Tribal Criminal Jurisdiction Essay

1308 words - 6 pages

Before the Europeans arrived in the Americas, the Indigenous Tribes had their own languages, customs, and legal systems. These legal systems were completly new to the Europeans, because they did not focus on the Anglo norms of ctime and punsihment, instead, they focused on the restoration of peace and tranquility within the tribe. When any members had a disagreement, they would present the problem to the tribal elders who would sit with the two parties and their families and simply talk; they would talk until a unified decision could be made. This unanimous decision would be the final one, no one could undermine the decision of the elders. This custom was called the Peacemaking Circle and ...view middle of the document...

Crow Dog apealed for the writ of Habeas Corpus, which was granted, and his death sentance was repealed4. This caused Congress to draft and pass the Major Crimes Act of 1885, which allowed them to prosecute major crimes on the Reservations, even if the matter had already been dealt with within the tribe. This did not however, take away from tribal sovereignty, instead, it simply made the tribes a seperate but paralell sovereign to the Federal Government, which allowed for the double prosecution of Tribal members, because double jeporady laws only apply to lands that fall within the sovereign of the United States, and Indian Reservations are viewed as seperate sovereigns.
This seperate sovereignty gave, at least in the eyes of the Tribes, the Tribes the authority to punish all wrongdoers within the boarders of the Reservations. But, in 1978, this idea was challenged in Oliphant VS Suquamish Indian Tribe 435 U.S 191. In 1971 Mark Oliphant, a non-Native resident of the Suquamish Indian Reservation was arrested and charged with assulting an officer and resisting arrest. Oliphant applied for Habeas Corpus stating that the Tribe had no jurisdiction over him because he was not non-Native resident of the reservation. The Supreme Court agreed with Oliphant, stating that Tribal courts have no jurisdiction over non-Natives, even if they are permanent residents of the Reservation5. However, Justice Thrugood Marshall disagreed stating that "I agree with the court below that the "power to preserve order on the reservation . . . is a sine qua non (essential action or conditon) of the sovereignty that the Suquamish originally possessed." Oliphant v. Schlie, 544 F.2d 1007, 1009 (CA9 1976) (Case leading up to Oliphant vs Suquamish Indian Tribe)6. In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation. Accordingly, I dissent." 7 The Supreme Court's decision was based upon the idea that any and all Tribal Jurisdiction over non-Natives living on the Reservation had been lost due to Tribal submission to the sovereignty of the United States, and that though Tribal Jurisdiction over non-Natives had never been specifically or expressly removed, it had been removed implicitly through the actions of Congress8.
In 1990, Tribal sovereignty and jurisdiction was challenged yet again. In 1984 Albert Duro was arrested for shooting and killing a teenaged boy on the Salt River Indian Reservation. Duro was charged with the misdeamenor crime of illegally discharging a firearm because the Tribe had no jurisdiction to try Duro on the felony crime of murder. Duro challenged the charge stating that the Tribe had no jurisdiction to try him because a nonmember Indian residing on the Reservation. The Tribe denied his challenge stating that...

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