Homeland

Security

FEDERAL LAW ENFORCEMENT TRAINING 

CENTERS 

OFFICE OF CHIEF COUNSEL

ARTESIA LEGAL DIVISION

ARTESIA, NM

INDIAN LAW

HANDBOOK

2016

i

Foreword 

October 2015 

The Federal Law Enforcement Training Centers (FLETC) has a 

vital mission: to train those who protect our homeland. 

As a division of the Office of Chief Counsel, the Artesia Legal 

Division (ALG) is committed to delivering the highest quality legal 

training to law enforcement agencies and partner organizations 

in Indian Country and across the nation. 

In fulfilling this commitment, ALG Attorney-Advisors provide 

training on all areas of criminal law and procedure, including 

Constitutional law, authority and jurisdiction, search and 

seizure, use of force, self-incrimination, courtroom evidence, 

courtroom testimony, electronic law and evidence, criminal 

statutes, and civil liability. 

In addition, ALG provides instruction unique to Indian Country: 

Indian Country Criminal Jurisdiction, Conservation Law, and the 

Indian Civil Rights Act. 

My colleagues and I are pleased to present the first textbook from 

the FLETC that addresses the unique jurisdictional challenges of 

Indian Country: the Indian Law Handbook. 

It is our hope in the ALG that the Indian Law Handbook can serve 

all law enforcement students and law enforcement officers in 

Indian Country and can foster greater cooperation between the 

federal government, state, local, and tribal officers. 

An additional resource for federal, state, local and tribal law 

enforcement officers and agents is the LGD website: 

https://www.fletc.gov/legal-resources
ii 

The LGD website has a number of resources including articles, 

podcasts, links, federal circuit court and Supreme Court case 

digests, and The Federal Law Enforcement Informer. 

We hope to continue to provide excellent legal training programs, 

tools, and resources that meet our mission of training those who 

protect our homeland.

Robert J. Duncan 

Editor 

robert.duncan@fletc.dhs.gov
Current Instructors iii

Current Instructors 

Artesia, New Mexico 

Robert J. Duncan is a graduate of Bacone College (B.S.), 

Oklahoma City University School of Law (J.D.), and the 

University of Tulsa College of Law (LL.M. with honor – American 

Indian and Indigenous Law). He is currently assigned to the 

Artesia Legal Division as an Instructor (Attorney-Advisor) and 

Editor of the Indian Law Handbook. Prior to joining the FLETC, 

he was the Attorney-Advisor and Associate Professor of 

Transnational Law at Bacone College. Mr. Duncan also taught 

state, local and tribal law enforcement officers in the Oklahoma 

Council on Law Enforcement Training and Education Reserve 

Academy. In private practice, he served as an Arbitrator for the 

Cherokee Nation Supreme Court and advised colleges and 

universities on Title IX, VAWA and Clery Act issues. He is a 

member of the bars of the State of Oklahoma, the Cherokee 

Nation, and the Muscogee (Creek) Nation. He may be contacted 

at (575) 748-0416 or robert.duncan@fletc.dhs.gov. 

Joseph P. Haefner graduated from Cornell University in 1985. 

Mr. Haefner served as an Unrestricted Line Officer in the U.S 

Navy, operating in the Western Pacific while forward deployed to 

Sasebo, Japan and participated in Operation Desert Storm as 

part of the USS Nimitz Battle Group. He left active duty in 1993 

and attended Case Western Reserve University School of Law, 

graduating in 1996. He then entered the private practice of law 

as an attorney in Medina, Ohio before being appointed as the 

Deputy Law Director and Prosecutor in Stow, Ohio. In November 

1999, he was elected as the Stow City Law Director and served 

two four-year terms. He joined the FLETC Office of Chief Counsel 

in June 2008 and is physically located at the Artesia, New Mexico 

facility, providing dedicated legal support in the areas of labor, 

employment, and administrative law. In 2012, he added contract 

and fiscal law to his areas of responsibilities supporting the 

Procurement Branch in Artesia. In November 2014, to better 

support the mission at the Artesia Training Facility, Mr. Haefner 

was promoted to Associate Chief Counsel assuming the 

supervision and guidance of the instructional legal division staff. 
iv Current Instructors

Mr. Haefner is licensed to practice law in Ohio. Mr. Haefner can 

be contacted at (575) 746-5799 or Joseph.Haefner@fletc.dhs.gov. 

David Hall is a graduate of the University of Central Oklahoma 

(B.A.) and the University of Oklahoma (J.D.). He has prosecuted 

and defended cases in the state and federal courts of Oklahoma. 

In addition, he has served as the prosecuting attorney for the 

Citizen Potawatomi Nation of Oklahoma and for the Seminole 

Nation of Oklahoma. Mr. Hall can be contacted at (575) 748-8105 

or david.hall@fletc.dhs.gov. 

Michelle M. Heldmyer is a graduate of the Florida State 

University, earning a Bachelor’s Degree in Economics (magna 

cum laude) and a Juris Doctor (with honors) from the Florida 

State University College of Law. She began her legal career as an 

Assistant State Attorney in Jacksonville, Florida, during which 

she was quickly promoted to the Special Prosecutions Unit to 

conduct wiretap operations and investigate and prosecute largescale criminal organizations. After three years in state 

prosecution, Ms. Heldmyer began her 26-year service as an 

Assistant United States Attorney, practicing in Florida and 

Colorado. Ms. Heldmyer has prosecuted all types of criminal 

offenses and tried over 100 cases, including homicides, narcotics, 

fraud, tax, firearms, Indian Country cases and alien crimes, and 

land management violations. In addition, Ms. Heldmyer was an 

instructor for a private consulting firm, during which she taught 

police liability, FOIA and narcotics enterprise tactics, and has 

guest lectured on many occasions at universities, police 

academies and law enforcement training centers. For the past six 

years, Ms. Heldmyer has provided legal update training for the 

Bureau of Land Management, the U.S. Forest Service and the 

U.S. Park Service throughout Western Colorado. Ms. Heldmyer 

has been the recipient of two Director’s Awards for Superior 

Performance from the Department of Justice, the Top Prosecutor 

Award from the Internal Revenue Service, an Exceptional Service 

Award from the Department of Homeland Security, and three 

commendation letters from the Director of the Federal Bureau of 

Investigation. She can be contacted at (575) 746-5986 or 

michelle.heldmyer@fletc.dhs.gov.
Table of Contents v 

Table of Contents 

Chapter 1 – Survey of Indian Law History........................... 1

Chapter 2 – Indian Civil Rights Act .................................. 35

Chapter 3 – Indian Country Criminal Jurisdiction............. 52 

Chapter 4 – Conservation Law......................................... 117 

Chapter 5 – Indian Child Welfare Act............................... 145 

Chapter 6 – Juvenile Law................................................ 169 

Chapter 7 – Chapter 109A Felonies ................................. 191 

Chapter 8 – Rights of Inmates ......................................... 221
Survey of Indian Law History 1

Chapter One

Survey of Indian Law History

1.1 Introduction........................................................... 1

1.2 Discovery through PROCLAMATION OF 1763................ 2

1.3 Johnson v. M’Intosh............................................... 8

1.4 Cherokee Nation v. Georgia .................................. 11

1.5 Worcester v. Georgia ............................................ 15

1.6 Mexican Cession, Pueblo people and the Navajo.... 17

1.7 Treaty-making Gives Way to Plenary Power .......... 25

1.8 Indian Reorganization Act and Self-Governance ... 28

1.9 Indian Self-Determination Act and Beyond ........... 32

1.1 Introduction

For all practical purposes, there are three types of sovereign 

entities in the United States1 – federal, state, and tribal. 

Tribal governments are unique among the three: they possess a 

separate sovereignty that has never been formally incorporated 

into the American constitutional framework, they have histories 

as separate nations that precede that of the United States, and 

they enjoy special recognition under Federal law because the 

nations themselves share treaty relationships with the United 

States. As a result, “the entire field of American Indian law is 

constitutionally, historically, and jurisprudentially characterized 

by exceptionalism.”2 Over the past three hundred fifty years, 

“laws dealing specifically with Indian tribes and Indian people”3

have been revised and reimagined to bring Indians into the 

Constitutional structure of government as individuals in a 

“separate minority population.”4

“Indian” is a term of art in Federal law – it is a word with a specific 

legal meaning separate and distinct from its meaning in ordinary 

use or language. Individually, Indians are defined by statute in 
2 Survey of Indian Law History

the U.S. Code. Generally speaking, an “Indian” is a person who 

is a member of a federally-recognized Indian tribe. An “Indian 

tribe” is any Indian tribe, band, nation, pueblo or other organized 

group or community, including any Alaska Native village or 

regional or village corporation as defined or established pursuant 

to the Alaska Native Claims Settlement Act, which is subject to 

the jurisdiction of the United States and recognized as possessing 

powers of self-government, or recognized as “eligible for the 

special programs and services provided by the United States to 

Indians because of their status as Indians.”5 Likewise, Indian 

Country is legislatively defined and includes areas of tribal 

jurisdiction where criminal jurisdiction has been assumed by the 

United States.

This chapter follows the history of Indian law from early 

settlement in 1607 and the [ROYAL] PROCLAMATION OF 1763 to the 

Indian Self-Determination Act of 1975 and beyond; it is designed 

as a broad survey of Indian law and gives historical context for 

the remainder of this text. The chapters that follow include more 

modern topics such as Indian Country Criminal Jurisdiction, 

Major Crimes Act, Indian Child Welfare Act, the Tribal Law and 

Order Act.

1.2 Discovery through PROCLAMATION OF 1763

Using then-existing doctrines of international law grounded in 

discovery, most European nations laid claim to parts of North 

America without regard for the original inhabitants of the area 

they claimed to discover. While this practice would be condemned 

today, it formed the basis of English claims to areas that would 

later become the United States. Thus, the doctrine of discovery is 

the genesis of our modern-day Indian law.

As early as 1607, England began establishing settlements in 

present-day Virginia, through royal charters granted to groups of 
Survey of Indian Law History 3

colonists and merchants. The settlers established economic 

relationships with the Indian tribes they encountered through 

treaties and accords. These relationships served two purposes for 

England. First, England benefitted financially from the economic 

agreements; second, other European countries would be 

excluded from furthering their own economic interests with the 

Indians. 

Over the next approximately 150 years, England, Spain and 

France all extended their territories throughout the North 

American continent with relatively little fighting amongst 

themselves, and with little resistance from tribes they 

encountered. Some tribes allied with European powers, fought 

other European powers, traded freely, or moved territories.

“Contrary to the overriding principle of acquisition of 

territory by discovery of a terra nullius employed by the 

[Spanish] conquistadores, the subjugation of the 

indigenous peoples on the territory of the present United 

States of America occurred, to some significant degree, on 

paper. This pattern of acquiring lands and securing peace 

and friendship as well as regulating trade by way of formal 

treaty was followed in North America by, among others, the 

Dutch, the French, the British and the early American 

colonists, even the Spanish.”6

By 1760, larger Indian tribes had become increasingly skeptical 

of European peace treaties and the motives behind them. The 

tribes had been displaced further and further west because of 

permanent European settlements and encroachment, some of 

which violated the terms of their agreements. Indian tribes 

became increasingly aware that despite a grudging peace in 

North America, wars between the French and British in Europe 

dramatically reduced both the funds and manpower available to 

keep up an extended campaign against Indian tribes. “Wars with 
4 Survey of Indian Law History

the Dutch, royal indebtedness, the stirrings of revolution in 

Britain, [and] an entrenched colonial government...”7 led to 

Britain concerns Indian tribes like the Six Nations of the Iroquois 

Confederacy would rise up and take advantage of this turmoil. 

By 1760, “widespread encroachment on Indian land, 

mismanagement of Indian trade, and hostilities with the French 

created the need for a centralized Indian policy, particularly for 

acquiring Indian land,”8 to prevent war with the tribes:

“When war with France ended, Britain began to assess the 

reasons for initial hostility or neutrality among the Indian 

tribes. Conflict over land was one obvious source of 

discord. Accordingly, London embarked on a program for 

centralizing the management of control over land policies, 

contemplating ultimate extension of this centralization to 

trade and other areas of Indian affairs.”9

King George’s advisors were acutely aware that many tribes 

resented the British and incursions by land speculators into 

Indian territory formerly protected by the French could lead to an 

unwinnable multi-front war. Rather than continue to violate 

treaties and risk war with Indians, the Crown issued

PROCLAMATION OF 1763. By royal decree, all private purchases of 

Indian land except by the Crown were be null and void under 

English law.10

By 1774, Britain had also lost its firm control over the colonies; 

the American Revolution was close at hand and the colonists had 

already elected delegates to represent their interests in a 

Continental Congress. Formed to declare independence from 

Great Britain, this new Continental Congress understood that 

independence from British rule would mean a lack of military 

support in the event of conflict with the tribes. Thus, almost 

immediately after its formation, the Continental Congress 
Survey of Indian Law History 5

pledged itself to “secure and preserve the friendship of the Indian 

nations”11 by restraining land speculators from encroaching on 

Indian countryi

.

The Continental Congress also established departments of Indian 

Affairs (northern, central, and southern) with Patrick Henry and 

Benjamin Franklin serving among the early commissioners. The 

goal of these departments was to negotiate treaties or at least 

ensure neutrality among Indian nations (particularly the 

Cherokee, Choctaw, Chickasaw, Muscogee [Creek], and the Six 

Nations Iroquois Confederacy [Cayuga, Mohawk, Oneida, 

Onondaga, Seneca, and Tuscarora].) 

At the end of the Revolutionary War, General Cornwallis, in his 

capacity as commander of British forces against the colonies, 

surrendered all British claims in 1781 and “the powers of 

government, and the right to soil, which had previously been in 

Great Britain, passed definitively to [the United States].”12

The right to government did not mean that an effective 

government had been created, however. There was no central 

power to restrain settlers or land speculators from entering onto 

Indian lands in the United States; the Continental Congress 

could not enforce its treaty obligations with Indian tribes on the 

states. War with Indian tribes was a very real threat at the time, 

primarily because of land incursions by both individuals and by 

the several states. 

In a series of letters, George Washington encouraged Congress to 

establish a boundary line between the new States and existing 

Indian nations to prevent war from breaking out.13 In 1784,

however, George Washington found land speculation still 

continued north of the Ohio River. “In defiance of the 

 i The use of Indian country here predates the term of art as used in the United 

States Code; in this text, a capitalized “Indian Country” refers to the territory 

described in Title 18.
6 Survey of Indian Law History

proclamation of Congress,” he lamented, “[speculators] roam over 

the Country on the Indian side [...] and even settle them. This 

gives great discontent to the Indians, and will unless measures 

are taken in time to prevent it, inevitably produce a war with the 

western Tribes.”14

As a result, President Washington made several strong treaties 

promoting friendship and commerce with Indian tribes and urged 

Congress to pass laws restraining encroachment on Indian land. 

Early treaties with Indian tribes were treated by the Supreme 

Court15 in the same way as treaties with European powers. 

Washington’s letters and treaties expressing the importance of 

building trade rather than warfare were influential in the 

development of the Constitution. 

When the Constitution was adopted to replace the Articles of 

Confederation in 1787, Congress was given broad powers “[t]o 

regulate Commerce with foreign Nations, and among the several 

States, and with the Indian Tribes”16 under what is known today 

as the Indian Commerce Clause. This constitutional clause 

prohibited the acquisition of Indian land by the several states, 

which largely prevented war with Indian tribes on the frontier; it 

would later serve as the source of federal plenary power over 

Indian affairs.

In 1789, Congress established the War Department and 

appointed a Secretary of War; one of the responsibilities of the 

Secretary of War was “granting of lands to persons entitled 

thereto, for military services rendered to the United States” or 

duties “relative to Indian affairs.”17 Through an exclusive right to 

acquire property under the Indian Commerce Clause, the War 

Department managed Indian affairs with allied tribes (by virtue 

of their alliance with the United States) and hostile tribes (by 

assumption of rights passed on by Great Britain) alike.
Survey of Indian Law History 7

With debts from the Revolutionary War, the War Department 

government often purchased land from Indian tribes and paid 

military veterans in land instead of currency. Unscrupulous land 

spectators, however, began acquiring more Indian land by illegal 

purchases or outright fraud. As a result, Congress passed 

additional acts in 1790 to preserve the government’s exclusive 

right to acquire property from Indian tribes.18

In 1806, the War Department established an office and 

superintendent of Indian trade. Federally appointed Indian 

agents and superintendents, working closely with territorial 

governors and reporting to the Secretary of War, handled the 

government’s relations with tribes. These individuals were 

responsible for restricting the liquor trade in Indian Country, 

issuing trade licenses, detailing Indian activities to the War 

Department, and keeping land speculators at bay.

Land speculators, however, were undeterred by the War 

Department’s efforts, and incursions into Indian land took place 

with increasing regularlity from 1790 until after the War of 1812. 

Without the knowledge of Indian agents, the British and Spanish 

also covertly supplied arms to a small number of Indian tribes 

that actively fought against the United States in protest of these 

land incursions.

By 1813, widespread fear in the Muscogee (Creek) Nation that 

land speculators and Indian agents would overrun Indian lands 

fueled a civil war between factions of the Muscogee (Creek) 

Nation: a progressive faction wished to have peace with the 

United States and allow limited settlement, while a traditionalist 

faction wished to expel the settlers from their lands as other 

tribes had done. The traditionalist faction of the Creek was the 

most militant and fought against the United States in several 

border raids and minor skirmishes; they adopted the name “Red 

Sticks” because of the scarlet war clubs they carried.19
8 Survey of Indian Law History

Despite the fact that the majority of the Muscogee (Creek) people 

did not wish to fight with the United States and that the Red 

Sticks were only a small faction, the United States did not 

attempt to aid the legitimate Creek government. Instead, General 

Andrew Jackson led a disproportionately large force of “3,500 

militia men along with 1,000 Georgia volunteers”20 through 

Creek territory in late 1813 in retaliation for Red Sticks border 

skirmishes. This force engaged in a punitive campaign not just 

against the Red Sticks, but any possible Creek resistance to the 

incursions of settlers and land speculators; the campaign ended 

with the killing of over nine hundred Red Sticks in the Battle of 

Horseshoe Bend. 

