{ "id": "R42488", "type": "CRS Report", "typeId": "REPORTS", "number": "R42488", "active": false, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 417062, "date": "2013-02-04", "retrieved": "2016-04-06T23:37:34.353058", "title": "Tribal Criminal Jurisdiction over Non-Indians in S. 47 and H.R. 11, the Violence Against Women Reauthorization Act of 2013", "summary": "Domestic and dating violence in Indian country are reportedly at epidemic proportions. However, there is a practical jurisdictional issue when the violence involves a non-Indian perpetrator and an Indian victim. Indian tribes only have criminal jurisdiction over crimes involving Indian perpetrators and victims within their jurisdictions. Most states only have jurisdiction over crimes involving a non-Indian perpetrator and a non-Indian victim within Indian country located in the state. Although the federal government has jurisdiction over crime committed by non-Indians against Indians in Indian country, offenses such as domestic and dating violence tend to be prosecuted with less frequency than other crimes. This creates a practical jurisdictional problem.\nS. 47 and H.R. 11, the Violence Against Women Reauthorization Act, would recognize and affirm participating tribes\u2019 inherent sovereign authority to exercise special domestic violence jurisdiction over domestic violence involving non-Indian perpetrators and Indian victims occurring within the tribe\u2019s jurisdiction. It is not clear whether Congress has the authority to restore the tribes\u2019 inherent sovereignty over nonmembers, or whether such authority would have to be a delegation of federal authority. The tribal jurisdiction provisions of S. 47 and H.R. 11 are nearly identical to the tribal jurisdiction provisions of S. 1925, which passed the Senate in the 112th Congress.\nIn a series of cases, the Supreme Court outlined the contours of tribal criminal jurisdiction. In United States v. Wheeler, the Court held that tribes have inherent sovereign authority to try their own members. In Oliphant v. Suquamish Indian Tribe, the Court held the tribes had lost inherent sovereignty to try non-Indians. The Court in Duro v. Reina determined that the tribes had also lost the inherent authority to try nonmember Indians. In response to Duro, Congress passed an amendment to the Indian Civil Rights Act that recognized the inherent tribal power (not federal delegated power) to try nonmember Indians. S. 47 and H.R. 11 would apparently supersede the Oliphant ruling and \u201crecognize and affirm the inherent power\u201d of the tribes to try non-Indians for domestic violence offenses. \nThe Supreme Court stated in United States v. Lara that Congress has authority to relax the restrictions on a tribe\u2019s inherent sovereignty to allow it to exercise inherent authority to try nonmember Indians. However, given changes on the Court, and, as Justice Thomas stated, the \u201cschizophrenic\u201d nature of Indian policy and the confused state of Indian law, it is not clear that today\u2019s Supreme Court would hold that Congress has authority to expand the tribes\u2019 inherent sovereignty. It may be that Congress can only delegate federal power to the tribes to try non-Indians.\nThe dichotomy between delegated and inherent power of tribes has important constitutional implications. If Congress is deemed to delegate its own power to the tribes to prosecute crimes, all the protections accorded criminal defendants in the Bill of Rights will apply. If, on the other hand, Congress is permitted to recognize the tribes\u2019 inherent sovereignty, criminal defendants would have to rely on statutory protections under the Indian Civil Rights Act or tribal law. Although the protections found in these statutory and constitutional sources are similar, there are several important distinctions between them.", "type": "CRS Report", "typeId": "REPORTS", "active": false, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R42488", "sha1": "fc69ff42d2b0793950c298307ea03b6048440d1e", "filename": "files/20130204_R42488_fc69ff42d2b0793950c298307ea03b6048440d1e.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R42488", "sha1": "cae7a3a3986bbbc3aa36de7f0e540af91c7fbb30", "filename": "files/20130204_R42488_cae7a3a3986bbbc3aa36de7f0e540af91c7fbb30.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc806132/", "id": "R42488_2012May15", "date": "2012-05-15", "retrieved": "2016-03-19T13:57:26", "title": "Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20120515_R42488_f9b212394d13fca18460ddf6171fa89ec1d8f916.pdf" }, { "format": "HTML", "filename": "files/20120515_R42488_f9b212394d13fca18460ddf6171fa89ec1d8f916.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc86628/", "id": "R42488_2012Apr18", "date": "2012-04-18", "retrieved": "2012-06-15T10:07:48", "title": "Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act", "summary": "A report looking at incidences of violence against women of American Indian ethnicity in relation to legal jurisdiction. American Indians experience violent crimes at a rate much higher than the general population. This trend carries over to domestic violence: American Indian women experience domestic and dating violence at more than twice the rate of non-Indian women. Most of this violence involves an offender of a different race. This fact creates a jurisdictional problem because tribal courts do not have criminal jurisdiction over crimes committed within the tribe's jurisdiction by non-Indians.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20120418_R42488_6d26b1f3d988d3ba298f309d742c5c8f305f07d4.pdf" }, { "format": "HTML", "filename": "files/20120418_R42488_6d26b1f3d988d3ba298f309d742c5c8f305f07d4.html" } ], "topics": [ { "source": "LIV", "id": "Family violence", "name": "Family violence" }, { "source": "LIV", "id": "Indians", "name": "Indians" }, { "source": "LIV", "id": "Criminal law", "name": "Criminal law" }, { "source": "LIV", "id": "Criminal statistics", "name": "Criminal statistics" } ] } ], "topics": [ "American Law", "Constitutional Questions" ] }