For years, Native American populations have suffered violent crime rates far exceeding the national average. In 2020, non-Hispanic Native and Alaskan Native people experienced the second highest homicide rate of any ethnic group, with 84.3% of Native women being victimized by violent crime in their lifetime.
While the causes of this epidemic of crime are multi-faceted, many point to jurisdictional gaps that force Native victims to depend on federal courts for redress. Notably, between 2005 and 2009, federal courts declined to try 50% of criminal cases involving Native Americans that were referred to them and 52% of violent crime cases. The Senate Committee on Indian Affairs in 2008 examined this overwhelming declination rate as an enabler of crime on Native reservations.
This calls into question the effectiveness of the federal court bureaucracy in offering sufficient recourse for and deterrence against the most severe crimes on Native lands. An alternative is the courts operated by tribes themselves, which also have some degree of authority to prosecute committed crimes against Native victims by non-Native perpetrators. The status quo of crime on reservations then begs the question: Do the current judicial rights and authorities given to tribal courts sufficiently allow them to address crime on tribal soil? The legal argument for broadening tribal jurisdiction primarily stems from the legal precedent of recognizing tribal sovereignty and inherent legal authority, Congress’s tried constitutional ability to expand that sovereignty, and the success of previous jurisdictional expansions.
- Background: Legal Barriers for Tribal Courts
Native American tribes operate courts that emerged from federal statute and precedent. In Cherokee Nation v. Georgia, the Supreme Court ruled that Native tribes are “domestic dependent nations” with rights to govern their land. Following the Indian Reorganization Act of 1934 (IRA), tribal courts were established to grant Native populations legal jurisdiction over matters in their territory. However, tribal courts crucially lack full criminal jurisdiction over non-Native and non-member perpetrators, even when victims are tribe members.
In the aftermath of the IRA, several rulings have sought to limit tribal court jurisdiction. The Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe held that tribal courts lacked inherent criminal jurisdiction over non-Native defendants. The Court cited the amended Trade and Intercourse Act—which bars federal prosecution of Native defendants already tried in tribal courts but not non-Natives, presuming tribal prosecution of non-Natives lacked legal weight—and the 1885 Major Crimes Act (MCA), which granted federal courts exclusive jurisdiction over Native defendants in serious crimes.
Duro v. Reina in 1990 held that tribes equally lacked criminal jurisdiction over non-member Natives, who were deemed equivalent to non-Natives since they could not exercise civic liberties in tribes, such as vote in elections or hold office. While Duro avoided extending this stipulation to minor crimes unaddressable by federal courts, thus leaving jurisdictional gaps, it argued that Congress must address any gaps, not courts.
Together, rulings like these substantially eroded tribal jurisdiction by limiting their criminal purview, effectively creating dubious jurisdictional zones for non-Natives and non-member Natives on reservations. Tribal lands observe violent crime rates unparalleled by nearly any other region; again, while it is impossible to scrutinize the leading cause of crime in a specific setting, legal scholars and politicians alike have looked to spotty judicial authority as a key enabler. Then, do tribal courts have sufficient jurisdiction to deter and prosecute crime, particularly violent crime? Is there a legal basis to expand their jurisdiction?
- The Legal Grounds for More Jurisdiction
The legal argument for broadening tribal court jurisdiction rests on recognized tribal sovereignty, Congress’s constitutional authority to relax restrictions on that sovereignty, and alignment with previous precedent defining conditional expansions of criminal jurisdiction.
Firstly, key Supreme Court decisions recognize tribes as distinct communities that possess some degree of untouched sovereign rights to regulate within their borders. In McGirt v. Oklahoma, the Court held that the Creek Nation reservation was never formally disestablished. The Supreme Court noted that Congress had established a reservation for the Creek Nation by previously allowing its members a patent over their land and never formally terminated it, a function only Congress has the right to carry out. This then defines the reservation as tribal land, or “Indian country”, on which either tribal or federal courts have criminal jurisdiction depending on the crime. The Court also clarified that demographic changes and historical practices, including Oklahoma state courts’ frequent prosecutions of crimes committed on tribal land, could not constitute the disestablishment of the nation. Similarly, Worcester v. Georgia held that tribal sovereignty excludes state law operation within tribal boundaries unless Congress clearly mandates otherwise, recognizing tribes as “distinct, independent political communities retaining their original natural rights”.
From the Worcester and McGirt rulings arise the idea that implicit divestiture of tribal authority is still limited, given the inherent sovereignty of tribes. Implicit divestiture is the doctrine allowing the Supreme Court to indirectly shape the sovereignty of tribes on the basis that tribal control over external relations, such as tribal governance over foreign trade relationships and non-member individuals, overstepped tribes’ constitutional status as domestic, dependent nations.
The principle of implicit divestiture is perhaps established most clearly by Montana v. United States, in which the Court ceded title of the Big Horn River bed to the state of Montana from the control of the Crow Tribe. The Court argued that, because no treaty or statute explicitly grants authority over non-fee lands and non-member persons to the Crow Tribe, the tribe lacked governing power over the river bed due to implicit divestiture. However, the Montana ruling itself recognized two crucial exceptions to the application of implicit divestiture, deemed the “Montana exceptions”: the first being when a non-member individual has entered into a consensual relationship of commercial, contractual, or other nature with the tribe or tribe members, and the second being when the conduct of a non-member individual on tribe land incurs direct effects upon the tribe’s political, economic, or other public wellbeing. The existence of these exceptions, in addition to precedent for recognizing inherent tribal sovereignty, implies that implicit divestiture is not absolute.