Jackson’s campaign demonstrated that military victory over 

Indian tribes—unthinkable in President Washington’s day—was 

now possible thanks to modern arms and tactics. As war or 

diplomacy were the only two recourses for broken treaties, tribes 

like the Creek were left to rely on international allies for aid. 

However, Indians had no international allies to argue their cause 

and the British and French in no position to intervene because 

of the Napoleonic Wars.21 Moreover, Jackson had stirred public 

sentiment against the Indians with news of his victories, and land 

speculators saw an opportunity to push forward towards Indian 

Country on a unprecedented scale.

1.3 Johnson v. M’Intosh

By 1813, Jackson demonstrated that Indian tribes no longer 

posed a credible military threat to the United States. With 

demand for Indian land now greatly increased and with public 

opinion set firmly against the tribes, the several states were 

greatly pressured by their citizens to open lands for settlement. 

The Indian Commerce Clause restrained the states from 

acquiring Indian land, but demand grew for twenty years. 
Survey of Indian Law History 9

In 1823, a collusive suit between land speculators embroiled the 

Supreme Court in an Indian land dispute case. The tribe that 

once owned the land at issue was not included in the lawsuit; the 

case was brought by two land speculators to test the legality of 

Indian land purchases. 

In Johnson v. M’Intosh,22 the plaintiff in the case had purchased 

land from the Piankeshaw Indians and the defendant claimed 

title to the land through a land patent issued by the United 

States. This case was a simple “action of ejectment,” one intended 

by the plaintiffs to recognize an Indian tribes’ ability to sell land, 

for individuals to hold title, and for individuals holding title to 

exercise rights of possession.

The Supreme Court held the land belonged to the defendant, who 

had acquired it by United States land patent. In deciding the 

case, the Supreme Court ignored any possessory rights of Indian 

tribes before contact with Europeans. The result of the decision, 

written by Justice Marshall, was to use a “doctrine of discovery”

to put forward two important principles of Indian law. First, the 

United States holds superior title over Indian land against any 

other party, including Indian tribes. Second, only the United 

States can exercise dominion over Indian affairs or the grant of 

land patents in areas of Indian land.

In the opinion, Justice Marshall reasoned that Great Britain 

alone had sovereign powers over the territories it discovered, and 

the PROCLAMATION OF 1763 restricted alienation of Indian land 

except by grants from the Crown. In Justice Marshall’s view, 

discovering European powers assumed sovereignty of the lands 

they claimed and indigenous people could thus be defeated, 

assimilated, or granted a right of occupation – in any case, both 

the land and the right to govern it flowed from discovery to 

European powers regardless of what title the Indians held.23
10 Survey of Indian Law History

Since the British discovered the Cherokee Nation but neither 

defeated or assimilated them, the British granted the Cherokee 

Nation a right of occupation only. Thus, any purchaser who 

acquired land from the Indian tribes outside of a land patent had 

a defective chain of title; the plaintiffs in this case were 

considered to have only the right of occupancy as the tribes 

themselves had and could only assert title in the domestic 

property law of the tribe.24

Therefore, tribes could not enter into treaties or exchanges for 

land with anyone other than the discovering nation. States may 

have had former charters from the Crown, but “a charter 

intended to convey political power only, [and] would never 

contain words expressly granting the land, the soil, and the 

waters.”25 The land, the soil, and the waters belonged to the 

Crown; charters of political power could be revoked at the King’s 

pleasure.

The “soil as well as jurisdiction” of formerly English holdings 

belonged to the “government of the Union”26 after the Revolution 

and the language in the Commerce Clause27 prevented the States 

from exercising any foreign relations with the Indian tribes. Title 

must first be recognized by a government before title is 

enforceable in that sovereign’s court; the laws of the United 

States recognize the exclusive power28 of that sovereign, not an 

Indian tribe, to grant title. The defendant’s title could be followed 

from the line of discovery to the English crown’s exercise of its 

authority to extinguish title, then onward from dominion over 

those lands from Great Britain, then finally to the United States 

by treaty. Tribes were only “domestic dependent nations” with 

rights of possession, so a land patent by the United States was 

superior to any prior land grant from the Piankeshaw. Thus, to 

enforce ownership rights in the domestic legal system of the 

United States rather than the domestic legal system of Indian 

tribes, one had to rely on a land patent.
Survey of Indian Law History 11

The sovereignty of the United States had always been considered 

superior to the sovereignty of the individual States, but now 

“judicial alchemy in the domestic courts...transformed the 

United States from a discovering nation into a superior 

sovereign.”29

1.4 Cherokee Nation v. Georgia

Indian affairs reached another legal turning point in 1831, when 

the Cherokee Nation sued to preserve the United States’ promise 

of a homeland with self-governance. 

Nearly twenty years before M’Intosh was decided, the United 

States entered into an agreement with the State of Georgia as a 

result of Andrew Jackson’s 1813 campaign against the Red 

Sticks. With the threat of warfare with Indian tribes greatly 

diminished, “the federal government promised that it would, at 

its own expense, extinguish Indian title to land ‘within’ the 

boundaries of the state ‘as soon as it could be done peaceably 

and on reasonable terms.”30

The United States was a superior sovereign to Georgia; therefore, 

those reasonable terms would have been negotiated by the 

President through treaty. During the early nineteenth century, 

“[n]early all treaties [with southern U.S. tribes] provided that the 

tribe would retain reservation lands as permanent homelands; 

the treaties also recognized the tribe’s sovereignty and contained 

promises by the United States [that the government] would 

ensure the well-being of tribal members.”31 Until 1829, every 

President had followed the example of George Washington and 

refrained from considering the issue of extinguishing Indian title 

on a large scale.
12 Survey of Indian Law History

With previous land sales and Indian agents handling Indian 

affairs, it was widely believed by ordinary Americans that Indian 

tribes would readily agree to permanent homelands in newly 

acquired territory; this would allow settlement to continue in 

former Indian lands and tribes moved westward.32 As acquiring 

Indian land became increasingly important to the Executive 

Branch, Secretary of War John C. Calhoun administratively 

created the Bureau of Indian Affairs; in 1824, he appointed 

Thomas McKenney as the bureau’s first head. 

McKenney was to oversee treaty negotiations (which included 

cession of land), manage Indian schools, and administer Indian 

trade, as well as handle all expenditures and correspondence 

concerning Indian affairs. Like Calhoun, “most whites were 

guided by the belief that it was only a matter of years before all 

the discussion would be but a moot issue and the Indians would 

be gone from lands east of the Mississippi which then constituted 

the border of the United States,”33 but tribes resisted leaving 

sacred homelands. With their resistance, states grew increasingly 

frustrated at the lack of progress in extinguishing Indian title by 

treaty alone and urged the President to take action.

When Andrew Jackson campaigned for President, he was billed 

as a man who would do all he could to extinguish Indian title and 

support expansion. Jackson’s fearsome reputation as an Indian 

fighter in skirmishes against the Creek, Choctaw, Cherokee, 

Chickasaw, and Seminole led to his election by people who 

expected him to use the full power of the federal government to 

remove Indians occupying land in the eastern United States.34

He did not disappoint them; President Jackson announced his 

support for a new Indian removal bill early in his first term, 

despite the government’s expenditure on Indian schools and 

public works.35
Survey of Indian Law History 13

After Jackson’s experiences with the Red Sticks, he believed 

(somewhat unrealistically) that Indian tribes would soon engage 

in covert war against the United States,36 so removal was now 

widely “considered a possible ‘solution’ to the Indian problem.”37

In reality, Indian tribes had very little chance of successfully 

resisting removal. Border skirmishes with volunteers and militia 

had already led to hundreds of deaths among the Creek and 

Cherokee, and these skirmishes could escalate into war with 

regular U.S. troops. In the 1770s, the Continental Congress had 

entered into treaties on Indian terms to avoid an unwinnable war 

with tribes that were backed by European powers.38 By this time, 

however, the United States had become a powerful force and 

tribes were left without European allies to supply arms. Using his 

removal bill and the “discovery doctrine” of M’Intosh, President 

Jackson planned to force Indian tribes westward into former 

Spanish territories. Facing armed conflict with state skirmishers 

and the uncertainty of federal aid, tribes accepted removal 

treaties as a means of self-protection.

Despite treaties with the federal governments, the Cherokee 

experienced the first significant and organized push for 

widespread Indian removal on December 29, 1828, when “the 

legislature of the State of Georgia enacted legislation which 

purported to annex Cherokee Nation lands to Georgia counties, 

open those lands for settlement, and annul all laws, ordinances 

or orders of the Cherokee Nation.”39

The Cherokee resisted this legislation, but gold was discovered 

on Cherokee land in 1829 and President Jackson granted a 

request by Georgia’s governor for “soldiers to enforce Georgia 

laws in the Indian territory. This enforcement included the arrest 

of Cherokees and citizens of ‘foreign’ states, such as North 

Carolina, found mining on the Indian lands.”40

The United States had promised a homeland with selfgovernance by treaty, and the Cherokee Nation sued to preserve 
14 Survey of Indian Law History

that promise in 1831.41 During the suit, the Cherokee Nation 

argued the Supreme Court had jurisdiction over the matter, “by 

the constitution and laws of the United States, original 

jurisdiction of controversies between a state and a foreign state, 

without any restriction as to the nature of the controversy.” The 

Cherokee also argued the Supreme Court had the power to 

restrain Georgia’s incursion into Cherokee territory, since 

President Jackson failed to restrain the state.

“The Chief Justice, who had overestimated the savagery of the 

Indians in his M’Intosh analysis, now underestimated the 

savagery of the federal authorities under President Jackson,”42

and faced a difficult decision: acknowledge the Constitution’s 

grant of jurisdiction and anger the President, or avoid assuming 

jurisdiction and preserve the Court’s relationship with the 

Executive Branch. Marshall chose the latter, and held the 

complaint of the Cherokee Nation would require the Court to 

intrude into the political arena.43

Marshall’s holding prevented the Supreme Court from 

intervening directly, but also required the United States to take 

action when the tribes were threatened. As dependent domestic 

nations, Indian tribes relied on protection from the United States 

from any over sovereign – including states. For tribes, “[t]heir 

relation to the United States resembles that of a ward to his 

guardian”44 and thus the United States was duty-bound to 

protect the Cherokee homelands from state intrusion.

This holding marks the recognition of the trust responsibility that 

forms the basis for the obligation of the United States to provide 

funding for healthcare, policing, and other self-governance 

functions. In 1832, at the behest of McKenney, Congress formally 

mandated the Bureau of Indian Affairs and approved the 

appointment of a Commissioner of Indian Affairs, under whose 

authority rested the management and direction of all Indian 
Survey of Indian Law History 15

affairs and the responsibility to meet the responsibilities arising 

from federal trust responsibility. 

1.5 Worcester v. Georgia

At the time of Cherokee Nation v. Georgia, treaties often included 

funds for educational institutions on Indian land and licenses for 

Christian missionaries to preach or to build churches and 

schools in Indian territory. In the nineteenth century, 

denominations such as the American Baptist Home Mission 

Society sought licenses from the President of the United States

to enter Indian Country and assist the tribes they encountered.

Emboldened by the Supreme Court’s refusal to intercede, the 

State of Georgia passed a law barring entry into the Cherokee 

Nation almost immediately after the ruling. The law was 

purposely written to ensure the Cherokee could not count on 

outside help to resist or disrupt state-run gold mining 

operations.45 In defiance of Georgia’s law, the Rev. Samuel 

Worchester and a fellow Christian missionary entered the 

Cherokee Nation in 1831. Both were arrested and tried in Georgia 

state court, where they were convicted and sentenced to hard 

labor. Worcester appealed his conviction to the Supreme Court 

by asserting that he was not only a United States citizen, but was 

also granted a license by the Executive Office to enter the 

Cherokee Nation.46

Three years prior to Worcester’s conviction, Justice Marshall 

wrote in Foster v. Neilson,47 that the “constitution declares a 

treaty to be the law of the land. It is, consequently, to be regarded 

in courts of justice as equivalent to an act of the legislature, 

whenever it operates of itself without the aid of any legislative 

provision.” The Cherokee Nation could thus demand the United 

States assert its superior sovereignty whenever state action 

conflicted with federal treaty obligations. 
16 Survey of Indian Law History

In Worchester v. Georgia, the Supreme Court held that treaty 

guarantees to the Cherokee Nation by the United States that 

“constituted a geographic preemption of state power caused by 

the federal guarantees of territorial autonomy to the tribe.”

Justice Marshall found a “blatant inconsistency between the 

Georgia law and the federal Trade and Intercourse Acts” which 

left the United States with a duty to assert jurisdiction over 

Indian affairs:48

“Indian nations possessed a full right to the lands they 

occupied, until that right should be extinguished by the 

United States, with their consent: that their territory was 

separated from that of any state within whose chartered 

limits they might reside, by a boundary line, established by 

treaties: that, within their boundary, they possessed rights 

with which no state could interfere: and that the whole 

power of regulating the intercourse with them, was vested 

in the United States.”49

Marshall may have meant to protect tribal self-government with 

assurances that the several states would be required to respect 

treaty obligations of the United States as a whole, but “the 

President and Congress used the strong federal power the Court 

had now endorsed to remove the Cherokee and the other eastern 

tribes to territories west of the Mississippi.”50 There was intense, 

but fleeting interest in the plight of the Cherokee:

“Both sides were supported by powerful political, legal, and 

cultural forces. Georgia had a powerful ally in President 

Andrew Jackson, who made his political fortunes leading 

expansion, and spent most of his life fighting on behalf of 

his country against Native Americans and foreign 

powers[...] Worcester and the Cherokee Nation also had 

allies and enjoyed a degree of public support. Notably, 

Daniel Webster, who moved ‘from debating political issues 
Survey of Indian Law History 17

in the Senate to arguing in the Supreme Court,’ and Henry 

Clay, the former Secretary of State known as the ‘Great 

Compromiser,’ both supported the Cherokee Nation, as did 

Davy Crockett, a cultural icon and Congressman.”51

Expansion eventually won out over tribal sovereignty. Public 

pressure to remove the Cherokee to “outside” territory intensified 

to such an extent that Congress ratified the Treaty of New Echota 

in 1835, despite clear evidence that a minority party of the 

Cherokees was coerced to sign. In exchange for a promised 

payment of $1 million—which was not paid until 1906—the 

Cherokee ceded their lands to the federal government and were 

forcibly removed in 1838.52

Nearly 14,000 Cherokee were removed along the “Trail of Tears,”

where over 4,000 died from exhaustion and exposure to cold on 

the way to present-day Oklahoma in Indian Territory. The 

Supreme Court recognized in later cases that the Cherokee were 

not afforded even a basic level of medical care, an omission which 

formed the basis of many healthcare related trust responsibilities 

today.53

1.6 Mexican Cession, Pueblo people and the Navajo

In addition to eastern tribes that faced forcible removal, the 

United States also owes trust responsibilities to tribes in former

Spanish colonies by way of the Mexican-American War. With the 

Treaty of Guadeloupe Hidalgo came large cessions of land from 

Mexico to the United States – including lands held by western 

tribes, held in fee simple under Mexican law. 

The King of Spain granted formal title to the Pueblo people in 

1689, and that title was recognized even after independence from 

Spain; Mexico treated Indian tribes as Mexican citizens and 

incorporated their property rights into Mexican law. As tribes 
18 Survey of Indian Law History

with property rights were recognized by the Mexican legal system, 

title to Indian property held in fee simple was also recognized by 

the United States under the Treaty of Guadeloupe Hidalgo. “[I]n 

contrast to Anglo-American law, Mexican law recognized Native 

Americans as Mexican citizens,”54 and Indians enjoyed 

considerable (and more importantly, enforceable) property rights. 

With these land grants from the King of Spain to Pueblo people, 

“Americans encountered a fully developed Spanish-Mexican legal 

system, as well as an entrenched system of canon law in the 

Catholic Church. This was, of course, a new scenario for the 

Americans, since they had previously encountered Indian 

communities living under circumstances which, from their 

European-biased views, did not evoke established societies with 

institutions.”55

Following the war’s end in 1848, the United States administered 

a great deal of territory through an unusual distribution of 

federal offices: the General Land Office was part of the Treasury, 

and the Bureau of Indian Affairs office was part of the 

Department of War. When the Department of the Interior was 

created, responsibility for the Bureau of Indian Affairs moved to 

the new department in 1829 but the Army remained heavily 

involved in Indian affairs.

With the Pueblo people and other tribes owning their land in fee 

simple, rather than having a mere right of possession as Marshall 

held with the Cherokee, the United States could not simply take 

the land and issue patents without violating its treaty with 

Mexico; the treaty required the United States to respect the 

property rights of Mexican citizens in the ceded territory.

The new Department of Interior did not wish to purchase Pueblo 

lands or otherwise find a way to secure title to land that was 

ceded by Mexico but occupied by the Navajo, so the United States 
Survey of Indian Law History 19

created a legal fiction that the Pueblo people and the Navajo did 

not elect to be Mexican citizens under the treaty and thus were 

dependent domestic nations without property rights:

“The most controversial sections of the Treaty, and the 

ones that would have the most lasting impact, were those 

dealing with the citizenship and property rights of the 

former Mexican citizens residing in the ceded territories. 

