Tips for Practicing in Tribal Courts, 0416 KSBJ, 85 J. Kan. Bar Assn 4, 25 (2016)

Author:Hon. Elizabeth Ann Kronk Warner, J.
 
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Tips for Practicing in Tribal Courts

Vol. 85 J. Kan. Bar Assn 4, 25 (2016)

Kansas Bar Journal

April, 2016

          Hon. Elizabeth Ann Kronk Warner, J.

         Because there are four federally recognized resident tribes located within Kansas, as well as several other tribes with significant interests within the state, there is a likelihood that any Kansas practitioner may find herself with a case pending in tribal court. Accordingly, the purpose of this article is to provide a brief introduction to the law applicable in Indian country, as well as supply some basic tips for practice in tribal courts.

         I. Tip #1: Know the Law (or find someone who does)

         Under the Kansas Rules of Professional Conduct, a lawyer’s responsibilities include a duty of competence to her clients. Accordingly, our profession requires that we have a basic competence in any legal matter we undertake. There-fore, before taking on any case in tribal court, it is important to understand the law applicable in Indian country. Oftentimes, it can be complicated to determine which sovereign has jurisdiction in a matter arising in Indian country or involving Indians. As an initial starting point, there are three potential sovereigns that may be able to assert jurisdiction in matters arising within Indian country: a tribal government, the state government, or the federal government. Which sovereign is legally capable of asserting jurisdiction often turns on two questions: (1) the political identity of the parties involved; and (2) the location of the action giving rise to the matter.

         A. Political Identity

         In matters related to Indian country, the determination of which court has jurisdiction turns in part on the political identity of the parties involved. When dealing with matters arising in Indian country, there are three possible political identities:1 (1) member Indian, (2) non-member Indian, and (3) non-Indian. A member Indian is an individual who is a citizen of the tribe attempting to assert jurisdiction. A non-member Indian is an individual who is a citizen of a tribe, but not the tribe(s) asserting jurisdiction in the present matter. Typically, tribal court matters will involve member or non-member Indians. Of course, it is always possible that non-Indians may consent to tribal court jurisdiction or be parties to a case arising in Indian country.

         B. Location–What is Indian Country?

         In addition to the political identity of the individuals involved, tribal court jurisdiction oftentimes turns on whether the matter at issue arises within Indian country. Indian country is more than reservation land. Indian country is defined at 18 U.S.C. § 1151 (1949). Although this is part of the criminal section of the Code, the U. S. Supreme Court has applied the definition in the civil context. 18 U.S.C. § 1151 provides that Indian country includes: (1) all land within a reservation, notwithstanding issuance of a patent and including rights of way; (2) dependent Indian communities; and (3) all allotments.

         In addition to 18 U.S.C. § 1151, the Supreme Court announced a test to help determine whether an area of land is Indian country. Under this test, the court will ask whether the area has been validly set apart for the use of the Indians as such under the superintendence of the federal government.2

         Indian country may be diminished, but, if it is disestablished, it is no longer Indian country. As a result, courts will often evaluate whether tribes have been diminished or disestablished. In Solem v. Bartlett,[3] the Court considered whether a crime that was committed on a portion of the Tribe’s land that had been opened for allotment occurred in Indian country. Te Court indicated that in determining whether there was diminishment or disestablishment the necessary factors to consider were: (1) whether there is language of cessation; (2) whether the legislative history suggests there was agreement about cessation; and (3) what occurred after the land was opened. In Solem, the Court found no conclusive evidence that the land had been disestablished.

         C. Marshall Trilogy

         To understand tribal court jurisdiction, it is important to understand the three foundational cases of federal Indian law, also known as the Marshall Tril-ogy.4 These three decisions are: Johnson v. McIntosh,[5] Cherokee Nation v. Georgia,6 and Worcester v. Georgia.7 Johnson v. McIntosh established that tribes have the right to beneficial use of their land, although the federal government does have the right to dispossess tribes of this use. In Cherokee Nation, the Court addressed whether its original jurisdiction extended to Indian nations. In holding that it did not, the Court reasoned that Indian nations were not foreign nations, but, rather, “domestic dependent nations.” In Worcester, the Court considered whether the laws of the state of Georgia applied within the territory of the Cherokee Nation. Te Court concluded that the laws of the state of Georgia had no force or effect within Indian country.

         Both Cherokee Nation and Worcester are important to understanding the extent of tribal court jurisdiction. Cherokee Nation recognized the separate sovereignty of tribal nations, which is a basis for tribal court jurisdiction. Worcester held that the laws of states generally do not apply in Indian country. Although subsequent congressional acts and court decisions have modified Worcester, the presumption against the applicability of state law in Indian country to issues involving wholly internal matters (such as domestic relations, property, etc.) remains, and, therefore, tribal courts may assert their authority without interference from state courts in numerous areas.

         Te Kansas courts have recognized the importance of the Marshall trilogy on the development of modern federal Indian law. As recognized by the Kansas Court of Appeals in Diepenbrock v. Merkel, Indian tribes are “domestic dependent nations” that exercise inherent sovereign authority over their members and territories. Indian reservations are separate and distinct nations inside the boundaries of the state of Kansas. Indian rights are protected by treaty with the United States Te inherent sovereignty possessed by Indian tribes allowed them to form “their own laws and be ruled by them.”8

         D. Subsequent Relevant Developments in Federal Indian Law

         Congress passed the Major Crimes Act approximately 50 years after the Court’s decision in Worcester. The Court determined that Congress had the authority to enact the Major Crimes Act in United States v. Kagama.[9] In reaching this decision, the court determined that the United States owes Indian tribes a “duty of protection” and, therefore, the federal government has plenary authority over Indian country.10 Since this time, the federal government has exercised substantial authority in Indian country. Accordingly, federal law may play a significant role in matters arising within tribal court.

         In considering tribal court jurisdiction, it is also important to know that tribes pre-existed the formation of the federal government, and, as a result, are extra-constitutional entities. Many are surprised to learn that the U.S. Constitution does not apply to Indian country. In 1968, Congress recognized this “void” and enacted the Indian Civil Rights Act (ICRA).11 Te ICRA applies the majority of the provisions of the Bill of Rights to Indian country, with a few notable exceptions. Some of these exceptions include: 1) the First Amendment does not apply in Indian country; 2) there is no right to an attorney; and 3) ICRA placed a limitation on tribal court enforcement authority. Currently, the limitation on tribal court enforcement authority is one year in jail and/or a $5,000 fine.12 However, tribes that comply with the requirements of the recently enacted Tribal Law and Order Act may be able to increase the sentencing authority of their tribal courts in certain circumstances.13

         E. Public Law 280

         In 1953, Congress enacted Public Law 280, which had the effect of extending both civil and criminal state jurisdiction to events occurring within Indian country.14 Originally, Public Law 280 conferred criminal and civil jurisdiction in Indian country to California, Minnesota (except the Red Lake reservation), Nebraska, Oregon (except the Warm Springs reservation), and Wisconsin. Alaska was later added in 1958. Public Law 280 also allowed states to assume jurisdiction, if they opted to do so. Under this provision, Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, Utah and Washington all assumed some aspect of jurisdiction in Indian country. Ultimately, the court determined that Public Law 280 did not confer general regulatory authority on the states.15 Despite this ruling, however, Public Law 280 dramatically changes the jurisdiction of tribal courts where it applies....

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