONST. amend VI; Gideon, 372 U.S. at 344.
Not only these precedents but also reason and reflection require us to recognize that in our
adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious
truth. Governments, both state and federal, quite properly spend vast sums of money to establish
machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed
essential to protect the public’s interest in an orderly society. Similarly, there are few defendants
charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and
present their defenses.
Id.
69 Argersinger v. Hamlin, 407 U.S. 25, 36 (1972).
70 Scott v. Illinois, 440 U.S. 367, 373-74 (1979).
71 Tribal Law and Order Act of 2010, P.L. 111-211, §234, 124 Stat. 2261, 2280 (codified at 25 U.S.C. 1302 (a)(6)).
72 See Duro v. Reina, 495 U.S. 676, 694 (1990) (“The Indian Civil Rights Act of 1968 provides some statutory
guarantees of fair procedure, but these guarantees are not equivalent to their constitutional counterparts. There is, for
example, no right under the Act to appointed counsel for those unable to afford a lawyer.”).
73 25 U.S.C. §1302 (c)(2).
74 Miranda v. Arizona, 384 U.S. 436, 472 (1966).
75 Id.
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Once the accused invokes his right to counsel under Miranda, an interrogation must stop until an
attorney is present.76 This right would be significantly curtailed if tribal police were not required
to provide the accused a lawyer if he invoked this right.
Additionally, by not providing counsel in a tribal prosecution, evidence obtained in that forum
might not be admissible in a later federal prosecution. In United States v. Ant, the defendant
pleaded guilty to manslaughter in tribal court and was sentenced to six months imprisonment.77 A
federal indictment was then brought against him for the same crime. The prosecution sought to
admit into evidence his guilty plea from the tribal prosecution. The U.S. Court of Appeals for the
Ninth Circuit ruled that the plea was inadmissible, as it was obtained in violation of the
defendant’s Sixth Amendment right to counsel.78 In particular, Ant was not afforded the
opportunity to have appointed counsel; did not make a knowing and intelligent waiver of that
right; and was not made aware that his guilty plea could be used in a later prosecution. Although
the Court left untouched the tribal prosecution, it would not permit evidence obtained in violation
of the Constitution into evidence.79
As one observer has noted, over the years, Congress and the executive branch have made efforts
to increase tribal prosecutions.80 With this increase comes a greater need for public defenders. If
Congress expands tribal jurisdiction over non-Indians, it may have to reconsider putting the
burden of obtaining counsel on the accused in misdemeanor prosecutions.
Grand Jury Indictment
The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment of indictment of a Grand Jury.”81 A grand jury is an
investigatory body of citizens who are brought together to decide whether there is enough
evidence to bring formal charges against an individual.82 Historically, grand juries were seen as a
buffer between the accuser and the accused, preventing the arbitrary exercise of government
power.83 As apparent from the constitutional text, not all criminal cases must be initiated by a
grand jury, but only those for “infamous crimes.” Rule 7 of the Federal Rules of Criminal
Procedure requires that any crime that is punishable by death or imprisonment for more than one
year (felony) must be prosecuted by a grand jury indictment.84

76 Edwards v. Arizona, 451 U.S. 477, 485 (1981).
77 United States v. Ant, 882 F.2d 1389, 1394 (9th Cir. 1989).
78 Id. at 1396.
79 Id.
80 Robert T. Anderson, Criminal Jurisdiction, Tribal Courts, and Public Defenders, 13 KAN. J.L. & PUB. POL’Y 139,
145 (2003).
81 U.S. CONST. amend V. For a comprehensive treatment of federal grand juries, see CRS Report 95-1135, The Federal
Grand Jury
, by Charles Doyle.
82 United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).
83 See Wood v. Georgia, 370 U.S. 375, 390 (1962) (“Historically, this body has been regarded as a primary security to
the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of
standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to
determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal
ill will.”).
84 Fed. R. Crim. P. 7. This rule was an attempt to distill and capture Supreme Court cases construing the Fifth
Amendment grand jury right. See Ex parte Wilson, 114 U.S. 417 (1885) (holding that potential term of fifteen years of
(continued...)
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Unlike in federal court, in tribal prosecutions there is neither a constitutional nor federal statutory
right to a grand jury indictment. In the seminal case Talton v. Hayes, the Supreme Court held that
the right to prosecution by grand jury indictment contained in the Fifth Amendment did not apply
against the tribes.85 The Court reasoned that because the Cherokee nation was constituted before
the founding of America, protections in the United States Constitution could not logically apply
to the tribes.86 Likewise, the Indian Civil Rights Act does not contain a statutory requirement for a
grand jury indictment for felonies. With neither constitutional nor statutory protections, the
accused in tribal court must submit to the criminal practices of that particular tribe. However, in
the context of jurisdiction over non-Indians, if Congress is deemed to have delegated its power to
the tribes, the grand jury requirement along with the other safeguards of the Constitution will
apply in tribal prosecutions.
Jury of One’s Peers
The right to a jury trial has a long historical pedigree in Anglo-American tradition, dating back to
the Magna Carta and before.87 This right was imported from England by the American colonists,
and found its place in the Sixth Amendment, which provides: “In all criminal prosecutions, the
accused shall enjoy the right to a ... public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.” Like the right to a grand jury, the right to a jury
trial relied on a body of one’s peers to protect them against unrestrained and arbitrary government
power.88
Not long after passage of the Fourteenth Amendment, the accused began attacking the racial
composition of juries as a violation of the Equal Protection Clause. In Strauder v. West Virginia,
the Supreme Court held that West Virginia’s statute that required that a jury consist of only white
men was a violation of the black defendant’s right to equal protection of the law.89 Since then,
there have been innumerable equal protection challenges concerning the racial make-up of
juries.90 Along these lines, in 1942, the Court observed that “the proper functioning of the jury
system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of
the community.’”91 This has come to be known as the “fair cross-section” requirement.92