Articles VIII and IX of the Treaty of Guadalupe Hidalgo set 

forth the terms by which the former Mexican citizens and 

their property would be incorporated politically into the 

United States. These articles in the treaty affected some 

100,000 Mexicans in the newly acquired territories, 

including a large number of Hispanicized and nomadic 

Indians in New Mexico and California. As provided by 

Article VIII, a person had one year to ‘elect’ his or her 

preference for Mexican citizenship. If this were not done, it 

was stipulated that they had elected to become United 

States citizens and that they would be granted citizenship 

by Congress at some future time.”56

The United States was prepared to forcibly establish reservations 

in Navajo lands in an effort to diminish the tribal structures of 

the Navajo (just as they had done with eastern tribes), but the 

outbreak of the Civil War insulated the Navajo from significant 

interference by the government. Federal troops returned to 

Navajo lands until 1861, but the Navajo were once again left 

alone as federal troops engaged in a punitive military campaign 

against the Apache during the Chiricahua Wars. When Fort 

Wingate was built on the edge of Navajo borders in 1868, eighteen 

headmen or “peace chiefs” later went to ask Army officers for a 

treaty of peace and co-existence between the Navajo and the 

United States.
20 Survey of Indian Law History

Rather than a treaty with Indian agents, “peace chiefs” were given 

an ultimatum from the Army officers in charge. The Navajo could 

remove their people 50 miles away from any settlement in the 

Bosque Redondo reservation, where they were promised to expect 

ample game and water, Army supplies and Army doctors. The 

other alternative was war: 57

“We have no desire to make war upon [the peace chiefs] or 

other good Navajoes; but the troops cannot tell the good 

from the bad, and we cannot tolerate their staying as a 

peace party among those upon whom we intent to make 

war...[A]fter a deadline of July 20, 1863], every Navajo that 

is seen [outside of Bosque Redondo] will be considered as 

hostile and treated accordingly...after that day the door 

now open will be closed.”58

The Navajo refused the ultimatum, because it meant moving 

away from their sacred homeland—Dinetah. When they refused 

to remove to Bosque Redondo, the Navajo were brought there by 

force:

“In 1864, the federal government forcefully relocated 

thousands of Navajos from their homeland to a prison 

camp at Bosque Redondo, a period known as the “Long 

Walk,” during which hundreds perished along the way, 

longing to return to the traditional homeland cradled by 

the four sacred mountains. Indeed, the Navajos’

attachment to their sacred homeland was one of the main 

factors inspiring their resistance to relocation until the 

federal government initiated a campaign to destroy their 

villages, livestock, and all sources of food, thereby forcing 

them to relocate or perish. Four years later, the Navajos 

prevailed and negotiated a federal treaty restoring their 

rights to return home to occupy, govern, and live on a 
Survey of Indian Law History 21

reservation that was within—although smaller than—their 

traditional territory.”59

The conditions at Bosque Redondo soon became hopeless. After 

four years of starvation and disease, the Navajo “had sunk into a 

condition of absolute poverty and despair” and the Army realized 

that they could do nothing to improve their condition. With “the 

nation’s holdings now stretching all the way to the Pacific Ocean, 

it must have become plain to policymakers that the tribes could 

not be removed forever west,” especially when Indians already 

owned land in the new territories.60

In 1867, Congress appointed a Peace Commission to study and 

address the problems found across the country in reservations 

administered by the Army. The Peace Commission recommended 

many changes to Congress, including the appointment of honest, 

effective agents and independence for the BIA to manage Indian 

affairs without Army interference. As a result, the Navajo were 

returned to a smaller section of their homeland by treaty in 1868. 

Leaving the Navajo on an isolated reservation with a handful of 

Indian agents to manage them was less expensive than a second 

removal by cavalry units.

As the western territories became states, the federal government 

required the creation of Indian reservation areas as a condition 

of admittance to the Union. The Department of Interior then 

“established the first western-style courts on Indian land. 

Specifically, the Secretary of the Interior created the Courts of 

Indian Offenses to replace tribal forms of justice and “to promote 

acculturation on the reservations and to help ‘civilize’ the 

Indians.”61 These courts were also referred to as “CFR” courts 

because they operated under the federal regulations set forth in 

volume 25 of the Code of Federal Regulations, not tribal law or 

custom. In 1869, Thomas Lightfoot—United States Indian Agent 

to the Iowa and the Sac and Fox tribes in Nebraska—became the 
22 Survey of Indian Law History

first agent to report the establishment of a federally-sponsored 

Indian police department.

Just as the United States had begun to replace traditional tribal 

government with CFR courts and Indian agents, a significant 

backlash brought a long-brewing feud amongst members of the 

Brulé Lakota to a head:

“Early in the afternoon on August 5, 1881, a Sioux 

medicine man named Crow Dog (Kan-gi-shun-ca) shot and 

killed a popular Sioux chief named Spotted Tail (Sin-ta-gale-Scka) on a dusty road in the Great Sioux Reservation of 

the Dakota Territory. Spotted Tail had been a peaceful 

leader of the Sioux whom the federal government 

supported because he acted as a buffer between it and 

radical traditionalist chiefs like Sitting Bull and Crazy 

Horse. His conciliatory stance towards the U.S. 

government angered many of his fellow Sioux and probably 

served as the impetus for his murder by Crow Dog. After 

the murder, Crow Dog’s family met with Spotted Tail’s 

family. As Indian tradition prescribed, they reached a 

compensation agreement to settle the murder. Following 

tribal law, Crow Dog’s family agreed to pay Spotted Tail’s 

family $600 in cash, eight horses, and one blanket. As far 

as the tribe was concerned, the matter was settled.”62

Outraged by the murder of a potential ally among the Brulé 

Lakota, the United States charged Crow Dog of murder in the 

federal territorial court. The statute used to prosecute Crow Dog 

was passed after the Trade and Intercourse Act of 1790, and was 

intended to be a means to protect Indians from non-Indian 

offenders, not to prosecute Indians themselves.63

Crow Dog appealed his conviction to the Supreme Court,64 and 

argued that the laws passed by the United States were meant to 
Survey of Indian Law History 23

punish non-Indians and not supersede tribal law. These laws 

were meant to enforce the treaty obligations of the United States:

“If bad men among the Indians shall commit a wrong or 

depredation upon the person or property of anyone, white, 

black, or Indian, subject to the authority of the United 

States and at peace therewith, the Indians herein named 

solemnly agree that they will, upon proof made to their 

agent and notice by him, deliver up the wrongdoer to the 

United States, to be tried and punished according to its 

laws.”65

The Supreme Court agreed with Crow Dog’s position. Crow Dog 

had already reconciled with the tribe and Spotted Tail’s family 

under tribal law; for the Brulé Lakota, that was the end of the 

matter. Allowing a prosecution under the laws of the United 

States after the Brulé Lakota already resolved the matter would 

impose the rules of strangers who were ignorant of Indian norms 

and customs on tribal law, and would create offenses without 

knowledge or prior warning of western crimes; this outcome was 

contrary to the laws passed by the United States to protect Indian 

tribes and traditional societies.66

Western-style justice is largely about punishing wrongdoers, not 

restoring community. In many traditional societies, “people talk 

things out to achieve consensus and to resolve disputes in an 

orderly way. There are family and clan gatherings where people 

talk about a perpetrator and a victim’s problem, and both the 

perpetrator and victim can participate. They also have people 

(usually clan relations) who speak for them.”67 These disputes do 

not make distinctions between what in western courts would be 

civil or criminal cases; preservation of societal norms and 

reconciliation are the goal in all cases. The rules and laws laid 

down by CFR courts did not incorporate reconciliation and were 
24 Survey of Indian Law History

not part of the traditional peacemaking ways of the Brulé Lakota, 

Cherokee, Navajo or other tribes:

“Law, in Anglo definitions and practice, is written rules 

which are enforced by authority figures. It is man-made. 

Its essence is power and force. The legislatures, courts, or 

administrative agencies who make the rules are made up 

of strangers to the actual problems or conflicts which 

prompted their development. When the rules are applied to 

people in conflict, other strangers stand in judgment and 

police and prisons serve to enforce those judgments.”68

Following the Long Walk and Crow Dog, the United States 

realized that traditional methods of governance and peacemaking 

lessened individual Indians’ allegiance to the United States:

“Native Americans maintaining tribal relations owed no 

political allegiance to the federal union. They were neither 

citizens nor subjects of the federal government or any 

states in which they might reside. They were, rather, 

members and citizens of a different nation — their tribe —

and were subject to its governance in all matters of tribal 

affairs. This relationship bound them into a complex web 

of family, clan, religious, and society relationships that 

defined Indian tribal allegiance.”69

After the events of Crow Dog, Congress authorized additional 

Indian police forces in 1878 to further undermine the traditional 

role of clans and leaders in resolving disputes; federal regulations 

often forbade the practice of Indian ceremonies and required 

Indians to perform manual labor for their rations. In 1885, 

Congress passed the Major Crimes Act (discussed in further 

chapters), placing crimes like murder under federal jurisdiction 

even if they occurred on Indian country. The stated goal was to 
Survey of Indian Law History 25

reduce the role of traditional peacemaking in serious crimes; the 

practical effect was to further control Indian tribes.

1.7 Treaty-making Gives Way to Plenary Power

By 1886, the federal government ended its practice of negotiating 

treaties with traditional consensus-based tribal governments in 

favor of direct legislation. This practice was upheld in United 

States v. Kagama70:

“[A]fter an experience of a hundred years of the treatymaking system of government, congress has determined 

upon a new departure, to govern them by acts of congress. 

This is seen in the act of March 3, 1871, embodied in 

section 2079 of the Revised Statutes: ‘No Indian nation or 

tribe, within the territory of the United States, shall be 

acknowledged or recognized as an independent nation, 

tribe, or power, with whom the United States may contract 

by treaty; but no obligation of any treaty lawfully made and 

ratified with any such Indian nation or tribe prior to March 

3, 1871, shall be hereby invalidated or impaired.’”

Following Kagama, Congress decided to exercise its plenary 

power and adopt a policy of assimilation. Assimilation was a 

misguided federal policy of trying to force Indian people to give 

up their cultures, languages, and traditions, and adopt 

mainstream American values and ways of life. At the time, tribal 

economies were languishing and many Indians were living in 

poverty. Moreover, settlers, ranchers and prospectors were 

pushing to break up tribal landmasses in the western territories 

by opening up Indian reservations to settlement. 

The government asserted that Indians could prosper if they could 

acquire individual plots of land to cultivate and establish trade 

with nearby non-Indian settlements. The goal was to convert 
26 Survey of Indian Law History

Indians into middle-class farmers who would assimilate into the 

mainstream of American culture.

Bolstered by the Kagama decision, the United States adopted a 

policy called “allotment” in 1887 to accelerate the process of 

assimilation. Acting under the authority of the General Allotment 

Act of 1887, also known as the Dawes Act, BIA agents surveyed 

reservations, consolidated tribal land into a single parcel, then 

subdivided this parcel into smaller individual parcels and 

assigned lands to individual Indians. The agents also oversaw the 

sale of what were labeled “surplus” lands to non-Indian settlers.

Title to the parcels allotted to individual Indians remained with 

the United States for 25 years, which exempted the land from 

state taxation and any encumbrances. In theory, this trust status 

period would allow the Indian allottees to learn how to farm and 

raise livestock. It would also permit the allottees to learn how to 

adopt “the habits of civilized life” without state intervention. After 

a period of 25 years from the date of allotment, the land would 

be conveyed in fee simple to the Indian allottee, who then became 

a U.S. citizen. As a result, the individual Indian would be subject 

to the criminal and civil laws of the state rather than tribal law. 

In practice, many Indians lost their land after receiving fee title 

because they were unable to pay the taxes or were taken 

advantage of through fraud or other unscrupulous dealings by 

non-Indians. 

After individual members of the tribe received their allotments, 

the U.S. negotiated with the tribe for disposing of the “surplus”

lands for non-Indian settlement. These non-Indian settlers 

received patents from the United States for the land, giving them 

title in fee simple absolute. In 1887, at the time the General 

Allotment Act was passed, 138 million acres of land were held 
Survey of Indian Law History 27

exclusively by Indians. When allotment ended 47 years later, in 

1934, Indian land holdings amounted to 52 million acres.71

The 1903 opinion Lone Wolf v. Hitchcock made clear that the 

plenary power of Congress would be exercised over an Indian 

tribe regardless of any treaty rights it might assert.72 As Congress 

asserted greater plenary power, the Supreme Court increased the 

amount of responsibility and accountability expected of the 

Department of the Interior.

“Plenary authority over the tribal relations of the Indians 

has been exercised by Congress from the beginning, and 

the power has always been deemed a political one, not

subject to be controlled by the judicial department of the 

government[...] The power exists to abrogate the provisions 

of an Indian treaty, though presumably such power will be 

exercised only when circumstances arise which will not 

only justify the government in disregarding the stipulations 

of the treaty, but may demand, in the interest of the 

country and the Indians themselves, that it should do 

so.”73

Little popular objection to the wholesale divestment of Indian 

lands was voiced in the nineteenth century. For most Americans, 

“[i]njustice to [Indians] became of interest in politics only as it 

could be used to prejudice a political opponent in the eyes of the 

voters, and Indians had no votes.”74 The Supreme Court, 

however, admonished the President and Congress to use the 

exercise of government over Indians to their benefit, not 

detriment:

“The power of the general government over these remnants 

of a race once powerful, now weak and diminished in

numbers, is necessary to their protection, as well as to the 

safety of those among whom they dwell. It must exist in 
28 Survey of Indian Law History

that government, because it never has existed anywhere 

else; because the theater of its exercise is within the 

geographical limits of the United States; because it has 

never been denied; and because it alone can enforce its 

laws on all the tribes.”

1.8 Indian Reorganization Act and Self-Governance

From 1903 to 1933, the federal government exhibited very little 

interest in Indian affairs outside of the Department of Interior. 

That changed in 1934, when “a new generation of bureaucrats 

who had been brought to Washington by Franklin D. Roosevelt”75 

worked to reverse some of the damage by creating new policies 

and programs for Indian self-sufficiency. “Recognizing the 

inherent injustice of the legal predicament of Native Americans, 

the policies they crafted, collectively dubbed the ‘Indian New 

Deal,’ militated for the strengthening of tribal structures.”76

Roosevelt’s administration successfully urged Congress to pass 

legislation ending allotment; this legislation also extended the 

trust status of allotments still held in trust to an indefinite 

period, and included provisions to purchase any “surplus” tribal 

lands not granted in fee simple to third parties. Consequently, 

allotments are still held in trust for Indians—lands that are 

beneficially owned by an Indian, but over which the federal 

government has a fiduciary responsibility.

Congress also passed the Indian Reorganization Act of 1934 (IRA), 

which gave tribes the choice of opting in to federal programs. The 

IRA would “rehabilitate the Indian’s economic life and to give him 

a chance to develop the initiative destroyed by a century of 

oppression and paternalism.”77 The Roosevelt administration 

was aware that, from the start of allotment in 1887 to its end in 

1934, “the policy had cost Indians almost 90 million acres, twothirds of the land they owned fifty years earlier.”78
Survey of Indian Law History 29

Many Indian tribes were removed to areas with few natural 

resources or opportunity for economic growth; agriculture and 

other industry was greatly curtailed, but the Roosevelt 

administrated wanted to allow Indians to reverse their fortunes:

“This bill[...]seeks to get away from the bureaucratic control 

of the Indian Department, and it seeks further to give the 

Indians the control of their own affairs and of their own 

property; to put it in the hands either of an Indian council or 

in the hands of a corporation to be organized by the 

Indians.’”79

The Navajo and Cherokee had great difficulty in deciding whether 

to accept or reject the IRA because their long-established 

governments already had a consistent body of peacemaking and 

traditional law. Although the IRA contained provisions to 

encourage Indian tribes to adopt constitutions, those 

constitutions would be drafted by the BIA with standardized 

provisions for all tribes. As “[t]he effect of the Act, when all is said 

and done, was to recognize the tribal governments as federal 

corporations and to require them to adopt new constitutions and 

by-laws approved by the Department of the Interior,”80 those 

tribes decided against adopting the IRA. As an example, the 

Navajo “rejected the opportunity to become an IRA tribe in an 

election held on June 17, 1935, by a vote of 7,992 to 7,608.”81

Tribes like the Cherokee and Navajo chose to keep their current 

form of government and engage in nation-building projects82

rather than settle for government subsidies. For the Navajo 

especially, self-determination projects and the “development of 

oil, coal, and uranium on the reservation[s] provided the tribal 

government[s] with discretionary resources for the first time in 

its history...[T]he Navajo government and its constituents 

insisted that Navajo ways and Navajo institutions should govern 

Navajo lives”83 rather than laws drafted by the United States.
30 Survey of Indian Law History

As the Navajo became more self-reliant, Arizona legislators 

looked towards the Navajo Nation as a source of tax revenue, 

which in turn pushed the Navajo to adopt many western legal 

customs:

“The Navajo Nation faced a crisis in 1958 during the 

modern period of Indian assimilation. The Navajo Tribal 

Council saw moves in the Arizona legislature to assert 

criminal and civil jurisdiction over the Navajo Nation; the 

council responded by forming the Navajo Tribal Court. It 

was patterned after state court systems and based on the 

1930s Bureau of Indian Affairs ‘Law and Order’

regulations. It followed the state model too closely; one 

observer concluded that the new Navajo Tribal Court was 

as alien to the Navajo people as state courts.”84

By 1970, the United States recognized the danger inherent in 

states’ attempts to absorb Indian tribes into state jurisdiction. To 

prevent states from interfering with tribal self-government and 

subsequently increasing federal expenditures, President Nixon 

created a roadmap for future legislation promoting Indian selfdetermination:85

“The special relationship between Indians and the Federal 

government is the result instead of solemn obligations 

which have been entered into by the United States 

Government. Down through the years, through written 

treaties and through formal and informal agreements, our 

government has made specific commitments to the Indian 

people. For their part, the Indians have often surrendered 

claims to vast tracts of land and have accepted life on 

government reservations. In exchange, the government has 

agreed to provide community services such as health, 

education and public safety, services which would 

presumably allow Indian communities to enjoy a standard 
Survey of Indian Law History 31

of living comparable to that of other Americans. This goal, 

of course, has never been achieved.”

