This is an extract of our Criminal Jurisdiction document, which we sell as part of our Federal Indian Law Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Federal Indian Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Federal Allocation of Criminal Jurisdiction in Indian Country I. History a. Tribes originally had jurisdiction over crimes committed between tribal members i. Lost it in late 1800s b. Problems: i. will be brought to sometimes far away federal court
1. high travel costs
2. there are also tensions between rural populations and the tribes so a court closer to the tribe is not necessarily better ii. lawyers, judges and juries often will not be tribal members iii. even if held local lawyers will try and keep tribal members off the jury iv. sometimes speak different languages v. sometimes the tribes have fundamentally different notions of justice and are forced to work within the federal system vi. prosecutors are seen as outsiders, NAs don't necessarily trust them, meaning they are unwilling to talk/tell the truth vii. resources are stretched thin - reservation crimes are expensive bc difficult to get witnesses, lots of travel involved, translators etc - this makes making tribal crimes difficult to prioritize c. The result of all of these problems is under enforcement of crimes on reservations i. high rates of crimes especially DV and sexual abuse d. Two Major federal criminal statutes in Indian country i. Major Crimes Act
1. Applies only to Indian perpetrators a. law created after outrage in Crow Dog
2. Applies to most serious felonies
a. list of crimes which court has jurisdiction over see p. 315 i. if anything listed is not punishable under federal law then state law will be applied
3. Whether tribal court has concurrent jurisdiction over Major Crimes is an "open question" according to S. Ct. a. most courts have held that they can ii. Indian Country Crimes Act
1. Basically gave Federal government exclusive criminal jurisdiction in Indian country a. EXCEPT for crimes between two Indians b. EXCEPT for crimes the tribe already punished
2. Assimilative Crimes Act applies in Indian Country a. if Federal government doesn't have a law for it but the state in which the territory lies does then the person shall be guilty of the offense and subject to a similar crime b. this applies only if it does not conflict with Federal law e. Both major laws act on two presumptions i. states have no criminal jurisdiction in Indian country ii. tribes retain all aspects of their inherent sovereignty which Congress has not expressly taken away
1. But these presumptions were limited a. Public Law 280 b. Oliphant: as a matter of Federal Common Law, tribes cannot exercise criminal jurisdiction over non-Indians f. Tribal Law and Order Act i. gives more funds for tribal law enforcement ii. more authority to tribal authorities iii. raised maximum amount for criminal monetary penalty
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