(...continued)
hard labor was an “infamous crime.”); Mackin v. United States, 117 U.S. 348 (holding that potential term of
imprisonment of two years was an “infamous crime”).
85 Talton v. Hayes, 163 U.S. 376, 384 (1896). Although the Supreme Court has since applied many of the protections
for criminal defendants contained in the Bill of Rights against the states through Fourteenth Amendment incorporation,
the grand jury requirement has not been incorporated and thus does not apply in state prosecutions. Hurtado v.
California, 110 U.S. 516, 538 (1884).
86 Talton, 163 U.S. at 383-84.
87 Thompson v. Utah, 170 U.S. 343, 349 (1898) (citing JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES §1779).
88 Id. (“Those who emigrated to this country from England brought with them this great privilege “as their birthright
and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side
against the approaches of arbitrary power.”) (citation and internal quotation marks omitted).
89 Strauder v. West Virginia, 100 U.S. 303, 310 (1879).
90 See, e.g., Neal v. Delaware, 103 U.S. 370 (1880) (holding that discriminatory administration of jury selection laws
violated the equal protection clause); Swain v. Alabama, 380 U.S. 202, 221 (holding that preemptory challenge of black
jurors was not per se invalid under the equal protection clause).
91 Glasser v. United States, 315 U.S. 60, 85 (1942) (quoting Smith v. Texas, 311 U.S. 128, 130 (1940)).
92 Taylor v. Louisiana, 419 U.S. 522, 531 (1975).
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Generally, the prosecution and defense may remove an individual from the jury using a
peremptory challenge without having to explain the reason for doing so.93 But the Court in Batson
v. Kentucky
held that peremptory challenges based solely on account of race are prohibited by the
equal protection clause.94
Under the Indian Civil Rights Act, “[n]o Indian tribe in exercising powers of self-government
shall ... deny to any person accused of an offense punishable by imprisonment the right, upon
request, to a trial by jury of not less than six persons.”95 This requirement meets the constitutional
minimum of a six member jury,96 but it does not require an impartial one. This could pose equal
protection problems. For example, as one observer notes, tribal courts are not required to allow
non-members to sit on juries.97 To provide vastly different forms of constitutional protections to
similarly situated people simply based on race is the problem the equal protection clause was
designed to prevent.98 The Court’s hesitation to submit non-Indians to an Indian jury was evident
in Oliphant. In commenting on the inverse situation—Indians being tried by a non-Indian jury—
the Court noted that Indians were being tried “not by their peers, nor by the customs of their
people, nor the law of their land, but by … a different race, according to the law of a social state
of which they have an imperfect conception.”99
Although these possible equal protection problems have been raised, the Supreme Court has yet
to squarely address this issue in the tribal context. If tribal criminal jurisdiction is extended to
cover non-Indians under the VAWA Reauthorization or the SAVE Native Women Act, the tribes
may have to reconstitute their jury system to provide a more representative jury for non-Indian
defendants.