By 1974, Nixon implemented Indian hiring preferences in the 

Department of Interior to “give Indians a greater participation in 

their own self-government; to further the Government’s trust 

obligation toward the Indian tribes; and to reduce the negative 

effect of having non-Indians administer matters that affect Indian 

tribal life.” To the Supreme Court, such a hiring preference was 

important because healthcare, law enforcement, firefighting, and 

educational services “on the Indian reservations are actually local 

rather than federal services and are comparable to local 

municipal and county services, since they are dealing with purely 

local Indian problems.”86

From Roosevelt to Nixon, Indian tribes enjoyed increasing 

support from the Executive Branch to be recognized as “selfgoverning sovereign political communities” which retained 

“elements of ‘quasi-sovereign’ authority after ceding their lands 

to the United States and announcing their dependence on the 

Federal Government.” Although no longer “possessed of the full 

attributes of sovereignty,” Indian tribes still remained a “separate 

people, with the power of regulating their internal and social 

relations” and enjoyed substantial protection as “distinct, 

independent political communities, retaining their original 

natural rights” in matters of local self-government, but could not 

criminally prosecute non-Indians.87

With this support, tribes increasingly exercised the remaining 

powers of their original natural rights of sovereignty by way of 

tribal self-government and control, such as retaining the power 

to make their own substantive law in internal matters and 

enforcing that law in their own forums. In addition, the Supreme 

Court upheld legislation that singled out Indians for particular 

and special treatment based on treaty relationships and 
32 Survey of Indian Law History

emphasized “the distinctive obligation of trust incumbent upon 

the Government.”88

1.9 Indian Self-Determination Act and Beyond

With the Supreme Court making clear that services for Indian 

tribes were based on political and not racial status, the Executive 

Branch attempted to further advance self-determination and selfsufficiency after the Nixon Administration’s 1970 letter and 1974 

employment mandate. One of the most significant pieces of 

Indian legislation followed this mandate: the Indian Self–

Determination and Education Assistance Act (ISDA).

Before ISDA was passed in 1975, the Department of the Interior 

would only provide law enforcement and other tribal services 

directly through the Bureau of Indian Affairs. The ISDA requires 

the government to enter into contracts for tribes to administer 

designated federal services programs to tribal members directly, 

rather than have those services provided by the federal 

government. Under ISDA, tribes can elect to provide essential 

services like law enforcement directly and be reimbursed by the 

federal government. 

After ISDA, Indian tribes were actively encouraged to take on 

program responsibilities,89 and government agencies were 

encouraged to “recognize Tribal Governments as sovereign 

entities with primary authority and responsibility for the 

reservation populace...[and] view Tribal Governments as the 

appropriate non-federal parties for making decisions and 

carrying out program responsibilities affecting Indian 

reservations.”90

As an example of tribal governments acting as sovereign entities 

with primary authority, the Navajo Nation adopted a six-volume, 

twenty-four title code that transitioned its previous ‘council’ style 
Survey of Indian Law History 33

government to a new three-branch system.91 The Navajo 

government subsequently enacted legislation requiring all 

essential services to be provided by the Navajo Nation (rather 

than the United States) to the extent permissible under ISDA. 

Today, the Navajo Nation provides government services like 

healthcare and policing in an area “bigger than New England and 

almost as big as South Carolina, the 40th state in size.”92 With 

ISDA, the Navajo Nation government provides services directly to 

more enrolled tribal members (more than 300,000 in the 2010 

U.S. Census) in more square miles of tribally-owned land area 

(27,425 square miles in the 2000 American Indian Tribal Census 

Tract) than any other tribe in the United States. The Navajo 

Nation is thus often used as a measure for Indian law and policy, 

and frequently cited for its laws and practices.

Navajo courts have a “highly active and developed tribal court 

system and substantial body of decisional law, including Navajo 

customary law”93 that has become a model for other tribes with 

traditional lawmaking and reconciliation. Navajo Court decisions 

in the later 2000s include language that recites the importance 

of reconciliation and harmony in decision-making; the use of 

reconciliation in law is one reason the Navajo elect to provide 

police services directly to tribal members under ISDA: 

“[Reconciliation] is very much living law, deeply connected 

to the Diné making use of it. We note that many written 

laws assume the baser instinct of human beings and 

attempt to control it through rigid rules. Diné bi 

Beenahaz’áanii assumes our higher instincts, providing 

broad principles of conduct and relationships that each 

person is expected to apply towards goals of reconciliation 

and hozho.”94

As a result of tribes’ renewed efforts to establish courts that meet 
34 Survey of Indian Law History

the same standards as courts established under the 

Constitution, as well as tribes’ efforts to provide services directly 

to enrolled members, Federal law “appears to be accelerating in 

a direction that simultaneously supports the development of 

robust, contemporary tribal law—a goal closely aligned with the 

current stated federal policy of Indian self-determination and 

self-governance—and also cautiously seeks to align tribal judicial 

exercise more closely with American state and federal 

practices.”95
1 See Samantha A. Moppett, Acknowledging America’s First 

Sovereign: Incorporating Tribal Justice Systems into the Legal 

Research and Writing Curriculum, 35 OKLA. CITY U. L. REV. 267,

272 (2010). 2 Kristen A. Carpenter & Angela R. Riley, Indigenous Peoples and 

the Jurisgenerative Moment in Human Rights, 102 CAL. L. REV.

173, 201-02 (2014).

3 G. William Rice, There and Back Again-an Indian Hobbit’s 

Holiday “Indians Teaching Indian Law”, 26 N.M. L. REV. 169, 171 

(1996).

4 ROBERT N. CLINTON ET AL., AMERICAN INDIAN LAW 1 (3d ed. 1991).

5 24 C.F.R. § 1000.48; see also 26 U.S.C.§ 45A; 25 U.S.C. § 

1301.

6 Siegfried Wiessner, American Indian Treaties and Modern 

International Law, 7 ST. THOMAS L. REV. 567, 569-70 (1995).

7 Adam F. Kinney, The Tribe, the Empire, and the Nation: 

Enforceability of Pre-Revolutionary Treaties with Native American 

Tribes, 39 CASE W. RES. J. INT’L L. 897, 899 (2008).

8 Oneida Indian Nation of New York v. State of N.Y., 649 F. Supp. 

420, 425 (N.D.N.Y. 1986) aff’d, 860 F.2d 1145 (2d Cir. 1988).

9 Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to 

Two Centuries of Federal-State Conflict over the Management of 

Indian Affairs, 69 B.U. L. REV. 329, 354 (1989).

10 See ROYAL PROCLAMATION OF OCT. 7, 1763 OF KING GEORGE III; see 

also 1 DOCUMENTS RELATING TO THE CONSTITUTIONAL HISTORY OF 

CANADA 1759-1791 163-68, A. Shortt & A. Dougherty, eds., 2d 

ed. 1918; see also 3 W. WASHBURN, THE AMERICAN INDIAN AND THE 

UNITED STATES 2135-39 (1973).

11 2 JOUR. CONTINENTAL CONG. 174–77 (Jul. 12, 1775).

12 Johnson v. McIntosh, 21 U.S. 543, 584, 5 L. Ed. 681 (1823).

13 See FRANCIS PAUL PRUCHA, DOCUMENTS OF UNITED STATES INDIAN 

POLICY, 1 (2000).

14 Gregory Ablavsky, The Savage Constitution, 63 DUKE L.J. 999, 

1018 (2014).

15 See e.g. Edye v. Robertson, 112 U.S. 580, 598, 5 S. Ct. 247, 

254, 28 L. Ed. 798 (1884).(“A treaty is primarily a compact 

between independent nations. It depends for the enforcement of 

its provisions on the interest and the honor of the governments 

 
 

which are parties to it. If these fail, its infraction becomes the 

subject of international negotiations and reclamations, so far as 

the injured party chooses to seek redress, which may in the end 

be enforced by actual war.”)

16 U.S. CONST., ART. I, SEC. 8, CL. 3. 17 Chap. VII. 1 Stat. 49, A CENTURY OF LAWMAKING FOR A NEW NATION:

U. S. CONGRESSIONAL DOCUMENTS AND DEBATES, Law Library of 

Congress.

18 See e.g. NONINTERCOURSE ACT OF 1790; 25 U.S.C. §177. 19 See Joyce A. McCray Pearson, Red and Black - A Divided 

Seminole Nation: Davis v. U.S., KAN. J.L. & PUB. POL’Y 607, 615 

(2005).

20 Id.

21 See Paul W. Schreoder, Napoleon’s Foreign Policy: A Criminal 

Enterprise, 54 J. MIL. HIST. 147, 150 (1990). (A history of 

Napoleonic Wars “[b]eginning with Britain in 1803 and 

continuing through Austria and Russia in 1805, Prussia in 1806, 

Spain in 1808, Austria in 1809, and Russia in 1812.”)

22 21 U.S. 543, 5 L. Ed. 681 (1823)

23 See M’Intosh, at 681.(“[O]ur whole country [had] been granted 

by the crown [to either the colonies or individuals holding grants] 

while in the occupation of the Indians. These grants purport to 

convey the soil as well as the right of dominion to the 

grantees...[and] the king claimed and exercised the right of 

granting lands, and of dismembering the government at his will.”)

24 Cf. Joseph William Singer, Property As the Law of Democracy, 

63 DUKE L.J. 1287, 1327 (2014) (“Democracies believe in selfgovernment, and that means that the people, in some way, adopt 

our own laws, including rules governing the distribution and 

exercise of property rights.”)

25 M’Intosh, at 580.

26 M’Intosh, at 586.

27 See U.S. CONST. ART. I, SEC. 8, CL. 3. 28 M’Intosh, at 603.

29 Judith V. Royster, Control of the Reservation Environment: 

Tribal Primacy, Federal Delegation, and the Limits of State 

Intrusion, 64 WASH. L. REV. 581, 586 (1989).

30 Robertson, at 95.

31 Michelle Smith & Janet C. Neuman, Keeping Indian Claims 

Commission Decisions in Their Place: Assessing the Preclusive 
 

Effect of ICC Decisions in Litigation over Off-Reservation Treaty 

Fishing Rights, 31 U. HAW. L. REV. 475, 486-87 (2009).

32 JILL NORGREN, THE CHEROKEE CASES, 67 (1996).

33 See Jill Norgren, Protection of What Rights They Have: Original 

Principles of Federal Indian Law, 64 N.D. L. Rev. 73, 94 (1988).

34 See generally ROBERT REMINI, ANDREW JACKSON AND HIS INDIAN 

WARS (2001).

35 See Christopher A. Love, Andrew Jackson and His Indian 

Wars, 53 A.F. L. Rev. 221, 228 (2002), citing ANTHONY F. C.

WALLACE, THE LONG AND BITTER TRAIL: ANDREW JACKSON AND THE 

INDIANS 48 (1993)(“The government for decades had maintained 

a dual policy, on the one hand appropriating money for 

educational purposes and trying to improve living conditions on 

their present reserves, while at the same time urging them to 

sell their lands and move westward, out of the way of white 

settlements. Jackson and his cohorts were determined to shift 

federal policy toward final and irrevocable removal.”)

36 Id.

37 Ezra Rosser, The Nature of Representation: The Cherokee Right 

to A Congressional Delegate, 15 B.U. PUB. INT. L.J. 91, 93 (2005).

38 See generally TREATY OF NEW ECHOTA. 39 Robert Yazzie, The Cherokee Nation of Indians, et al., v. Georgia 

Appeal from the Supreme Court of the United States to the Supreme 

Court of the American Indian Nations, 8 WTR KAN. J.L. & PUB. POL’Y

159, 161 (1999).)

40 Robert S. Davis, State v. George Tassel: States’ Rights and the 

Cherokee Court Cases, 1827-1830, 12 J.S. LEGAL HIST. 41, 43-45 

(2004).

41 See Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, 11 

(1831). 42 Anthony Bothwell, We Live in Their Land: Implications of LongAgo Takings of Native American Indian Property, 6 ANN. SURV. INT’L 

& COMP. L. 175, 192 (2000).

43 See Id., at 20.

44 Cherokee, at 17.

45 See Worcester v. State of Ga., 31 U.S. 515 (1832)( “An act to 

prevent the exercise of assumed and arbitrary power, by all 

persons, under pretext of authority from the Cherokee Indians 

and their laws, and to prevent white persons from residing within 

that part of the chartered limits of Georgia, occupied by the 
 

Cherokee Indians, and to provide a guard for the protection of 

the gold mines, and to enforce the laws of the state within the 

aforesaid territory.”)

46 See Id. at 521.(“The defendant is a state, a member of the 

union, which has exercised the powers of government over a 

people who deny its jurisdiction, and are under the protection of 

the United States. The plaintiff is a citizen of the state of Vermont, 

condemned to hard labour for four years in the penitentiary of 

Georgia; under colour of an act which he alleges to be repugnant 

to the constitution, laws, and treaties of the United States.”)

47 27 U.S. 253 (1829),

48 See Robert N. Clinton, The Dormant Indian Commerce Clause, 

27 CONN. L. REV. 1055, 1171-72 (1995).

49 Worcester, at 560.

50 John Robert Renner, The Indian Child Welfare Act and Equal 

Protection Limitations on the Federal Power over Indian Affairs, 17

AM. INDIAN L. REV. 129, 133 (1992).

51 Matthew L. Sundquist, Worcester v. Georgia: A Breakdown in 

the Separation of Powers, 35 AM. INDIAN L. REV. 239, 243 (2011).

52 See Joseph D. Matal, A Revisionist History of Indian Country, 

14 ALASKA L. REV. 283, 293 (1997).

53 See In re Kansas Indians, 72 U.S. 737, 759 (1866). (“Did not 

the government accord to them the protection invoked, by 

executing the treaty? It surely did not need that the United States 

should say in words, we agree to protect you and vindicate your 

rights.”)

54 Guadalupe T. Luna, Chicana/Chicano Land Tenure in the 

Agrarian Domain: On the Edge of A “Naked Knife”, 4 MICH. J. RACE 

& L. 39, 74 (1998).

55 Laura E. Gomez, Off-White in an Age of White Supremacy: 

Mexican Elites and the Rights of Indians and Blacks in NineteenthCentury New Mexico, 25 CHICANO-LATINO L. REV. 9, 14 (2005).

56 Castillo at 36.

57 See ALAN AXELROD, CHRONICLE OF THE INDIAN WARS, 183-186.

(1993).

58 Id.

59 Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley, In 

Defense of Property, 118 YALE L.J. 1022, 1062-63 (2009).

60 See Matal, at 294-95.

61 Moppett, at 293.
 62 James Winston King, The Legend of Crow Dog: An Examination 

of Jurisdiction over Intra-Tribal Crimes Not Covered by the Major 

Crimes Act, 52 Vand. L. Rev. 1479, 1486 (1999).

63 See Megan H. Dearth, Defending the “Indefensible”: Replacing 

Ethnocentrism with A Native American Cultural Defense, 35 Am. 

Indian L. Rev. 621, 637 (2011).

64 See Ex parte Kan-gi-shun-ca [Crow Dog], 109 U.S. 556 (1883).

65 Id., at 567.

66 See Id., at 571.

67 Tom Tso, Moral Principles, Traditions, and Fairness in the 

Navajo, 76 JUDICATURE 15, 17 (1992).

68 Robert Yazzie, “Life Comes from It”: Navajo Justice Concepts, 24 

N.M. L. REV. 175 (1994).

69 Robert N. Clinton, Tribal Courts and the Federal Union, 26 

WILLAMETTE L. REV. 841, 847 (1990).

70 118 U.S. 375, 382, 6 S. Ct. 1109, 1113, 30 L. Ed. 228 (1886).

71 See Hagen v. Utah, 510 U.S. 399, 425 (1994)(Blackmun 

dissent, fn. 5).

72 See Lone Wolf v. Hitchcock 187 U.S. 553, 555 (1903).

73 Kagama, at 384-85.

74 Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 

82 N.D. L. REV. 627, 630-31 (2006).

75 Karim M. Tiro, Claims Arising: The Oneida Nation of Wisconsin

and the Indian Claims Commission, 1951-1982, 32 AM. INDIAN L.

REV. 509, 510 (2008).

76 Id.

77 Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152, 93 S. Ct. 

1267, 1272, 36 L. Ed. 2D 114 (1973).

78 See Kenneth H. Bobroff, Retelling Allotment: Indian Property 

Rights and the Myth of Common Ownership, 54 VAND. L. REV.

1559, 1561 (2001).)

79 S.Rep.No.1080, 73d Cong., 2d Sess., 1 (1934).

80 See Michael M. Pacheco, Toward A Truer Sense of Sovereignty: 

Fiduciary Duty in Indian Corporations, 39 S.D. L. REV. 49, 69 

(1994).

81 See Paul E. Frye, Lender Recourse in Indian Country: A Navajo 

Case Study, 21 N.M. L. REV. 275, at 285.

82 See Eric Lemont, Developing Effective Processes of American 

Indian Constitutional and Governmental Reform: Lessons from the 

Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation, 
 

and Northern Cheyenne Tribe, 26 AM. INDIAN L. REV. 147, 159 

(2002).

