Thursday, November 21, 2019

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"Can I Be Prosecuted in Tribal Court?"

Answer: It depends. Tribal courts do not have general criminal jurisdiction over non-Indian crimes occurring on the reservation. However, tribal courts do retain the power to exclude any unwanted person from their reservations.

Jurisdiction for non-Indian criminal offenses on the reservation lies with state or federal courts: Crimes committed on the reservation by non-Indians against non-Indians are subject to state jurisdiction. Federal courts have jurisdiction under the General Crimes Act over reservation crimes committed by non-Indians against Indians or Indian "interests" (e.g., property).

In 1990, the US Supreme Court ruled in Duro v. Reina, that state or federal courts also had jurisdiction over on-reservation crimes of Indians who are not members of the tribal community in which the crime occurred. However, Congress quickly overrode Duro, and affirmed the "inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians."

The Ninth Circuit upheld the statute--commonly known as "the Duro fix"--in an opinion issued in 2001. Thus, absent federal statutes that limit tribal jurisdiction, Idaho tribal courts retain jurisdiction over crimes committed by any Indian (member or nonmember) on the reservation.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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