(...continued)
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the
Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a
jury is to guard against the exercise of arbitrary power—to make available the commonsense
judgment of the community as a hedge against the overzealous or mistaken prosecutor and in
preference to the professional or perhaps overconditioned or biased response of a judge. This
prophylactic vehicle is not provided if the jury pool is made up of only special segments of the
populace or if large, distinctive groups are excluded from the pool. Community participation in the
administration of the criminal law, moreover, is not only consistent with our democratic heritage
but is also critical to public confidence in the fairness of the criminal justice system. Restricting
jury service to only special groups or excluding identifiable segments playing major roles in the
community cannot be squared with the constitutional concept of jury trial.
Id.
93 Swain, 380 U.S. at 220.
94 Batson v. Kentucky, 476 U.S. 79, 89 (1986).
95 25 U.S.C. §1302(10).
96 Williams v. Florida, 399 U.S. 78, 102-03 (1970).
97 Sam Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory
Abrogation of Oliphant
, 57 U.C.L.A. L. REV. 553, 579 (2009).
98 Batson, 476 U.S. at 86 (“Purposeful racial discrimination in selection of the venire violates a defendant’s right to
equal protection because it denies him the protection that a trial by jury is intended to secure. ‘The very idea of a jury is
a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is,
of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.’”) (internal
citation omitted).
99 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 211 (1978) (quoting Ex parte Crow Dog, 109 U.S. 556, 571
(1883)).
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Limited Review By Federal Courts
There are significant differences in appellate review of criminal prosecutions between tribal and
federal courts. Although in 1894 the Supreme Court held in McKane v. Durston that the due
process clause does not create a constitutional right to appeal in a criminal case,100 there are
numerous statutory avenues for appellate review in federal prosecutions. For example, under 18
U.S.C. Section 3742, a defendant may appeal a decision of a federal trial court if the sentence was
imposed in violation of the law or an incorrect application of the sentencing guidelines.101
Criminal decisions in tribal courts, on the other hand, are not subject to direct appellate review. In
Santa Clara Pueblo v. Martinez, the Supreme Court was asked to determine what forms of review
may be granted from a tribal court ruling.102 The Court observed that, after balancing the
competing interests of “preventing injustices perpetrated by tribal governments” with “avoiding
undue or precipitous interference in the affairs of the Indian people,” Congress chose habeas
review as the sole form of relief.103 Generally speaking, the writ of habeas corpus requires any
government authority who is holding (habeas) a person (corpus) in custody to produce that person
to the court in order to determine the legality of his detention.104 In addition to the traditional
custody requirement, under ICRA, defendants may only seek federal habeas review when they
have exhausted all tribal remedies.105
There are several potential defects with applying the habeas approach to cases over non-Indians.
First, a writ of habeas corpus, as pointed out by Justice White’s dissent in Santa Clara Pueblo,
can only be invoked when the defendant is in custody.106 This will preclude any appeal to federal
court that entails a fine or where the prison term has already been served. Second, protections
under ICRA will primarily be construed and enforced in tribal forums.107 Important civil rights
such as equal protection and due process will be construed by tribal courts, which may not be
bound by the U.S. Constitution. With habeas as the only avenue of review, federal oversight
accorded criminal defendants might be limited. In light of this, Congress may want to reconsider
using habeas as the sole form of review if tribal criminal jurisdiction is extended over non-Indians
under the VAWA Reauthorization or the SAVE Native Women Act. Authorizing the same federal
appellate review as is received in federal courts could close this gap.

100 McKane v. Durston, 153 U.S. 684, 687 (1894).
An appeal from a judgment of conviction is not a matter of absolute right, independently of
constitutional or statutory provisions allowing such appeal. A review by an appellate court of the
final judgment in a criminal case, however grave the offence of which the accused is convicted,
was not at common law and is not now a necessary element of due process of law. It is wholly
within the discretion of the State to allow or not to allow such a review.
Id.
101 18 U.S.C. §3742.
102 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 67 (1978).
103 Id. at 66-67.
104 For an overview of habeas corpus, see CRS Report RL33391, Federal Habeas Corpus: A Brief Legal Overview, by
Charles Doyle.
105 25 U.S.C. §1303. This same exhaustion requirement must be met in order for a defendant prosecuted in state court
to seek federal habeas relief. 28 U.S.C. §2254(b).
106 Santa Clara Pueblo, 436 U.S. at 74 (White, J., dissenting).
107 Id. at 65 (“Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of
disputes affecting important personal and property interests of both Indians and non-Indians.”).
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Conclusion
Supporters of the VAWA Reauthorization and the SAVE Act assert there is a significant problem
of domestic and dating violence against American Indian women. Currently, although tribes may
prosecute Indian perpetrators, they may not prosecute non-Indian perpetrators. In addition, most
states do not have jurisdiction to prosecute non-Indians who commit domestic and dating
violence against Indians. Usually, the federal government has exclusive jurisdiction to try such
non-Indian perpetrators. However, because federal prosecutors usually are located a long distance
from reservations and have heavy workloads, investigation and prosecution of non-Indian on
Indian domestic and dating violence are said to be inadequate. The VAWA Reauthorization and
the SAVE Act would provide tribal courts with criminal jurisdiction to prosecute non-Indians
charged with domestic or dating violence against an Indian that occurs within their jurisdictions.
With the VAWA Reauthorization (S. 1925 and H.R. 4271) and the SAVE Act (S. 1763 and H.R.
4154), there are two fundamental legal questions that must be asked: (1) If Congress grants Indian
tribes criminal jurisdiction over non-Indians, would this be a recognition of inherent sovereignty
or a delegation of federal prosecutorial power?; and (2) Depending on which form of authority is
employed, what procedural safeguards will be accorded criminal defendants?
Through a series of cases and federal statutes, Indian tribes exercise their inherent sovereignty
over member Indians and non-member Indians. It is not clear from the Supreme Court case law
whether this theory would be extended to prosecutions of non-Indians. If it is extended under an
inherent sovereignty theory, it appears that tribes will not be bound by the Constitution but only
by protections in the Indian Civil Rights Act, Tribal Law and Order Act, and the individual tribal
laws. If, on the other hand, the tribes are exercising delegated federal authority, it appears the full
catalog of protections in the Bill of Rights would apply against the tribes.

Author Contact Information

Jane M. Smith
Richard M. Thompson II
Legislative Attorney
Legislative Attorney
jmsmith@crs.loc.gov, 7-7202
rthompson@crs.loc.gov, 7-8449

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