83 Bethany R. Berger, Williams v. Lee and the Debate over Indian 

Equality, 109 MICH. L. REV. 1463, 1494 (2011).

84 Tso, at 16.

85 See The American Presidency Project, Text of Special Message 

to the Congress on Indian Affairs, 

http://www.presidency.ucsb.edu/ws/?pid=2573 (last visited 

May 27, 2015).

86 Morton v. Mancari, 417 U.S. 535, 541-42, 94 S. Ct. 2474, 

2478, 41 L. Ed. 2D 290 (1974).

87 See e.g. United States v. Wheeler, 435 U.S. 313, 322-323 

(1978); see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 

191, 208 (1978); Kagama at 381-382; Wheeler at 313; Worcester

at 559; United States v. Mazurie, 419 U.S. 544, 557 (1975).; F. 

Cohen, HANDBOOK OF FEDERAL INDIAN LAW 122-123 (1945).)

88 Montana v. United States, 450 U.S. 544, 564, (1981); see also

Brendale v. Confederated Tribes & Bands of Yakima Indian 

Nation, 492 U.S. 408, 425 (1989); Roff v. Burney, 168 U.S. 218 

(1897). (membership); Meehan at 29 (inheritance rules); United 

States v. Quiver, 241 U.S. 602 (1916). (domestic relations); 

Williams v. Lee, 358 U.S. 217 (1959); Board of County Comm’rs v. 

Seber, 318 U.S. 705 (1943) (federally granted tax immunity); 

McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 

(1973)(same); Morton v. Ruiz, 415 U.S. 199 (1974). (federal 

welfare benefits for Indians ‘on or near’ reservations); United 

States v. Mitchell, 463 U.S. 206 (1983) quoting Seminole Nation v. 

United States, 316 U.S. 286, 296 (1942).)

89 See Joel H. Mack & Gwyn Goodson Timms, Cooperative 

Agreements: Government-to-Government Relations to Foster 

Reservation Business Development, 20 PEPP. L. REV. 1295, 1358 

(1993).

90 Peter W. Sly, EPA and Indian Reservations: Justice Stevens’

Factual Approach, 20 ENVTL. L. REP. 10429, 10430 (1990).

91 See e.g., NNC tit.1-24 (1995).

92 Robert Yazzie, “Hozho Nahasdlii”-We Are Now in Good 

Relations: Navajo Restorative Justice, 9 ST. THOMAS L. REV. 117, 

118 (1996).
 93 Sarah Krakoff, A Narrative of Sovereignty: Illuminating the 

Paradox of the Domestic Dependent Nation, 83 OR. L. REV. 1109, 

1115 (2004).

94 Todacheene v. Shirley, SC-CV-37-10, 2010 WL 3022690 (July 

9, 2010).

95 Samuel E. Ennis & Caroline P. Mayhew, Federal Indian Law 

and Tribal Criminal Justice in the Self-Determination Era, 38 Am. 

Indian L. Rev. 421, 421 (2014).
Indian Civil Rights Act 35

Chapter Two

The Indian Civil Rights Act

2.1 Purpose ................................................................ 35

2.2 Text of the Indian Civil Rights Act ....................... 36

2.2.1 Subsection (a)....................................................... 36

2.2.2 Sentencing Enhancements Under Subsection (b)... 42

2.2.3 Defendant’s Rights Under Subsection (c) .............. 43

2.2.4 Sentences Under Subsection (d)............................ 44

2.2.5 Definition of Offense Under Subsection (e)............ 45

2.2.6 Reservation of Rights Under Subsection (f) ........... 45

2.2.7 Relationship Between ICRA and VAWA ................. 45

2.3 Writ of Habeas Corpus .......................................... 48

2.1 Purpose

The purpose of the Indian Civil Rights Act (ICRA) is to prohibit 

Indian tribal governments from violating the civil rights of 

individual members of an Indian tribe.1 The Act also enhances 

civil liberties of individual Indians without unduly undermining 

Indian self-government and cultural autonomy.2

Few Indian tribes had European-style formal court systems, thus 

early treaties with Indian nations often included “bad men” 

provisions that would allow Indian tribes to punish their own 

members, require Indian tribes to deliver up non-Indians for 

punishment by the government, and require the government to 

return Indians to their tribe for punishment. Absent a treaty 

provision or Congressional statute (when treaties were no longer 

made with Indian tribes), Indian tribes were assumed not to have 

criminal jurisdiction over non-Indians.3

Likewise, Indian tribes enjoy immunity from suit in federal, state, 

or tribal courts unless the tribe gives consent or the immunity is 

abrogated by Congress.4 In Citizen Band of Potawatomi Indian 
36 Indian Civil Rights Act

Tribe v. Oklahoma Tax Com.,5 the Court found that Indian tribes 

have sovereign immunity from suits to which they do not 

consent, subject to the plenary control of Congress. The Supreme 

Court observed that “Indian tribes have long been recognized as 

possessing the common-law immunity from suit traditionally 

enjoyed by sovereign powers.”

The Court held specifically that ICRA did not abrogate tribal 

sovereign immunity. Therefore, suits brought in federal court 

against a tribe under ICRA are barred. Internal matters of tribal 

government are not within bounds of federal jurisdiction unless 

jurisdiction is expressly conferred by Congressional enactment.6

2.2 Text of the Indian Civil Rights Act

2.2.1 Subsection (a)

No Indian tribe in exercising powers of self-government shall1. make or enforce any law prohibiting the free exercise of religion 

or abridging the freedom of speech, or of the press, or the right of 

the people peaceably to assemble and to petition for a redress of 

grievances;

This ICRA provision concerning First Amendment-like 

protections has no provision comparable to the 

establishment clause of the First Amendment, which 

states: “Congress shall make no law respecting an 

establishment of religion...” This omission was in 

conscious recognition of the fact that in some tribes, 

especially the Pueblos, government, religion and all the rest 

of life are inextricably interwoven.

Thus, this provision of the ICRA does not require the 

separation of religion and the operations of the tribal 
Indian Civil Rights Act 37

government because separating religion from government 

would have changed tribes beyond recognition. Congress 

only wanted to ensure that tribal governments protected 

free exercise of religion.

2. violate the right of the people to be secure in their persons, 

houses, papers, and effects against unreasonable search and 

seizures, nor issue warrants but upon probable cause, supported 

by oath or affirmation, and particularly describing the place to be 

searched and the person or thing to be seized;

This language of the ICRA comes directly from the Fourth 

Amendment to the U.S. Constitution.

3. subject any person for the same offense to be twice put in 

jeopardy;

This language of the ICRA comes from the Fifth

Amendment of the U.S. Constitution. Under this section of 

ICRA, the tribal courts are prohibited from prosecuting a 

person twice for the same offense. If a tribe were to put a 

person twice in jeopardy for the same offense, it would be 

possible for that person to petition the federal court for a 

writ of habeas corpus.

Example: Amanda Deer is acquitted in the Fall River Tribal 

Court on a charge of simple assault arising out of an 

incident in which she was alleged to have threatened John 

Whitebear with a knife. Amanda is then brought to trial on 

a charge of aggravated assault arising out of the same 

incident. The second prosecution (aggravated assault) is 

barred by Section 1302(3) of ICRA since Amanda would be 

twice put in jeopardy for the same offense.

The double jeopardy clause of the Fifth Amendment is not 
38 Indian Civil Rights Act

infringed when an Indian is convicted in federal court after 

having been convicted of the same crime or a lesserincluded offense in tribal court, because the tribal court 

and the federal court are not arms of the same sovereign.7

4. compel any person in any criminal case to be a witness against 

himself;

5. take any private property for a public use without just 

compensation;

These two provisions mirror the provisions of the Fifth 

Amendment to the U.S. Constitution.

6. deny to any person in a criminal proceeding the right to speedy 

and public trial, to be informed of the nature and cause of the 

accusation, to be confronted with the witnesses against him, to 

have compulsory process for obtaining witnesses in his favor, and 

at his own expense to have the assistance of counsel for his 

defense; 

This section of ICRA is based on the Sixth Amendment of 

the U.S. Constitution, with an important difference as it 

relates to right to counsel: the right to counsel under ICRA

is at the defendant’s own expense. Under the Sixth 

Amendment of the federal Constitution, state and federal 

governments are required to provide counsel to indigent 

people at government expense when the prosecution may 

result in imprisonment.

In a tribal court proceeding, if a defendant is unable to 

afford counsel, the tribal court will order the defendant to 

stand trial regardless of whether he or she has an attorney. 

If a tribe adopts the Tribal Law and Order Act of 2010

(TLOA) or Violence Against Women Reauthorization Act of 
Indian Civil Rights Act 39

2013 (VAWA), tribes are required to provide counsel at the 

tribe’s expense.

7. (A) require excessive bail, impose excessive fines, or inflict cruel 

and unusual punishments;

(B) except as provided in subparagraph (C), impose for conviction 

of any 1 offense any penalty or punishment greater than 

imprisonment for a term of 1 year or a fine of $5,000, or both;

(C) subject to subsection (b), impose for conviction of any 1 offense 

any penalty or punishment greater than imprisonment for a term 

of 3 years or a fine of $15,000, or both; or

(D) impose on a person in a criminal proceeding a total penalty or 

punishment greater than imprisonment for a term of 9 years;

This section of ICRA is based on the Eighth Amendment of 

the U.S. Constitution, but it also imposes sentencing

limitations on tribal courts. From the passage of ICRA until 

the enactment of the TLOA, tribal courts could sentence a 

defendant to a maximum of “imprisonment for a term of one 

year and a fine of $5,000.00, or both.” This limitation on 

the penalties or punishments that tribal courts could 

impose effectively forced tribal courts and governments to

punish tribal criminal offenses, even serious violent 

crimes, as misdemeanors. Subsection (C) and (D) were 

added to ICRA after the TLOA, to allow tribal courts “felony” 

jurisdiction over some offenses committed in Indian 

Country. 

8. deny to any person within its jurisdiction the equal protection of 

its laws or deprive any person of liberty or property without due 

process of law;
40 Indian Civil Rights Act

By this section, ICRA combines both the “Due Process”

language from the Fifth and Fourteenth Amendments, and 

the “Equal Protection” language from the Fourteenth 

Amendment.

Tribes are required to ensure due process-fundamental 

fairness in all proceedings. Tribal governments must also 

ensure equal protection of the law. Tribes cannot treat 

people differently because of race, gender, or religion.

9. pass any bill of attainder or ex post facto law;

The language in this section of ICRA comes from U.S.

CONST, ART. I, SEC. 9, CL. 3, prohibiting Congress from 

passing either ex post facto laws or bills of attainder.

An ex post facto law is one that makes criminal an act that 

was not criminal at the time the act was done. 

Example: Stanley Yepa has a grazing permit from his tribe. 

Under the tribal grazing permit, Stanley can only graze a 

specific number of animals per acre so that the land is not 

overgrazed. He decides to add bison to his herd of cattle, 

careful to ensure that he does not exceed the maximum 

amount of animals under his permit. Neither his grazing 

permit nor the tribal ordinance on use of the range 

restricted grazing to any particular type of animal. Some of 

the other tribal members who have grazing permits for 

their cattle become upset when they learn that Stanley is 

grazing bison. They appeal to the Tribal Council, which 

promptly passes an ordinance making it a crime to graze 

bison on the reservation. Stanley cannot be charged, 

prosecuted, and convicted under the new tribal ordinance

for grazing before the law passed. If he continues to graze 

bison after the law is passed, however, he could be charged 
Indian Civil Rights Act 41

with a crime.

Bills of attainder are laws passed by a legislative body, 

which pronounce a person guilty of a crime and punish 

him without a trial.

Example: Esther Red Willow works as an aide for the 

President of her tribe. The President relies on Ms. Red 

Willow for advice on all matters affecting economic 

development. The President has a second aide whom he 

relies on for other specific issues. The President and the 

Tribal Council have been at odds on several matters 

concerning the types of economic development in which the 

tribe should engage. The Council attributes these 

disagreements to the advice Red Willow is giving to the 

President.

The Tribal Council passes the following ordinance: “It shall 

be a crime for any person, serving as an aide to the 

President of the Tribe, who is a member of the Moon Clan, 

to receive a full-time salary from the tribal government 

budget.” Ms. Red Willow, unlike the President’s other aide, 

is a member of the Moon Clan. Because the Tribal Council 

approved the budget, they know that the tribal budget has 

a line item for the President’s expenses, including salaries 

for two full-time aides. The effect of this statute is to find 

Esther Red Willow guilty of a crime without benefit of a 

trial, since she is the only person whose situation satisfies 

the elements of the crime. 

10. deny to any person accused of an offense punishable by 

imprisonment the right, upon request, to a trial by jury of not less 

than six persons.

Here ICRA requires a jury trial for any offense which could 
42 Indian Civil Rights Act

result in imprisonment. This provision places a heavier 

burden on tribal governments than the U.S. Constitution 

places on either the federal or state governments. Under 

federal courts’ interpretation of the right to trial by jury, a 

defendant may not be entitled to a jury trial for petty 

offenses–offenses that are punishable by less than six 

months in jail.

However, tribal courts are required to provide a jury trial 

for any offense, even those that are punishable by less than 

six months in jail. The defendant must request a jury trial. 

In tribal courts, only a six-person jury is required for a 

criminal trial as opposed to twelve in a federal trial. Neither 

a criminal prosecution by grand jury indictment or the 

right to trial by jury in civil cases are required under ICRA.

2.2.2 Sentencing Enhancements Under Subsection (b)

A tribal court may subject a defendant to a term of imprisonment 

greater than 1 year but not to exceed 3 years for any 1 offense, or 

a fine greater than $5,000 but not to exceed $15,000, or both, if 

the defendant is a person accused of a criminal offense who—

1. Has been previously convicted of the same or a comparable 

offense by any jurisdiction in the United States; or

2. Is being prosecuted for any offense comparable to an offense 

that would be punishable by more than 1 year of 

imprisonment if prosecuted by the United States or any of 

the States.

The Tribal Law and Order of Act of 2010 (TLOA) expanded 

the punitive capabilities of tribal courts by increasing the 

punishment that an offender could receive in Tribal courts 

from 1 year and a five thousand dollar fine to three years 
Indian Civil Rights Act 43

and fifteen thousand dollars fines for offenses that warrant 

enhancement or for offenses that are like felonies in other 

jurisdictions. According to subsection (a) paragraph 7 of 

the Indian Civil Rights Act, tribal courts are also allowed to 

stack felony charges. Therefore, the maximum punishment 

a defendant can receive in tribal court is nine years and a 

$15,000 fine. However, the maximum punishment for one 

offense is three years and a $15,000 fine. 

2.2.3 Defendant’s Rights Under Subsection (c)

In a proceeding where the Court has adopted TLOA or is 

prosecuting under VAWA, the following additional rights apply to 

a criminal defendant:

In a criminal proceeding in which an Indian tribe, in exercising 

powers of self-government, imposes a total term of imprisonment 

of more than 1 year on a defendant, the Indian tribe shall—

1. provide to the defendant the right to effective assistance of 

counsel at least equal to that guaranteed by the United 

States Constitution; and

2. at the expense of the tribal government, provide an indigent 

defendant the assistance of a defense attorney licensed to 

practice law by any jurisdiction in the United States that 

applies appropriate professional licensing standards and 

effectively ensures the competence and professional 

responsibility of its licensed attorneys;

3. require that the judge presiding over the criminal 

proceeding—

(A) has sufficient legal training to preside over criminal 

proceedings; and
44 Indian Civil Rights Act

(B) is licensed to practice law by any jurisdiction in the United 

States;

4. prior to charging the defendant, make publicly available the 

criminal laws (including regulations and interpretative 

documents), rules of evidence, and rules of criminal 

procedure (including rules governing the recusal of judges in 

appropriate circumstances) of the tribal government; and

5. maintain a record of the criminal proceeding, including an 

audio or other recording of the trial proceeding.

2.2.4 Sentences Under Subsection (d)

In the case of a defendant sentenced in accordance with 

subsections (b) and (c), a tribal court may require the defendant—

to serve the sentence—

in a tribal correctional center that has been approved by the 

Bureau of Indian Affairs for long-term incarceration, in accordance 

with guidelines to be developed by the Bureau of Indian Affairs (in 

consultation with Indian tribes) not later than 180 days after July 

29, 2010;

in the nearest appropriate Federal facility, at the expense of the 

United States pursuant to the Bureau of Prisons tribal prisoner 

pilot program described in section 304(c)[1] of the Tribal Law and 

Order Act of 2010;

in a State or local government-approved detention or correctional 

center pursuant to an agreement between the Indian tribe and the 

State or local government; or

in an alternative rehabilitation center of an Indian tribe; or to serve 
Indian Civil Rights Act 45

another alternative form of punishment, as determined by the 

tribal court judge pursuant to tribal law.

2.2.5 Definition of Offense Under Subsection (e)

In this section, the term "offense" means a violation of a criminal 

law.

2.2.6 Reservation of Rights Under Subsection (f)

Nothing in this section affects the obligation of the United States, 

or any State government that has been delegated authority by the 

United States, to investigate and prosecute any criminal violation 

in Indian country.

2.2.7 Relationship Between ICRA and VAWA

With the passage of the Violence Against Women Reauthorization 

Act of 2013, Congress authorized Indian tribes to assert criminal 

jurisdiction over non-Indian offenders by amending the language 

of the Indian Civil Rights Act at 25 U.S.C. §1301 et. seq. Today, 

Indian tribes who adopt the provisions of VAWA can assert 

jurisdiction over certain crime: dating violence, domestic violence 

and violations of protection orders.

The term “dating violence” means violence committed by a person 

who is or has been in a social relationship of a romantic or 

intimate nature with the victim, as determined by the length of 

the relationship, the type of relationship, and the frequency of 

interaction between the persons involved in the relationship.

