History of American Indians and the United States

Crime & Jurisdiction

Dr. Kane

mkane2@albany.edu Humanities 109 | MWF 9:20 - 10:15 AM

Office Hrs: M 10:20 - 11:20 & F 1:30 - 3:30

Social Science 60S

Wednesday, September 13

coming up

• Policy piece due Monday Sept 18 (BB)
• EC: Sept 28 11:30 Hum 230 Charlottesville roundtable

today's class

• historical extent of jurisdiction
• recent changes in jurisdiction
• impacts on people's lives

Indian Commerce Clause

• Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
• federal power to buy land
• federal, not state, power to regulate gaming, taxation, hunting, etc

Indian Country General Crimes Act - 1817

• federal jurisdiction over crime in "Indian territory"
• applied only to crime between Native/non-Native or non-Native/non-Native
• reserved jurisdiction for Native/Native to tribes
• non-Native/Native crime often not prosecuted

Major Crimes Act - 1885

• extended federal jurisdiction to Native/Native crime on reservations
• only: murder, manslaughter, rape, assault, arson, burglary, larceny
• US v. Kagama 1886 - DDN status gives Congress power and duty to regulate crime for "ward" nations "in a state of pupilage"
• expanded Congressional powers outside of Indian Commerce Clause

Public Law 280 - 1953

• Minnesota, Nebraska, California, Oregon, Wisconsin, Alaska, Nevada, South Dakota, North Dakota, Washington, Florida, Idaho, Montana, Arizona, and Utah
• tribal populations considered large or "lawless" enough to affect surrounding population
• extends only state criminal and civil jurisdiction - not tax or regulation
• non-PL280: state jurisdiction for non-Native/non-Native crime only

SCOTUS

• Rehnquist court & Roberts court - 1986-2017 70-80% cases against Native plaintiff/defendent
• Oliphant v. Suquamish 1978 - no tribal jurisdiction over non-Native accused
• Duro v. Reina 1990 - no tribal jurisdiction over non-member Indians

Tribal Law and Order Act - 2010

• PL280 states: possible to share jurisdiction with federal govt
• tribes may prosecute felonies & impose longer/heavier sentences
• info and resources sharing between tribal, state, and federal agencies: rape kits, drug & trafficking prevention, youth crime prevention
• training and technical assistance for tribal courts

UAlbany resources

• thehotline.org
• http://www.albany.edu/advocacycenter/
• Advocacycenter@albany.edu
• 518-442-CARE
• Indian Quad, Seneca Hall Basement, Suite 009
• Confidental: Advocacy Center, Health Services, Counseling, Interfaith Center
• Not confidential: faculty, other University employees

Missing & Murdered Indigenous Women

• ~70% of Native women physically abused
• ~45% of Native women sexually assulted
• available Indian princess vs "missing white woman" syndrome
• off-reservation women often seen as sex workers or "asking for it"
• disappearances not investigated because of unclear jurisdiction

Violence Against Women Act - 2013

• tribal jurisdiction over non-Native/Native crime in domestic violence and sexual assault cases
• only applies if accused lives, works, or has family relationships on reservation
• tribal courts must pay for defendent's attorney through appeals process
• tribal courts must provide trial by jury including non-Native jury members
• why are so many reservation residents non-Native? ~75%