While the Court in rulings like Oliphant and Duro previously found that tribes lacked jurisdiction over non-Natives, this status is not a statutory limit but an exercise of implicit divestiture, a judicially created principle that the federal government has the power to reverse or limit. In particular, the federal government ought to limit the application of implicit divestiture in cases analogous to the Montana exceptions—the commission of crimes, particularly violent crimes, on tribal reservations is one such case.
- Why Greater Jurisdiction is Necessary
Granting tribal courts greater criminal jurisdiction is not only permissible, on account of their recognized sovereignty, but practically necessary and consistent with precedent.
The Supreme Court confirmed in United States v. Lara that Congress possesses “plenary and exclusive” powers to legislate with respect to Native tribes, pursuant to the Indian Commerce Clause and the Treaty Clause. In the case, the Court held that tribal courts had jurisdiction to prosecute a non-member defendant for assaulting a police officer, a jurisdiction which stemmed from inherent tribal sovereignty as opposed to federally delegated authority. Moreover, the Court recognized that Congress had sole authority to legislate over relations with tribes, including the power to “lift or relax” restrictions on exercises of tribal sovereignty. One such exercise is the criminal authority of tribal courts, which was previously defined by courts through applying implicit divestiture, but has since been expanded and modified by Congress. For example, when the Court ruled in Duro v. Reina that tribes could not prosecute non-member Indians, Congress enacted an amendment to the Indian Civil Rights Act, dubbed the “Duro fix”, that formally reinstated the jurisdiction of tribal courts to try non-member defendants for criminal misdemeanors.
This model serves as a legal precedent: If Congress can restore any degree of jurisdiction over non-member Natives based on inherent sovereignty, per the legal reasoning used in Duro, it can similarly restore or enlarge jurisdiction over non-native perpetrators. Having determined that implicit divestiture is not absolute and ought to be limited in some cases, particularly those outlined by the Montana exceptions, it follows then that Congressional action is the appropriate mechanism to restore this jurisdiction.
Why is it then that increased criminal jurisdiction, particularly that to prosecute greater criminal acts and violent crimes, is consistent with the principles put forth by Montana? The second case outlined by the Montana exceptions describes a situation in which the actions of a non-member individual directly influence the economic welfare, political integrity, and public safety of tribe members, even when these actions occur on non-fee land on Native reservations. Very simply, commission of crimes on Native reservations, even by non-member Natives and non-Native defendants, clearly erodes the public safety owed to tribe members. Beyond the victims of the criminal act, instances of violent crime broadly harm the community, financially burdening public resources and discouraging people from carrying out everyday tasks and participating in public events. As such, crime ought to be considered an economic and public health risk incurred by tribal communities, thus deserving the attention of tribal courts and law enforcement.
A compelling case for greater jurisdiction is the reauthorization of the Violence Against Women Act (VAWA) in 2013. This reauthorization granted participating tribes “special domestic violence criminal jurisdiction” (SDVCJ) over non-member defendants for specific crimes like domestic violence and dating violence. As of 2018, Congressional research reports indicated that tribes were exercising this authority with careful attention to federal due process requirements and the rights of defendants. Numerous successful convictions were made. Expanding this jurisdiction to include other crimes—such as murder, rape, sexual assault, stalking, and obstruction of justice—would address current jurisdictional gaps where non-Native perpetrators may otherwise evade accountability in tribal courts.
- Concerns with Tribal Jurisdiction: Constitutional Due Process
Critics of expanding tribal criminal jurisdiction primarily point to the independence of tribal judicial systems: Tribal courts are not explicitly bound to constitutional stipulations, such as rights concerning due process specified in the Fifth Amendment.
While tribes are separate sovereigns, it is ultimately the federal government’s decision—via Congress—to expose U.S. citizens to criminal punishment in a tribal court. In Talton v. Mayes, the Court held that constitutional guarantees such as the Grand Jury Clause do not apply to tribal courts, underscoring that tribal criminal process is not constitutionally constrained in the way state and federal systems are. The federal government has, on past occasions, also recognized this limitation of tribal courts. Although Congress enacted the Duro fix and later the SDVCJ provisions under VAWA, it did so only by layering in substantial due‑process‑type safeguards—such as law‑trained judges and guaranteed defense counsel, much in the style of the Bill of Rights—as necessary preconditions for these processes.
As such, critics argue that it is unconstitutional of the federal government to subject non-Native defendants, who are otherwise still American citizens, to a criminal tribunal not bound by constitutional standards of fairness and due process. However, it is necessary to note that SDVCJ has already been implemented to expose U.S. citizens to prosecution by tribal courts, with no substantial evidence thus far to indicate that these trials risk breaches of due process. It is reasonable that, even when expanding tribal jurisdiction further, similar safeguards can be enacted to protect the constitutional rights of non-Native U.S. citizen defendants. This compromise would alleviate anxieties over the fairness of tribal courts while strengthening tribes’ abilities to target the crimes most proximal to them.
- Conclusion
The jurisdictional framework established by Oliphant and similar rulings has enabled a public safety crisis on Native American reservations, on the basis of judicially created but statutorily unfounded principles of implicit divestiture. Congress has demonstrated through VAWA that tribal courts can exercise criminal jurisdiction over non-Native defendants with appropriate safeguards. Moreover, expanding criminal jurisdiction further is aligned with the conception of tribal judicial authority imagined by Montana and Lara as well as doctrines of inherent tribal sovereignty respected in McGirt and Worcester. The next step requires congressional legislation creating exceptions to or reversing Oliphant—similar to the response to Duro v. Reina, which Congress effectively circumvented using the Duro fix. Until then, Native American communities remain vulnerable in what has become a de facto “zone of death”, where their safety depends on the willingness of federal prosecutors to pursue cases.