Cherokee Nation v. Georgia, 30 U.S. 1 (1831). In this 1831 case, with a complicated factual and procedural posture, the United States Supreme Court considered whether tribes are "foreign state" within the meaning of the Constitution. Although the Supreme Court decided that tribes were not "foreign states," it did consider tribes to be "domestic dependent nations," or governments free and independent of State governments' laws.
In this case, Albert Duro, a member of the Torres Martinez Desert Cahuilla Indians, murdered a boy on the Salt River Reservation. The tribe prosecuted Duro for murder, but he filed a writ of habeas corpus in federal court arguing that the tribe did not have the power to prosecute him. The Supreme Court agreed, holding that tribes did not have the power to prosecute Indians from other tribes. The Supreme Court reversed this case in United States v. Lara, 541 U.S. 193 (2004).
In 1881, a Sioux man named Kan-gi-Shun-ca (Crow Dog) shot and killed another Sioux man on the Great Sioux Reservation. In response, the Sioux tribal government prosecuted and convicted Crow Dog of the murder and ordered him to pay restitution to the victim's family. The Dakota territorial government, which was, in essence, the federal government, also tried Crow Dog for the murder and sentenced him to death. Crow Dog appealed his federal conviction and death sentence to the United States Supreme Court, arguing that the federal government did not have criminal jurisdiction over crimes committed by Indians on tribal lands. In an unanimous decision, the United States Supreme Court agreed with Crow Dog, holding that Congress had not granted federal courts jurisdiction over crimes committed by Indians in Indian Country. This decision is no longer good law, because Congress swiftly granted federal courts criminal jurisdiction over major crimes by enacting the Major Crimes Act.
In this case, the Supreme Court considered the consequences of a land dispute between two non-Indian families. In 1775, Thomas Johnson purchased land in the Northwest Territory from members of the Piankeshaw Indian tribes. In 1818, William M'Intosh purchased from Congress the same land that Johnson had purchased in 1775. Realizing the issue, Johnson's heirs sued M'Intosh's heirs in federal court to clear the title. The Supreme Court, with Justice Marshall writing the majority opinion, held that, based on the colonial discovery doctrine, tribes have no power to grant land to anyone other than the federal government. Thus, M'Intosh's claim to the land was greater than Johnson's claim to the land, because Johnson's claim to the land was based upon an illegitimate transaction.
Is a significant United States Supreme Court case that holds that Indian tribes do not have inherent criminal jurisdiction over non-Indians. According to the Supreme Court, the only way tribes can exercise jurisdiction over non-Indians is with an express grant of that jurisdiction by Congress.
In this case, Julia Martinez, a member of the Santa Clara Pueblo tribe, was married to a Navajo man and had two children with him. The tribe had an ordinance which denied the children of female members membership to the tribe, but there was not a similar ordinance denying tribal membership to the children of male members. Martinez sued the tribe in federal court for injunctive and declaratory relief, arguing that She claimed that the membership ordinance discriminated on the basis of sex and ancestry in violation of Title I of the Indian Civil Rights Act of 1968 (ICRA), which provides that "no Indian tribe shall deny to any person within its jurisdiction the equal protection of its laws." The Supreme Court held that although tribes are not allowed to discriminate on the basis of gender, tribes maintain all of their traditional sovereignty, absent an express action by Congress. Here, Congress made no provisions for tribes to be sued for declaratory or injunctive relief. Thus, the tribe has retained its sovereign immunity against suits for declaratory and injunctive relief, which means they have the power to remain free from these lawsuits, and Congress did not provide tribal members with a cause of action against tribal officials. Because there was no way for her to recover, Martinez lost her suit against the tribe.
In response to the Supreme Court's judgment in Ex Parte Crow Dog, Congress passed the Major Crimes Act, which conferred criminal jurisdiction to the federal government over all "major" crimes in Indian Country. In this case, the Supreme Court was forced to decide whether Congress had the authority to pass the Major Crimes Act. In an unanimous decision, the Supreme Court held that Congress did, indeed, have the power to enact the Major Crimes Act. The Supreme Court characterized Indians as "wards of the nation" and further held that the Major Crimes Act was constitutional because tribal governments the tribal governments "owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time by Congress."
In this case, a member of the Navajo Nation was convicted in tribal court of contributing to the delinquency of a minor. Then, after his tribal court conviction, a federal grand jury indicted him for statutory rape. The federal district court dismissed the indictment, holding that a federal prosecution of the defendant would violate his Fifth Amendment Double Jeopardy rights. The Supreme Court, considering this issue, made several very important conclusions. First, the Court concluded that tribes possess all aspects of sovereignty not withdrawn by treaty, statute, or by implication as necessary result of their status as domestic, dependent nations. Next, the Court concluded that the Navajo Nation has never lost its sovereign power to punish tribal offenders. Finally, the Court held that when the Navajo Nation punishes one of its tribal member for violating a tribal law, it is acting as an independent sovereign rather than an arm of the Federal Government. Thus, a subsequent federal prosecution for a federal crime arising out of same incident is not barred by double jeopardy clause. In other words, both the Tribe and the Federal Government can prosecute and convict a criminal defendant for the same crime, without offending the defendant's constitutional rights.
In this case, Billy Jo Lara, an enrolled member of the Turtle Band of Chippewa Indians, was arrested for public intoxication on the Spirit Lake Nation Reservation for public intoxication. During the arrest, he attacked a Bureau of Indian Affairs (BIA) officer. Lara was convicted of assault in tribal court. Then, he was indicted in federal court for assaulting a federal officer, and Lara moved to dismiss the indictment, arguing that it violated his Federal Double Jeopardy Rights. Thus, the issue in this case is whether a tribe's authority to criminally prosecute American Indians/Alaskan Natives from other tribes is inherent sovereignty within the tribe itself or a federal prosecutorial power that has been intentionally delegated to tribes by Congress. The Supreme Court held that the power to prosecute Indians belonging to tribes is inherent sovereignty and that concurrent federal and tribal prosecutions of these criminals does not violate the Double Jeopardy clause.
In 1831, the State of Georgia arrested Samuel Worcester and other Christian missionaries for residing on Cherokee land without the proper permission and paperwork from Georgia. In response to these arrests, United States Supreme Court addressed the issue of whether the State of Georgia has the right to regulate the travel of non-Indians into Indian Country. The Supreme Court held that Georgia's laws were unconstitutional, reasoning that "The Cherokee nation . . . is a distinct community occupying its own territory in which the laws of Georgia can have no force. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." In other words, only the United States Government, not the States, has the power to restrict travel to Indian Country.
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.