CHAPTER 2 TRIBAL CIVIL, CRIMINAL, AND REGULATORY JURISDICTION OVER NONMEMBERS
| Jurisdiction | United States |
TRIBAL CIVIL, CRIMINAL, AND REGULATORY JURISDICTION OVER NONMEMBERS
Professor of Law & Director of the Indigenous Law & Policy Center
Michigan State University College of Law
East Lansing, MI *
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MATTHEW L.M. FLETCHER is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center, in East Lansing, MI. He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band of Ottawa and Chippewa Indians, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska. He is a member of the Grand Traverse Band, located in Peshawbestown, Michigan. He is the Reporter for the American Law Institute's Restatement of the Law of American Indians. He recently published a hornbook, Federal Indian Law (West Academic Publishing 2016). Professor Fletcher co-authored the sixth and seventh editions of Cases and Materials on Federal Indian Law (West Publishing 2011 and 2017). With Wenona Singel and Kathryn Fort, Professor Fletcher is under contract with the American Bar Association to write a tribal law practice guide. He also authored American Indian Tribal Law (Aspen 2011), the first casebook for law students on tribal law; The Return of the Eagle: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians (Michigan State University Press 2012); and American Indian Education: Counternarratives in Racism, Struggle, and the Law (Routledge 2008). He co-edited The Indian Civil Rights Act at Forty with Kristen A. Carpenter and Angela R. Riley (UCLA American Indian Studies Press 2012), and Facing the Future: The Indian Child Welfare Act at 30 with Wenona T. Singel and Kathryn E. Fort (Michigan State University Press 2009). Professor Fletcher's scholarship has been cited twice by the United States Supreme Court; in more than a dozen federal, state, and tribal courts; in dozens of federal, state, and tribal court briefs; and in hundreds of law review articles and other secondary legal authorities. Finally, Professor Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk, http://turtletalk.wordpress.com/. Professor Fletcher graduated from the University of Michigan Law School in 1997 and the University of Michigan in 1994. He has worked as a staff attorney for four Indian Tribes - the Pascua Yaqui Tribe, the Hoopa Valley Tribe, the Suquamish Tribe, and the Grand Traverse Band He previously sat on the judiciaries of the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Little River Band of Ottawa Indians, the Lower Elwha Klallam Tribe, and the Turtle Mountain Band of Chippewa Indians; and served as a consultant to the Seneca Nation of Indians Court of Appeals. He is married to Wenona Singel, a member of the Little Traverse Bay Bands of Odawa Indians, and they have two sons, Owen and Emmett.
I. Quick and Dirty History of Tribal Jurisdiction over Nonmembers (1778-1978)
A. Treaty and Statutory Landscape
Jurisdiction over nonmembers in Indian country in the founding generation was a question of reservation and tribe specific negotiation. The federal statutory baseline rules on criminal jurisdiction in Indian country came in the first Indian affairs statutes passed by Congress, the Trade and Intercourse Acts. Treaties might or might not adjust that baseline on a tribe by tribe or reservation by reservation basis.
