Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 23, 2016

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a Judge

The power of Native American tribal governments to enforce criminal laws of their own making is a contentious issue that has given rising to conflicting and confusing decisions in state and federal courts. Tribes have long been understood to have sovereign authority to govern their own nations, at least with regard to tribal members who are on reservation lands (and on other tribal property that meets the federal definition of Indian Country), although the extent of that authority is not always clearly defined.

When tribal governments pass criminal laws, three key questions arise. The first is whether the tribe can enforce those laws against people who enter reservations when those people do not belong to the tribe. The Supreme Court answered that question by limiting tribal court criminal jurisdiction to crimes committed by tribal members unless Congress has authorized prosecution of non-tribal members in tribal court.

The second question is whether the federal or state governments can prosecute crimes that are committed in Indian Country by tribal members, or whether the tribe has exclusive authority to punish those crimes. That question is largely answered by federal legislation, including the Major Crimes Act, and by federal court decisions that define whether federal courts, state courts, or tribal courts have jurisdiction over offenses committed on reservations.

The third question is whether the tribe can enforce its criminal laws against tribal members whose alleged violation of the law occurs beyond the boundaries of the reservation. That question, which is largely unresolved by existing law, was presented to, and recently decided by, the United States Court of Appeals for the Sixth Circuit in Kelsey v. Pope.

Lower Court Proceedings In Kelsey

Norbert Kelsey is an enrolled member of the Little River Band of Ottowa Indians. A tribal court convicted Kelsey of misdemeanor sexual assault based on evidence that he inappropriately touched a tribal employee at the tribe’s community center. The community center is located on land that the tribe owns but it is not on the reservation and the land is not within the federal definition of Indian Country.

Kelsey filed a habeas corpus petition in federal court, challenging his conviction and sentence on the ground that the tribal court lacked jurisdiction over off-reservation crimes. The district court agreed and entered an order vacating the conviction.

The Court Of Appeals’ Decision

Noting that the Little River Band was a federally recognized tribe, the court of appeals was guided by federal statutes that acknowledge the “inherent sovereign power” of tribes to establish their own forms of government, including their own justice systems. Apart from federal statutes, federal courts have long recognized that Indian tribes were sovereign powers before the United States was founded, and that they retain their sovereign authority to the extent that it is not inconsistent with federal legislation.

The court of appeals first asked whether imposing the tribe’s criminal law upon tribal members for acts committed outside of the reservation was an inherent aspect of tribal sovereignty. The court decided that tribes govern their members pursuant to their members’ consent to be governed. Tribal membership is voluntary. It confers the right to participate in tribal government. The benefit of tribal membership is contingent upon acceptance of tribal authority to govern its members. The boundaries of a reservation do not change that relationship and do not limit the obligation to be governed by a tribe to which a member voluntarily belongs.

The court of appeals also turned to history as it examined the nature of tribal sovereignty. Before tribes were conquered by European settlers, they enjoyed the ability to punish members for misconduct committed outside the territory that tribes occupied. Tribes did not follow European principles of territorial jurisdiction. Historically, tribal sovereignty was not limited by geography.

The court of appeals found little precedent to guide its decision. Only one modern case, decided by a federal district court in Oklahoma, involved a tribe’s assertion of criminal jurisdiction over a tribal member for a crime committed outside of Indian Country. While that case concluded that the tribe could not prosecute its member for committing an off-reservation theft, the court of appeals did not find the district court’s reasoning to be persuasive.

The court of appeals next asked whether any treaty or federal law limited the authority of the Little River Band to prosecute Kelsey. Implied limitations were the key to the Supreme Court’s decision that tribal governments cannot prosecute non-Indians for crimes they commit on reservations. The court of appeals found no express language that constrained the tribe’s authority to prosecute Kelsey for crimes committed beyond the reservation’s boundary, and it concluded that no limitation of the tribe’s authority could be implied from federal legislation.

Finally, cognizant of Supreme Court rulings that limit tribal sovereignty to those powers that are necessary to protect self-government, the court of appeals asked whether the power to prosecute a tribal member for an off-reservation crime served that purpose. Kelsey’s crime was committed on land that the tribe owned, in a community center that was the heart of the tribe’s community interaction. The crime victim was a tribal member who was attending an official meeting of the tribal elders. Kelsey served in the tribal government. Given those circumstances, the court of appeals agreed that the crime was an offense against the peace and dignity of the tribe itself.

The court of appeals’ decision is carefully limited and must be read in light of its unique facts. Whether a tribe can punish one of its members for a crime committed in a distant place that the tribe does not own, when the crime is not committed against a tribal member and has no obvious impact on the tribe’s ability to govern itself, is a question that remains unresolved.