The term “domestic violence” means violence committed by a 

current or former spouse or intimate partner of the victim, by a 

person with whom the victim shares a child in common, by a 

person who is cohabitating with or has cohabitated with the 
46 Indian Civil Rights Act

victim as a spouse or intimate partner, or by a person similarly

situated to a spouse of the victim under the domestic- or familyviolence laws of an Indian tribe that has jurisdiction over the area 

of Indian Country where the violence occurs.

The term “protection order” means any injunction, restraining 

order, or other order issued by a civil or criminal court for the 

purpose of preventing violent or threatening acts or harassment 

against, sexual violence against, contact or communication with, 

or physical proximity to, another person; and any temporary or 

final order issued by a civil or criminal court, whether obtained 

by filing an independent action or as a Pendente lite order in 

another proceeding, if the civil or criminal order was issued in 

response to a complaint, petition, or motion filed by or on behalf 

of the person seeking protection.8

Congress recognized in VAWA, at 25 U.S.C. §1304(b), that powers 

of self-governance include the inherent power to prosecute all 

persons for the crime of domestic violence occurring on tribal 

land. This jurisdiction is concurrent with the jurisdiction of the 

United States, individual states, or both, to exercise jurisdiction 

over the same conduct. 

A participating tribe may exercise special domestic violence 

criminal jurisdiction over a defendant for criminal conduct that 

falls into one of two categories. The first category is domestic 

violence and dating violence. The second category is violations of 

protection orders. To qualify, the violation of the protection order 

must occur in Indian Country and in the jurisdiction of the 

participating tribe. Further, the violation must be of an order 

that prohibits violence, threatening acts, harassment, sexual 

violence, contact, or communication with another person. Prior 

to the enforcement of the order, the tribe must show the 

respondent had notice of the protective order and an opportunity 

to be heard as required by 18 U.S.C. §2265(b).
Indian Civil Rights Act 47

If the victim and perpetrator are non-Indian, however, the tribe 

lacks jurisdiction over the offense under VAWA. The tribe is also 

excluded from exercising jurisdiction unless it can show the 

person has a significant relationship with the tribe. “Significant 

relationship” includes defendants: (i) residing in the jurisdiction

of the participating tribe; (ii) being employed in the jurisdiction of

the participating tribe; or (iii) is a spouse, intimate partner, or 

dating partner of (I) a member of the participating tribe; or (II) an 

Indian who resides in the jurisdiction of the participating tribe. 

Crimes of sexual violence are precluded from the enforcement 

unless the tribe can establish a domestic or dating relationship.

In a criminal proceeding in which a participating tribe exercises 

special domestic violence criminal jurisdiction and a defendant 

may face any term of imprisonment, the tribe must ensure that 

the defendant may exercise the rights described in 25 U.S.C. 

§1302(c). These rights include the right to a court-appointed 

licensed attorney, a judge that is qualified to hear criminal 

proceedings and is a licensed attorney, notice of tribal law and 

rules of evidence, and a record of the proceedings. An audio 

recording is sufficient to meet the record requirement.

Further, the defendant has a right to a trial by an impartial jury 

drawn from sources that reflect a fair cross-section of the 

community; the selection of jurors must not systematically 

exclude any distinctive group in the community, including nonIndians. 

VAWA also modified 18 USC §2265 to ensure that a court of an 

Indian tribe shall have full civil jurisdiction to issue and enforce 

protection orders involving any person, which includes the 

authority to enforce any orders through civil contempt 

proceedings, to exclude violators from Indian land, and to use 

other appropriate mechanisms in matters arising anywhere in 
48 Indian Civil Rights Act

the jurisdiction of the Indian tribe or otherwise within the 

authority of the Indian tribe.9

2.3 Writ of Habeas Corpus

A writ of habeas corpus is a judicial mandate to a prison official 

ordering that an inmate be brought to the court so it can be 

determined whether or not that person is imprisoned lawfully 

and whether or not he should be released from custody. Under 

25 U.S.C. §1303, “the privilege of the writ of habeas corpus shall 

be available to any person, in a court of the United States, to test 

the legality of his detention by order of an Indian tribe.”

Because the Indian Civil Rights Act is a federal statute, one would 

think that it could be enforced in the federal courts. However, in 

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the Supreme 

Court held that ICRA is primarily enforceable in tribal courts. 

This case involved a rule of the Santa Clara Pueblo concerning 

how the Pueblo determined membership in that tribe. The rule 

made children born of female members married to a person 

outside the tribe ineligible for membership in the tribe. However, 

children born of marriages between male Santa Clara Pueblo 

members to spouses outside the tribe were eligible for 

membership in the tribe. Santa Clara Pueblo justified its 1939 

ordinance on the basis of patriarchal traditions, as well as the 

economic need to restrict the tribal rolls.

Julia Martinez, a female member of the Pueblo, had married a 

Navajo. Their children were raised in the Pueblo, spoke Tewa (the 

traditional language of that Pueblo), and continued to live there. 

Nonetheless, Ms. Martinez’s children were excluded from 

membership in the tribe by the ordinance. Because her children 

were not regarded as members of the tribe, they did not have the 

benefits of Santa Clara membership, such as voting in tribal 
Indian Civil Rights Act 49

elections, and retaining land use rights. Julia Martinez filed a 

lawsuit against the tribe and its governor, alleging a violation of 

the equal protection clause of the Indian Civil Rights Act, saying 

that the ordinance denied her and her children equal protection 

of the laws as guaranteed under ICRA. The issue presented to the 

United States Supreme Court was whether an Indian tribe could 

create membership criteria which discriminated against women. 

The Supreme Court did not address this issue, but instead 

dismissed the lawsuit on the basis of some important 

jurisdictional grounds.

As a result of the Santa Clara decision, federal court enforcement 

of the Indian Civil Rights Act is limited almost exclusively to 

review of criminal matters. The decision has been highly 

controversial, because it simultaneously reduces the degree of 

federal interference in tribal self-government while raising the 

potential for violations of federal law without a federal remedy. 

Enforcement of much of ICRA is left to the tribal courts, primarily 

the non-criminal portions of the Act. In United States v. 

Washington,10 the court found that finding that like states, 

Indian tribes are sovereign entities, albeit, “domestic dependent”

sovereign. According to the court, “[t]he same considerations of 

federal non-interference in the affairs of other sovereigns” that 

influenced the court in Edmunds v. Won Bay Chang, 509 F.2d 39 

(9th Cir. 1975) to limit habeas review of state convictions applied 

to review of the actions of Indian tribes.

In Poodry v. Tonawanda Band of Seneca Indians,11 tribal officials 

informed select tribal members that they were guilty of treason 

by attempting to overthrow the tribal government. As a result, 

they were forever banished from the reservation and stripped of 

all rights of membership. The Circuit Court held that banishment 

was a severe punishment, involving a sufficient restraint on 
50 Indian Civil Rights Act

liberty to qualify as a “detention” and permitted federal review by 

habeas corpus under §1303 of ICRA.

In Jeffredo v. Macarro,12 the court held that disenrollment does 

require the same review as banishment. In Jeffredo, tribal 

members were disenrolled but not banished from the reservation. 

Even if they had been, the tribe had a uniform process for 

excluding both members and nonmembers of the tribe from the 

Reservation that included procedures for appealing one’s 

exclusion or eviction. The court found that federal review was not 

warranted when the former members had not actually been 

banished, and when there was an internal mechanism for appeal.

Recall that in Oliphant v. Suquamish Indian Tribe, the United 

States Supreme Court held that Indian tribes do not have 

criminal jurisdiction over non-Indian offenders, absent 

congressional authorization. Specifically, the Court found that an 

early version of the Indian Civil Rights Act extended its guarantees 

only to “American Indians,” rather than to “any person.”

Although ICRA provides protection to any person, the Court 

found the purpose of that language was to extend guarantees to 

“all persons who may be subject to the jurisdiction of tribal 

governments, whether Indians or non-Indians.”13

However, the Court noted that the wording was not intended to 

give Indian tribes criminal jurisdiction over non-Indians. Instead, 

the wording merely demonstrated Congress’ desire to extend 

guarantees under ICRA to non-Indians if and where they come 

under a tribe’s criminal or civil jurisdiction by either treaty 

provision or Act of Congress.14

Thus, the application for writ of habeas corpus is also made 

applicable to non-Indians charged in tribal court. A person who 

has filed a petition for a writ of habeas corpus in a court of the 

United States under 25 U.S.C. § 1303 may petition that court to 
Indian Civil Rights Act 51

stay further detention of that person by the participating tribe. A 

court shall grant a stay if the court finds a substantial likelihood 

that the habeas corpus petition will be granted and, after giving 

each alleged victim in the matter an opportunity to be heard, 

finds by clear and convincing evidence that under conditions 

imposed by the court, the petitioner is not likely to flee or pose a 

danger to any person or the community if released. An Indian 

tribe that has ordered the detention of any person has a duty to 

timely notify such person of his rights and privileges.
1 See Thompson v. New York, 487 F. Supp. 212 (N.D.N.Y. 1979).

2 See Means v.Wilson, 383 F. Supp. 378, 383 (D.S.D. 1974).

3 See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. 

Ct. 1011, 55 L. Ed. 2d. 209 (1978).

4 See Confederated Tribes of Colville Indian Reservation v. 

Washington, 446 F. Supp. 1339 (E.D.Wash.1978).

5 888 F.2d 1303 (10th Cir. 1989).

6 See Pinnow v. Shoshone Tribal Council, 314 F. Supp. 1157 

(D.C. Wyo.1970).

7 See United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 

L. Ed. 2d 303 (1978).

8 See 25 U.S.C. 1304(a).

9 18 USC §2265(e).

10 573 F.3d 701 (9th Cir.2009).

11 85 F.3d 874 (2nd Cir. 1996).

12 599 F. 3d 913 (9th Cir. 2010).

13 See Summary Report on the Constitutional Rights of 

American Indians, Subcommittee on Constitutional Rights of 

the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 

10 (1966).

14 See Oliphant at 196.

 
52 Indian Country Criminal Jurisdiction

Chapter Three

Indian Country Criminal Jurisdiction

3.1 Introduction......................................................... 52

3.1.1 Trust Relationship and Tribal Sovereignty............ 53

3.1.2 Plenary Power of Congress.................................... 55

3.1.3 Supreme Court Decisions ..................................... 56

3.2 Criminal Jurisdiction in Indian Country............... 58

3.2.1 Statutory Definition of “Indian” ........................... 59

3.2.2 Statutory Definition of “Indian Country”.............. 60

3.2.3 Reservation Land ................................................. 61

3.2.4 Dependent Indian Communities ........................... 63

3.2.5 Indian Allotments................................................. 64

3.3 Nature of Crime and Applicable Statutes .............. 66

3.3.1 Indian Country Crimes Act ................................... 67

3.3.2 Major Crimes Act.................................................. 69

3.3.3 Assimilative Crimes Act ....................................... 81

3.4 Public Law 280 ..................................................... 84

3.5 Concurrent Jurisdiction, Double Jeopardy............ 90

3.6 Limits on State Jurisdiction................................. 91

3.7 Limits on Tribal Jurisdiction................................ 93

3.7.1 Optional Jurisdiction under VAWA ....................... 95

3.8 Limits on Law Enforcement Officer Authority....... 97

3.9 Tribal Police Officer Authority/Limits .................. 98

3.10 BIA Officer Authority/Limits ...............................100

3.11 State, County, Local Officer Authority/Limits .....101

3.12 Limits on Fresh Pursuit into Indian Country .......102

3.13 Limits on Extradition from Indian Country..........106

3.14 Step-by-Step Jurisdictional Analysis....................109

3.15 Need for Cross-Deputization ................................114

3.16 Courts of Indian Offenses (C.F.R. Courts).............115

3.1 Introduction

When Europeans first arrived on the continent that is now North 

America, over five hundred Indian nations prospered in what is 

now the United States.1 Each nation possessed its own 

government, culture and language.2 Today, there are more than 
Indian Country Criminal Jurisdiction 53

560 federally recognized Indian Tribes in the United States. 

Alaska is home to 226 tribes, with other tribes scattered through

thirty-four of the continental United States. Each tribe is a 

unique entity, distinct from each other in many ways—including 

the exercise of criminal jurisdiction. The Supreme Court has 

noted that criminal jurisdiction in Indian Country is “a complex 

patchwork of federal, state and tribal law,”3 that has been largely 

defined by three factors. 

3.1.1 Trust Relationship and Tribal Sovereignty 

Prior to the arrival of Europeans on the North American 

continent, tribes had political, cultural, and social autonomy. As 

sovereigns, tribes governed territory through enforcement of 

social norms (as European nations did with civil and criminal 

laws), and excluded outsiders from tribal territories. They made 

war and peace, provided for their people, and lived according to 

their cultural and religious worldviews, without approval or 

disapproval of any outside entity. 

When European nations first encountered Indian tribes, they 

respected this sovereignty and entered into treaties largely 

centered on trade and commerce. Following the Revolutionary 

War, the United States took steps to ensure that other European 

nations did not enter into treaties with Indian tribes.

When the United States made treaties, however, the goal was the 

acquisition of land rather than trade and commerce. Indian tribes 

ceded vast areas of traditional land holdings in exchange for the 

United States’ promise to protect them and provide for their 

welfare, which in turn reduced the tribes’ exercise of sovereignty. 

In many of these treaties, Indian nations reserved for themselves 

land bases, hunting and fishing rights, water rights, and all 

attributes of sovereignty not expressly relinquished through 
54 Indian Country Criminal Jurisdiction

treaty. Among their most significant losses of sovereign power, 

however, was criminal jurisdiction.

As discussed in Chapter One, the Supreme Court eventually held 

Indian tribes were “domestic dependent nations” and thus were 

dependent on the federal government for protection. As such, 

Indian tribes’ authority to enforce criminal laws against nonIndians was reduced, and it was assumed the federal government 

would punish non-Indians for criminal conduct. 

The relationship between tribes and the federal government has 

since been characterized as a “trust relationship” by the Supreme 

Court. This trust relationship means the federal government 

holds legal title to tribal property and has a legal duty to manage 

and protect the property for the beneficial use of tribal nations. 

The federal government must act in the best interests of the 

Indian nations, protect tribal governments from incursions by the 

states, safeguard the natural resources and land bases of tribes, 

and provide health care, education, and public safety for these 

domestic dependent nations. In the history of the United States 

and its treatment of Indian nations, federal policies for dealing 

with Indian nations have not always been faithful to this trust 

responsibility. Federal policy has varied radically from a policy of 

annihilation, to assimilation, to termination, and then to selfdetermination.

Each change in policy has been influenced by the political and 

social climate of the era. Westward expansion and gold fever 

influenced removal of tribes from the eastern seaboard to the 

west. Federal legislation caused the removal of tribal homelands 

from Indian Country, and treaty promises were broken. Still 

today, the trust relationship and federal superintendence over 

Indian nations rests upon Congress’ plenary power over Indian 

affairs, and federal criminal jurisidiction in Indian Country also 

flows from Congress’ plenary power.
Indian Country Criminal Jurisdiction 55

3.1.2 Plenary Power of Congress

Congress’ plenary power over Indian affairs is the second factor 

contributing to the tangled pattern of criminal jurisdiction in 

Indian Country. The Supreme Court has consistently held the 

source of Congress’ extensive power over Indian nations derives 

from several Constitutional powers: war powers; treaty powers; 

U.S. Const. ART. II, SEC. 2 CL. 2; the treaty clause, which gives the 

President and Congress the power to make treaties with Indian 

tribes; and the Interstate Commerce Clause, which has been 

relied on as the principal source of Congress’ plenary power over 

Indian nations.

Found at U.S. CONST., ART. 1, SEC. 8 CL. 3 of the United States 

Constitution, the Interstate Commerce Clause states that:

“The Congress shall have power...to regulate Commerce 

with foreign Nations, and among the several States, and 

with the Indian Tribes...”

The Supreme Court held in 1832 that the treaty clause and the 

Interstate Commerce Clause provides Congress with “all that is 

required” for plenary power over Indians and tribes.4 

Historically, the Supreme Court has also cited the law of 

discovery and conquest as a basis for such plenary power.5 

Congress abolished treaty-making with tribes in 1871; therefore, 

the Treaty Clause is no longer cited in modern Indian law as a 

source of federal control over Indians. As the law of discovery and 

conquest are no longer cited, the Supreme Court relies solely on 

the Commerce Clause in its modern jurisprudence.6

The Interstate Commerce Clause, which regulates commerce 

with Indian tribes, is Congress’ only express authority to deal 

with the tribes. Despite what appears to be a limited power to 
56 Indian Country Criminal Jurisdiction

regulate commerce, successful arguments by the government 

before the Supreme Court have created limitless plenary power 

over Indian affairs. This power has been used both as a shield for

tribes and their sovereignty against the states, and as a sword 

against tribes and their sovereignty against federal control.

The federal government has a trust responsibility to protect 

tribes, yet Congress’ power has been interpreted to be great 

enough to unilaterally abolish treaties or certain treaty rights, or 

even to end the government-to-government relationship with any 

particular tribe. At its most extreme limits, Congress can legislate 

who is and is not an Indian tribe and may increase, decrease, or 

remove entirely from tribal governments their criminal and civil 

jurisdiction. “Congress possesses plenary power over Indian 

affairs, including the power to modify or eliminate tribal rights,” 

and Congress can assist or destroy an Indian tribe as it sees fit.7

Through its plenary power, Congress also has the authority to 

export federal criminal laws into Indian Country.