The Trade and Intercourse Acts set the baseline or default rules of Indian affairs for the first generation of federal law, and this baseline remains somewhat intact. The 1790 Trade and Intercourse Act provided that any "citizen or inhabitant" of the United States committed a crime in Indian country, that crime would be prosecuted as a violation of federal law.1 The original act expired, and the statutes that followed retained this general rule.2
The first generation of Indian treaties often dealt specifically with jurisdiction over nonmembers. The first formal treaty between the United States and an Indian tribe is the Treaty with the Delawares in 1778.3 There, the tribe and the United States agreed not to exercise criminal jurisdiction over each others' citizens unless "a fair and impartial trial can be had by judges or juries of both parties. . . ."4 Other early treaties, most notably the 1795 treaty that ended the Northwest War,5 provided that American citizens who entered Indian country without consent "forfeit[ed] the protection of the United States, and the Indians may punish them him as
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they please."6 Others required the tribe to turn over intruders to the United States,7 or to petition the United States to remove them.8 In one instance, the tribe asked the United States Congress to grant the tribe the power to prosecute nonmembers.9
Most early treaties denied tribal criminal jurisdiction over American citizens for regular criminal offenses. These treaties provided that American citizens who committed crimes against an Indian would be punished under the laws of the United States, or turned over to the United States for punishment.10 The 1785 Cherokee treaty provided that the punishment of the American citizen must be "in the presence of some of the Cherokees. . . ."11 Some treaties provided for the punishment by the United States of nonmember traders who violated their federal licenses,12 for the introduction of liquor into Indian country in violation of federal law,13 or to turn over nonmember fugitives.14
On occasion, treaties would deal with specific relationships between Indians and American citizens. The 1789 Treaty with the Wyandots dealt with the problem of horse stealing, providing that a federal civil magistrate would handle any horse theft claims brought by
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Indians.15 The 1808 Treaty with the Osages provided that American citizens who were unlicensed hunters be turned over to the United States for punishment.16 The 1835 Treaty with the Comanche provided a process by which crimes by members of another tribe could be prosecuted.17
On rare occasions, a treaty might deal with civil claims. The 1816 Treaty with the Chickasaws granted regulatory jurisdiction over disputes with nonmember traders to the federal Indian agent.18 The 1820 Treaty with the Choctaws provided funds to allow the tribe to organize a Light-Horse brigade, "so that good order may be maintained, and that all men, both white and red, may be compelled to pay their just debts. . . ."19 The 1866 Treaty with the Choctaw and Chickasaw Nations acknowledged the power of the tribe to license nonmember commercial actors.20
In some instances, treaties provided for American citizens to become citizens of certain tribes, or to benefit from treaty rights.21 The 1866 Treaty with the Choctaw and Chickasaw Nations provided that those nonmembers who became members under tribal law could be subject to criminal prosecution by the tribe.22
Later treaties became very specific, although the language used in the treaties was not always helpful. In the 1855 Treaty with the Choctaw and Chickasaw Nations, the language guaranteed the tribes' "unrestricted right of self-government, and full jurisdiction, over persons and property, within their respective limits."23 The same treaty required each tribe to extradite criminals to the other.24 The 1866 Treaty with the Choctaw and Chickasaw Nations provided that the tribes could create a council with the power to "legislate . . . the administration of justice between members of the several tribes . . . and persons other than Indians and members of said tribes or nations . . . ."25 The 1866 Treaty with the Cherokee Nation created a court of general jurisdiction over "inhabitants."26
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Treaties from 1867 and 1868 included the famed "bad men clauses" that detailed criminal jurisdiction authority on several reservations. The clauses typically required the tribe to turn over "bad men among the whites" to the United States for punishment.27
B. The Reality on the Ground
The pre-contact American Indian commercial markets and trading fairs were extraordinary concerns covering the whole of what is now American territory. These networks and markets continued for centuries after the arrival of European outsiders from overseas.28 Lakes and rivers were the commercial superhighways of North American Indian markets, allowing Indian people to transport goods over a thousand miles if necessary.29 Regularly held Indian trading fairs were enormous, and may have included thousands of Indian peoples representing dozens of Indian nations.30 For example, in 1805, Lewis and Clark were amazed to find enormous trading fairs drawing Indians from dozens of tribes.31 Nonmembers, even enemies, would be adopted into the tribal community to allow for more effective and inclusive trading.32 A limited form of tribal citizenship, then, could be a formal prerequisite to Indian trade, a kind of permission to access the Indian market. The French and Spanish, then the Dutch and the British, and finally the Americans, bargained to access the Indian commercial market. Tribal commercial practices adapted to meet the new trading partners' particular notions of property rights and trade.33
Tribal permission to access Indian trade was required, and it could mean that Indian traders required tribal citizenship or familial ties with the tribe to acquire or earn that permission. Kinship ties created between Indian traders and tribal members bound together the groups both politically and socially. Indian traders married into the tribe, worked for the tribe as interpreters, and otherwise took on the rights and...
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