3.1.3 Supreme Court Decisions

Although Congress has plenary power, it is not absolute. The two 

most important constitutional limitations on congressional 

power are the Due Process Clause and the Just Compensation 

clause of the Fifth Amendment.8 The interpretation of whether 

certain actions taken under plenary power and the effect on 

Indian nations is complex, and often rises to a high level of 

conflict between the federal government’s trust responsibility and 

the extent and meaning of tribal sovereignty. The judicial branch, 

specifically the United States Supreme Court, is called upon to 

resolve such issues. The involvement of the judicial branch has 

contributed immensely to the complexity of criminal jurisdiction 

in Indian Country.
Indian Country Criminal Jurisdiction 57

Through its decisions, the United States Supreme Court has 

interpreted numerous sources—treaties, federal statutes, 

executive (Presidential) orders, and the United States 

Constitution—and defined the outer contours of tribal 

sovereignty and jurisdiction. The Supreme Court’s role in Indian 

law is limited to determining constitutionality of congressional 

legislation and executive enforcement of laws affecting Indian 

tribes; the Supreme Court does not act to protect tribal autonomy 

against congressional action. 

As a result, the Court can only determine if laws passed by 

Congress are constitutional, even if they severely undermine the 

sovereignty of tribal nations and the jurisdiction of tribal courts. 

The Supreme Court has upheld congressional actions stripping 

tribes of:

• jurisdiction over crimes committed by non-Indians 

against non-Indians within the reservation boundaries 

[United States v. McBratney (1881), Draper v. United States

(1896)]; and

• jurisdiction over non-Indian offenders who commit 

crimes against Indians within the reservation boundaries 

[Oliphant v. Suquamish Indian Tribe (1978)].

It is important to note that Indian Country criminal jurisdiction 

is not based on race—“Indian” and “non-Indian” are political

classifications, not racial ones. An “Indian” is a person recognized 

to have certain political or treaty rights. It is possible to be racially 

Indian and yet not be a member of a federally-recognized tribe, 

and thus not “Indian” in terms of federal law. 

For example, the Upper Mattaponi tribe is one of only two staterecognized tribes in Virginia that own reservation land outright.

The Upper Mattponi has been, and still is, recognized by both the 
58 Indian Country Criminal Jurisdiction

State of Virginia and the United Kingdom as an Indian tribe in 

the TREATY BETWEEN VIRGINIA AND THE INDIANS OF 1677. The tribe 

is not federally-recognized as of 2015, therefore its members are 

not “Indians” under federal law despite recognition by Virginia 

and the United Kingdom. Only if the Upper Mattaponi are 

recognized by the federal government as a “tribe” will its members 

be “Indians” under federal law.

3.2 Criminal Jurisdiction in Indian Country

“Jurisdiction” means an exercise of authority in all judicial 

matters. Criminal defendants can only be prosecuted in a court 

with jurisdiction over both the crime and the criminal. Further, 

jurisdiction can be exercised exclusively or concurrently by 

different sovereigns – federal, state, or tribal. “Exclusive 

jurisdiction” means only one sovereign can exercise authority 

over particular judicial matters, and “concurrent jurisdiction” 

means more than one sovereign has such authority.

Three separate sovereigns potentially could exercise criminal 

jurisdiction, exclusively or concurrently, in Indian Country. 

These three sovereigns have a number of different relationships 

which prevent them from fully and independently exercising 

jurisdiction in Indian Country. The federal government and the 

states have a Constitutional relationship, and the federal 

government and tribes have a treaty relationship. The 

Constitution grants plenary power over Indian affairs to the 

federal government and thus restrains the states. Treaties 

require the United States to protect Indians from non-Indian 

offenders, and allow tribes to punish tribal members for criminal 

conduct.

With this background in mind, it is apparent that criminal 

jurisdiction in Indian Country presents both an intellectual and 

logistical challenge to law enforcement. It requires an 
Indian Country Criminal Jurisdiction 59

understanding of key concepts, including:

• Who is an Indian?

• What is Indian Country?

• What are the limits on federal, tribal, and criminal jurisdiction?

• What are the primary federal criminal statutes applicable in 

Indian Country?

3.2.1 Statutory Definition of “Indian”

As discussed previously, the federal criminal jurisdiction statutes 

do not define the term “Indian.” For purposes of both federal and 

tribal criminal jurisdiction, an individual Indian must be 

considered a member of a federally recognized tribe.9 Therefore, 

the Supreme Court has articulated a test to determine whether 

an person is an Indian:

1) Whether there is some degree of Indian blood (a slight 

degree is sufficient), and;

2) Whether the person is recognized as “Indian” by either a 

federally-recognized tribe or the federal government.10

Enrollment in a federally recognized tribe indicates a person’s 

status as an “Indian” for purposes of federal criminal (and tribal) 

jurisdiction. Formal enrollment in a recognized tribe is not always 

necessary for an individual to be regarded as an Indian for federal 

criminal jurisdictional purposes.11

Congressional acts that govern the status of individual tribes12

may also define the status of Indians, as may informal 

government recognition through receipt of assistance provided 

only to Indians, the enjoyment of the benefits of tribal affiliation, 

social recognition as an Indian through residence on the 

reservation, and participation in Indian culture or social life.13
60 Indian Country Criminal Jurisdiction

Tribal membership can be established through Bureau of Indian 

Affairs or tribal census records. A person eligible for enrollment, 

but not yet enrolled, is also considered an Indian for purposes of 

federal criminal jurisdiction.14

Individual status follows tribal status, however, so there can be 

no Indian without a tribe. A member of a non-federally recognized 

tribe is not an Indian for purposes of federal criminal jurisdiction 

or tribal jurisdiction15 even if that tribe is recognized by other 

countries or other states. Likewise, if a tribe was federallyrecognized and Congress subsequently terminates its trust 

relationship with a tribe (as was the case with the Menominee in 

the 1950s), the individual members are not considered Indians 

for purposes of federal criminal jurisdiction unless the trust 

relationship is re-established (as was the case with the 

Menominee in 1973). Canadian tribes (First Nations people) are 

not federally recognized for purposes of treating their tribal 

members as Indian offenders or victims in the United States. 

3.2.2 Statutory Definition of “Indian Country”

Special federal criminal jurisdiction exists in “Indian Country,” 

as defined by 18 U.S.C. §1151:

(a) all land within the limits of any Indian reservation 

under the jurisdiction of the United States Government, 

including patented lands and rights-of-way running 

through the reservation, 

(b) all dependent Indian communities, 

(c) all Indian allotments to which Indian title has not been 

extinguished, including rights-of-way running through 

the allotments. 
Indian Country Criminal Jurisdiction 61

As an element of a charged criminal offense, the government 

must prove that the crime took place on a reservation or in Indian 

Country.16

3.2.3 Reservation Land

The first category of Indian Country includes all lands within an 

Indian reservation under federal jurisdiction, including patented 

lands within the reservation and rights-of-way running through 

the reservation.17 Patented lands are those lands located within 

the exterior (outer) boundaries of the reservation that have been 

sold by the United States to individual non-Indians and owned 

in fee simple. 

Today, we think of patents in terms of inventions – a grant of 

exclusive use or right. Similarly, land patents are grants of land 

for exclusive use or right, like a deed. Patents are granted directly 

from the United States government. In the 1800s, patents were 

often granted to religious groups for lands within reservations, 

for the purpose of establishing missions or schools. In addition, 

some reservations were extended or established where patents 

already existed, and were thus included within the new 

boundaries of the reservation. 

For example, the Muscogee (Creek) Nation requested a land 

patent for the American Baptist Home Mission Society to 

establish Indian University (now Bacone College). The land 

patent was issued by the United States, not by the Muscogee 

(Creek) Nation, and the college was in Indian Country (even 

though the land was owned in fee simple by a non-Indian 

corporation.) After 1887, when the Muscogee (Creek) Nation 

reservation was disestablished, the land owned by Indian 

University was no longer in Indian Country because there was no 

longer an exterior boundary of a reservation as described under 

§1151(a). Disestablishment of a reservation does not invalidate a 
62 Indian Country Criminal Jurisdiction

land patent, however. As the University had a land patent issued 

by the United States, it owned the land in fee simple and the land 

became subject to the jurisdiction of Indian Territory; it could not 

be allotted when the Muscogee (Creek) Nation reservation was 

broken up into individual allotments.

Non-Indian ownership within reservations occurred in other 

ways as well. Primarily, individual allotees alienated land (sold 

and extinguished Indian title so the land can be held in fee simple 

absolute), “surplus” land was sold during allotment,18 or 

reservations were opened to settlement by non-Indians.

During allotment, tribal lands were divided up among individual

members. Some of those allotments to Indians were made 

alienable, or eligible for sale to non-Indians, and subject to state 

taxation after a certain number of years. After the period of 

restriction, Indian owners could remove the trust restrictions, 

retain ownership of the lands in fee simple, then sell the land. In 

practice, many Indian owners lost the land due to nonpayment 

of taxes or fraud.

Other allotment schemes opened up “surplus” lands to nonIndian purchasers or homesteaders, after each Indian family 

received an allotment. As a result, there are large tracts of land 

settled by non-Indians, and sometimes entire towns were 

incorporated under state law by non-Indians within many 

reservations. Even though they were incorporated under state 

law, those tracts and towns are still within Indian Country for 

jurisdictional purposes.19 For example, the city of Mission, South 

Dakota, lies within the boundaries of the Rosebud Sioux 

Reservation, and is considered Indian County for purposes of 

federal criminal jurisdiction.

Other reservations were “disestablished,” meaning Indian tribes 

ceded land or the land was alienated through allotment. This 
Indian Country Criminal Jurisdiction 63

former Indian land, which was usually opened for settlement by 

non-Indians, is no longer part of the reservation, and therefore 

not Indian Country. Almost all of Oklahoma was former 

reservation land, but the reservations were disestablished, so 

large areas of cities like Tulsa are not in Indian Country.20

3.2.4 Dependent Indian Communities

The second category of “Indian Country” includes dependent 

Indian communities which are not reservations per se, but are 

still recognized by the federal government and dependent upon 

the federal government for protection. The term “dependent 

Indian community” is a term of art which developed from United 

States v. Sandoval.21 

In Sandoval, the Supreme Court decided New Mexico Pueblo 

communal lands held by the Pueblos in fee simple, under 

conveyances from the Spanish government as land grants and 

recognized under Mexican law until the Treaty of Guadalupe 

Hidalgo ceded jurisdiction to those lands to the United States, 

were in “Indian Country” even though they were not formally 

designated as federal reservations.22 The Court reasoned that 

since the Pueblos were distinctly Indian communities, recognized 

by the federal government and dependent upon the federal 

government for protection, their land grants were Indian 

Country. Thus, ownership of lands by a federally recognized, 

dependent Indian tribe is sufficient to bring those lands within 

the definition of Indian Country. The Sandoval holding was later 

incorporated into the definition of “Indian Country” in 18 U.S.C. 

§1151(b), which included dependent Indian communities as 

Indian Country for purposes of federal criminal jurisdiction. 

In Alaska v. Native Village of Venetie,23 the Supreme Court 

further explained that the term “dependent Indian community,” 

as used in 18 U.S.C. §1151(b), refers to a limited category of 
64 Indian Country Criminal Jurisdiction

Indian lands that are neither reservation nor allotments (such as 

Pueblos or Alaskan Native villages). The two essential 

characteristics of a “dependent Indian community” are: first, the 

land must have been set aside by the federal government 

specifically for use by Indians, and; second, the land must be 

under federal superintendence (supervision). “Superintendence” 

means the community must be “sufficiently ‘dependent’ upon the 

Federal Government so that the Federal Government and the 

Indians involved, rather than the States, are to exercise primary 

jurisdiction over the land in question.” 

Federal superintendence is not evidenced merely by federal 

provision of health, social welfare, and economic programs; the 

federal government must actively control the land and effectively 

act as a guardian for the Indians.

3.2.5 Indian Allotments

As described in Chapter One, years of allotments and patents 

resulted in the designation of some portions of Indian Country as 

“checkerboard” areas, so-called because they contained alternate 

areas of Indian and non-Indian owned land, within and outside 

the boundaries of reservations. 

Allotments are lands held in trust for individual Indians—lands 

that are beneficially owned by an Indian, but over which the 

federal government has a fiduciary responsibility. Whether 

located within a reservation or not, allotments held in trust by 

the United States are considered Indian Country.24

Title 18 U.S.C §1151 does not explicitly address the status of 

tribal trust lands located outside of Indian reservations unless 

those lands are used for the residence of a dependent Indian 

community. 
Indian Country Criminal Jurisdiction 65

Thus, at least two types of tribal trust property have Indian 

Country status if used for the federal purpose of residence and 

support of Indians, which are lands purchased for a tribe 

pursuant to section 5 of the Indian Reorganization Act, and 

individual allotments converted to tribal trust property. Other 

types of tribal trust property have been held by courts to be 

Indian Country, but no general rule as to whether trust land 

located outside of reservation boundaries is Indian Country has 

yet emerged as of 2015. 

In 1991, the Supreme Court held that the test for determining 

whether land is Indian Country “does not turn upon whether that 

land is denominated ‘trust land’ or ‘reservation’... [but] whether 

the area has been ‘validly set apart for the use of the Indians as 

such, under the superintendence of the Government.’”25

This language suggests that tribal trust land may qualify as 

Indian Country for purposes of the federal criminal jurisdiction 

statute as well. In United States v. Roberts,26 the Court held that 

the Choctaw Nation Tribal Complex property, located in Durant, 

Oklahoma, is Indian Country for purposes of federal criminal 

jurisdiction. At issue was whether the federal courts had subject 

matter jurisdiction over the prosecution of a tribal member for 

sexual abuse offenses against another tribal member occurring 

at the tribal complex. The Court considered the following factors 

in determining whether the tribal complex was Indian Country, 

and thus subject to federal jurisdiction:

• the United States retains title to the property; 

• the State of Oklahoma considers the property beyond its 

taxation jurisdiction; 

• the BIA Area Director approved the land acquisition; 

• both the BIA and the Choctaw Nation treat the complex 

as trust property;

• the complex serves as the Nation’s governmental 
66 Indian Country Criminal Jurisdiction

headquarters; 

• the United States continues to have a supervisory role 

in the management of the property. 

In sum, determinations of Indian Country status depend on title 

to land or a showing that the area is a dependent Indian 

community.

3.3 Nature of Crime and Applicable Statutes

In most cases, criminal jurisdiction may be exercised by a tribe 

and the federal government together, by the tribe alone, or by the 

federal government alone. Federal crimes of general applicability 

are not affected by the special rules of Indian Country 

jurisidiction. In other words, all federal criminal statutes can be 

enforced regardless of location or tribal enrollment, so long as all 

of the elements of the charged offenses can be met. The general 

conspiracy statute, 18 U.S.C. §371, is also applicable in Indian 

Country if the object of the conspiracy is the commission of a 

crime of general federal application. Likewise, tribes may 

prosecute tribal members for any crimes committed in violation 

of tribal law.

Crimes not of general federal applicability are those typically 

handled by states, such as murder, robbery, assault, and so on. 

Determining which sovereign has jurisdiction over these crimes 

depends in part on whether the offender is Indian and whether 

the victim is Indian, whether the crime occurred in Indian 

Country, and whether the Indian Country Crimes Act, Major 

Crimes Act, or Assimilative Crimes Act apply, along with a number 

of other factors.
Indian Country Criminal Jurisdiction 67

3.3.1 Indian Country Crimes Act

In 1803, the United States purchased the territory of Louisana 

from the French. Later treaties with Indian tribes would create 

reservations inside the territory and under federal control, 

outside the reach of states. But fifteen states would eventually be 

granted land from the territory. 

Given the experience of the Cherokee in Georgia, Congress 

recognized a possibility that settlers and expansionists would 

commit crimes against the Indians to force them from the 

reservations; it was also possible that the states would fail to 

prosecute, leaving the Indians without protection as required by 

treaty. To prevent such an occurance, Congress enacted the 

Indian Country Crimes Act in 1817. 

The Indian Country Crimes Act ensured that the federal 

government could exercise jurisdiction over non-Indians who 

committed crimes in Indian Country after the territory was 

divided into these states by designated them as exclusive federal 

jurisidiction. If the offender is an Indian, the Indian Country 

Crimes Act does not apply.

The Act reads as follows:

§1152. Law governing

Except as otherwise expressly provided by law, the general 

laws of the United States as to the punishment of offenses 

committed in any place within the sole and exclusive 

jurisdiction of the United States, except the District of 

Columbia, shall extend to the Indian country.

This section shall not extend to offenses committed by one 

Indian against the person or property of another Indian, nor 
68 Indian Country Criminal Jurisdiction

to any Indian committing any offense in the Indian country 

who has been punished by the local law of the tribe, or to 

any case where, by treaty stipulations, the exclusive 

jurisdiction over such offenses is or may be secured to the 

Indian tribes respectively.

Today, the primary purpose of the statute is to allow prosecution 

for:

• Crimes committed by non-Indians against Indians; or

• Crimes by Indians against non-Indians that (1) do not fall 

under the Major Crimes Act and (2) have not already been 

punished by that tribe for the same conduct.

The statute’s primary effect has been to apply prosecutions to 

Indian Country in the same way as federal criminal statutes 

governing other federal enclaves like military installations, postal 

offices, and national parks. Unlike the Major Crimes Act, the 

Indian Country Crimes Act does not create new federal offenses, 

it simply creates federal jurisdiction.

Federal misdemeanors also can be prosecuted under the Indian 

Country Crimes Act, allowing prosecution of both non-Indian 

defendants as well as Indian defendants whose victims are nonIndians and who have committed crimes that (1) do not fall under 

the Major Crimes Act and (2) have not already been punished by 

that tribe for the same conduct.

The statute’s reference to punishment of an Indian offender by 

“the local law of the tribe” acknowledges the tribal courts’ primary 

jurisdiction over Indian defendants. If the Indian offender has not 

been prosecuted and punished under tribal law, then §1152

authorizes federal prosecution. If the tribe has prosecuted and 

punished an Indian offender who committed a crime against a 
Indian Country Criminal Jurisdiction 69

non-Indian, there is no federal jurisdiction under §1152. (The 

offender still may be prosecuted if the crime is specifically 

enumerated under the Major Crimes Act, discussed in the next 

section.)

Historically, the Indian Country Crimes Act does not apply where 

exclusive jurisdiction over specified offenses has been reserved to 

the tribe pursuant to a treaty; this provision has little relevance 

today, as very few treaties conferred exclusive jurisdiction to 

tribes.

Under a broad reading of §1152, it would seem that federal law 

should apply in Indian Country whenever a non-Indian is 

involved in an offense, including an offense against another nonIndian. While there does not appear to be any exception for 

crimes committed by a non-Indian against a non-Indian in the 

text of the Indian Country Crimes Act, the Supreme Court has 

exempted these offenses from federal and tribal jurisdiction.

In United States v. McBratney, 104 U.S. 621 (1882), the Supreme 

Court held that the states have exclusive criminal jurisdiction 

over crimes committed in Indian Country by non-Indians against 

non-Indians, absent treaty provisions to the contrary. This 

decision created what is known as the McBratney-Draper rule. 

Subsequent decisions have acknowledged this rule27 and today 

states have exclusive jurisdiction to prosecute crimes in Indian 

Country when:

• The offender and the victim are both non-Indian, or;

• If the crime is a victimless crime committed by a non-Indian.

3.3.2 Major Crimes Act

The Indian Country Crimes Act specifically exempts crimes 

committed by one Indian against the person or property of 
70 Indian Country Criminal Jurisdiction

another Indian from its coverage. Recall the Supreme Court held

that the federal government had no jurisdiction to try an Indian 

for the murder of another Indian in Crow Dog, thus tribes had 

exclusive jurisdiction over all crimes committed by Indians. After 

Crow Dog was decided in 1885, Congress passed the Major 

Crimes Act to allow federal prosecution of Indians for certain 

specified “victim” crimes, traditionally prosecuted by states.

The Major Crimes Act reads as follows:

§1153. Offenses committed within Indian country

Any Indian who commits against the person or property of 

another Indian or other person any of the following offenses, 

namely, murder, manslaughter, kidnapping, maiming, a 

felony under chapter 109A, incest, assault with intent to 

commit murder, assault with a dangerous weapon, assault 

resulting in serious bodily injury (as defined in section 1365 

of this title), an assault against an individual who has not 

attained the age of 16 years felony child abuse or neglect, 

arson, burglary, robbery, and a felony under section 661 of 

this title within the Indian country, shall be subject to the 

same law and penalties as all other persons committing any 

of the above offenses, within the exclusive jurisdiction of the 

United States.

The effect of the Major Crimes Act is to grant jurisdiction to federal 

courts—exclusive of the states—over Indians who commit any of 

the specifically listed Indian Country offenses, regardless of 

whether the victim is an Indian or non-Indian. All of the listed 

offenses are types of crimes normally prosecuted by the states, 

but the Major Crimes Act took jurisdiction from the states and 

gave it exclusively to the federal government. In addition, the 

federal Sentencing Guidelines apply to all convictions under the 

Major Crimes Act.
Indian Country Criminal Jurisdiction 71

When an Indian commits any of the enumerated offenses, the 

case must be brought in federal court under the Major Crimes 

Act. The Major Crimes Act is the only source of federal jurisdiction 

for crimes in which both the offender and the victim are Indians. 

The only jurisdictional requirement is that the crime must have 

occurred in Indian Country.

Therefore, if the offense committed is one of the 15 major crimes, 

the offender is Indian, and the victim is non-Indian, the Major 

Crimes Act will apply and grant federal jurisdiction over the 

Indian offender. If a crime is other than one of the 15 major 

crimes, the offender is Indian and the victim is non-Indian, the 

Indian Country Crimes Act will apply and grant federal 

jurisdiction over Indians for other felonies and misdemeanors. 

Consequently, more crimes can be federally prosecuted involving 

an Indian who commits a crime against a non-Indian than 

involving an Indian who commits a crime against another Indian.

For example, assault with intent to commit a felony other than 

murder or sexual abuse is a crime under 18 U.S.C. §113(a)(2), 

but is not listed in the Major Crimes Act and, therefore, it cannot 

be used in prosecutions of Indians who assault other Indians. 

Assault resulting in serious bodily injury is an enumerated 

offense in the Major Crimes Act, and must be brought under the 

Major Crimes Act if committed by an Indian against a non-Indian.

The crimes specified in the Major Crimes Act are defined by other 

federal statutes, except for burglary, child abuse or neglect, and 

incest. These crimes are to be defined and punished in 

accordance with the law of the state where the crime was 

committed.

While the listed crimes themselves can be prosecuted federally, 

attempts or conspiracies to commit Major Crimes Act felonies are 

generally found to be lacking federal jurisdiction. 
72 Indian Country Criminal Jurisdiction

By contrast, federal jurisdiction is supported under the Major 

Crimes Act in cases involving attempted sexual abuse because 

Chapter 109A felonies are contained within the §1153 list, and 

the Chapter 109A statutes explicitly include attempts. Attempted 

murder or attempted manslaughter may also be prosecuted 

(depending on the circumstances of the case) if charged as:

• assault with intent to murder;

• assault with a dangerous weapon; or

• assault resulting in serious bodily injury.

Even though non-specified crimes may not be charged in the first 

instance, they may appear at trial in the form of a lesser-included 

offense to the crime actually charged. If warranted by the 

evidence, a defendant is entitled to have an instruction submitted 

to the jury on a lesser-included offense even though the 

government could not have originally charged the defendant with 

the lesser crime. For example, a defendant could be charged with 

arson in federal court but convicted of the less-serious crime of 

destruction of property. If the jury returns a guilty verdict upon 

the lesser offense, the court has the jurisdiction to impose 

sentence for the lesser-included offense, even though it would not 

have had jurisdiction over the offense initially. 

Misdemeanors committed in Indian Country by Indians against 

other Indians do not qualify for federal jurisdiction under §1153 

except for assaults on juveniles under age 16. Tribal courts have 

jurisdiction over misdemeanors committed by one Indian against 

another in that court’s jurisdiction. Tribal courts’ sentencing 

power has been limited to misdemeanors by Congress because of 

the Indian Civil Rights Act of 196828 and other applications of 

federal criminal laws to Indian Country.

Tribal courts may prosecute felonies; however, penalties are 

much greater in federal court. Therefore, most tribes have 
Indian Country Criminal Jurisdiction 73

continued to rely primarily on the federal government to 

prosecute major felonies; a few tribes continue to prosecute 

serious crimes on their reservations, in spite of these severe 

constraints on their abilities to punish offenders, as a matter of 

sovereignty.

Major Crimes Act definitions (*also appears in ICCA)

Any 109A felony (sexual crimes)............18 U.S.C. §§ 2241-2245

Arson*...............................................................18 U.S.C. § 81

Assault - dangerous weapon*.....................18 U.S.C. § 113(a)(3)

Assault - intent to commit murder*.............18 U.S.C. § 113(a)(1)

Assault - serious bodily injury*...................18 U.S.C. § 113(a)(6)

Assault - under sixteen*..................18 U.S.C. §§ 113(a)(5), (a)(7)

Burglary...............................................Defined by state statute

Felony Child Abuse or Neglect................Defined by state statute

Felony Theft (Grand Larceny)*...........................18 U.S.C. § 661

Incest...................................................Defined by state statute

Kidnapping*............................................18 U.S.C. § 1201(a)(2)

Maiming*..........................................................18 U.S.C. § 114

Manslaughter*................................................18 U.S.C. § 1112

Murder*.........................................................18 U.S.C. § 1111

Robbery*........................................................18 U.S.C. § 2111

Definitions and elements for crimes under Major Crimes Act

Any 109(A) felony may be charged under the Major Crimes Act. 

(These offenses are addressed in a separate chapter.)

Arson involves willfully and maliciously setting fire to, burning, 

or attempting to set fire to or burn any building, structure, vessel, 

machinery, or building materials or supplies. If the building is a 

dwelling, or if a person’s life was placed in jeopardy, the 

maximum penalty is higher than if the building is not inhabited.
74 Indian Country Criminal Jurisdiction

Assault usually means either a common law battery (nonconsenting, offensive touching), or common law assault, namely 

an attempted battery or a threat, coupled with a present ability 

to commit a battery. The most common uses of the assault 

statutes are in physical altercations where the defendant has 

inflicted some type of bodily injury on the victim, from a tiny 

scratch or bruise to a potentially mortal wound. However, 

depending on proof of intent, discharging a gun or brandishing a 

knife or other weapon can also constitute an assault, even if no 

physical contact occurs.

Assault with a dangerous weapon requires that the assault be 

carried out with a dangerous weapon and that the assailant

intended to do bodily harm to the victim. It can apply to assaults 

when there is no physical contact—such as when the defendant 

fires a gun but no one is hit, or when the defendant brandishes 

a knife but does not actually slash the victim—as long as the 

intent element can be proven. The most common dangerous 

weapons are guns and knives. 

Many other objects, however, can qualify as “dangerous 

weapons” under this statute. In United States v. Sturgis, the 

Fourth Circuit held an HIV-positive defendant who knew that he 

was HIV-positive used his teeth as dangerous weapons when he 

attempted to bite officers. In United States v. Riggins, a belt and 

shoe were dangerous weapons when a parent beat a two-year-old 

child as hard as she could; the belt and shoe were used in a 

manner likely to endanger life or inflict great bodily harm based 

on the size difference and the young age of the victim. In United 

States v. Murphy, the Fourth Circuit held that “...virtually any 

object that can be used or attempted to be used to inflict grave 

physical injury constitutes a dangerous weapon” when a federal 

prisoner grabbed the jailer by the head and forcibly slammed it 

into the steel bars of jail cell-block, then beat the jailer with his 

fists. 
Indian Country Criminal Jurisdiction 75

In United States v. Gholston, the Eleventh Circuit held that a desk 

was a dangerous weapon: “Whether an object is a dangerous 

weapon turns not on the object’s latent capability alone, but also 

on the manner in which it was used...” Assault with a dangerous 

weapon is a specific intent crime. Consequently, voluntary 

intoxication can be a defense, but is not automatically a 

justification.

Assault with intent to commit murder may be established if 

there is evidence of the assailants’ intent to kill beyond a 

reasonable doubt, even without physical harm to the victim.

Assault resulting in serious bodily injury is defined in 

§113(b)(2) by reference to 18 U.S.C. 1365(g)(3). Serious bodily 

injury is thus an injury involving a substantial risk of death; or 

extreme physical pain or protracted and obvious disfigurement; 

or protracted loss or impairment of the function of a bodily 

member, organ, or mental faculty. This definition has arguably 

made it more difficult to prosecute this type of crime by 

narrowing the scope of injury; once the injury is proven, however, 

the government needs only prove that there was an assault and 

that it resulted in serious bodily injury. Unlike assault with a 

dangerous weapon, this is a general intent crime. 

Assault under sixteen may be charged under 18 U.S.C. 

§113(a)(5) if there is no substantial bodily injury that results. 

Assaults that result in substantial bodily injury to child under 

sixteen may also be charged under the more serious18 U.S.C. § 

113(a)(7). As with assault resulting in serious bodily injury, this 

offense is a general intent crime. All that is necessary to prove is 

that the defendant assaulted a child under sixteen and that the 

child suffered “substantial” bodily injury. “Substantial bodily 

injury” includes many of the same elements as §113(b): a 

temporary but substantial disfigurement; or a temporary but 

substantial loss or impairment of the function of any bodily 
76 Indian Country Criminal Jurisdiction

member, organ, or mental faculty. The difference is that there is 

no requirement of an injury involving a substantial risk of death.

Burglary is assimilated from state law, therefore the elements of 

burglary will also be assimilated from the law of the state where 

the crime occurs. A common definition is “an unauthorized 

breaking and entering of a building or dwelling of another with 

the intent to commit a felony once inside.” The penalty for 

burglary is likewise assimilated from state law. For example, an 

Indian commits a burglary on a reservation in Arizona. Burglary 

is a crime under the Major Crimes Act. In a prosecution for 

burglary, the United States would generally rely on federal law.

As there is no section in Title 18 to define burglary, the Arizona

statute prohibiting burglary would be used. The federal 

government could not assimilate the tribe’s Criminal Code.

Felony child abuse or neglect is assimilated from state law, 

therefore the elements of incest will also be assimilated from the 

law of the state where the crime occurs. As an example, an Indian 

resides on and is a member of a reservation located in Montana. 

In a prosecution for felony child abuse, the United States would 

generally rely on federal law. As there is no section in Title 18 to 

define incest, the Montana statute prohibiting incest would be 

used. The federal government could not assimilate the tribe’s 

Criminal Code.

Felony theft is the taking and carrying away of personal 

property of another worth more than $1,000.00 with intent to 

steal or purloin. If the property taken has a value of more than 

$1,000.00, or if it was taken from the person of another, the 

offense constitutes grand larceny. Felony thefts may be 

prosecuted federally when both the offender and the victim are 

Indians. Both felony and misdemeanor thefts occurring in Indian 

Country can be prosecuted if the defendant is non-Indian and 

the victim is Indian, under the Indian Country Crimes Act.
Indian Country Criminal Jurisdiction 77

If the property taken has a value of less than $1,000.00, the theft 

is a misdemeanor (petty larceny). Therefore, only non-Indians 

can be federally prosecuted for committing petty larceny if the 

victim is Indian and the crime occurred in Indian Country.

For example, if a non-Indian steals a horse worth $900.00 from 

an Indian on a reservation in North Dakota, the U.S. District 

Court for the District of North Dakota would have jurisdiction to 

hear a misdemeanor (petty larceny) case under the Indian 

Country Crimes Act but could not hear the case under the Major 

Crimes Act.

By contrast, if an Indian steals a horse worth $2,000.00 from 

another Indian on a reservation in North Dakota to replace the 

horse stolen in the previous example, the U.S. District Court for 

the District of North Dakota would have jurisdiction to hear a 

felony (felony theft) case under the Major Crimes Act.

Incest is assimilated from state law, therefore the elements of 

incest will also be assimilated from the law of the state where the 

crime occurs. for example, an Indian resides on and is a member 

of a tribal community located in New Mexico. For the past year, 

he and his adult niece who also lives on the reservation, have had 

an incestuous relationship. Incest is a crime under the Major 

Crimes Act. In a prosecution for incest, the United States would 

generally rely on federal law. As there is no section in Title 18 to 

define incest, the New Mexico statute prohibiting incest would be 

used. The federal government could not assimilate the tribe’s 

Criminal Code.

Kidnapping requires that the defendant unlawfully seizes 

another person, or confines, kidnaps, abducts, or carries away 

and holds him for ransom or reward or otherwise. The most 

common federal jurisdictional hook in kidnapping cases arises in 
78 Indian Country Criminal Jurisdiction

§1202(a)(1), when the kidnapped person is transported in 

interstate commerce. When any of the specified acts of 

kidnapping occur in Indian Country, the kidnapping is federally 

prosecutable under §1153 and §1201(a)(2) even if it does not 

occur across state lines. Under this statute, it is not a crime if 

the kidnapper is the parent of the kidnapped child until the 

parent removes a child from the United States or keeps the child 

outside the United States with intent to obstruct another’s lawful 

exercise of parental rights. Once kidnapping becomes an 

international matter, kidnapping statutes apply to parents.

Maiming includes cutting, biting, or slitting another’s nose, ear, 

or lip; cutting out or disabling the victim’s tongue; putting out or 

destroying the victim’s eye; cutting off or disabling the victim’s 

limb or other bodily member; and throwing or pouring scalding 

water, corrosive acid, or a caustic substance on the victim. In so 

doing, the defendant must have the intent to maim or disfigure. 

Maiming is a Major Crimes Act felony and can be used in all 

Indian Country prosecutions. As a practical matter, it is not used 

very often. The facts usually fit one of the felony assaults, often 

serious bodily harm.

Manslaughter is “the unlawful killing of a human being without 

malice,” committed either voluntarily or involuntarily:

§1112. Manslaughter

Manslaughter is the unlawful killing of a human being 

without malice. It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not 

amounting to felony, or in the commission in an unlawful 

manner, or without due caution and circumspection, of a 
Indian Country Criminal Jurisdiction 79

lawful act which might produce death. 

Voluntary manslaughter comes about “upon a sudden quarrel or 

heat of passion.” Heat of passion includes strong emotions like 

rage, resentment, anger, terror, and fear. Something less than 

fear of deadly force may constitute sufficient provocation to 

reduce the offense to involuntary manslaughter. However, mere 

words standing alone are not sufficient provocation, no matter 

how offensive, insulting, or abusive. Voluntary intoxication is not 

a defense to voluntary manslaughter.

Involuntary manslaughter may be the result of a misdemeanor 

act, or a lawful act without due caution which might produce 

death. The first type is most commonly prosecuted as impaired 

driving resulting in death in states where the impaired driving 

itself is not a felony. 

It is necessary to cite to—and prove the elements of—the 

underlying state law to establish that the defendant’s conduct 

constituted a misdemeanor. It is also possible to use tribal law to 

define the underlying misdemeanor offense in involuntary 

manslaughter cases. If the involuntary manslaughter charge 

arises in Indian Country under the Major Crimes Act because the 

offender is Indian, the definition of misdemeanor conduct can be 

established by tribal laws.29 For example, a federal manslaughter 

conviction was sustained by the Eighth Circuit Court of Appeals, 

where the underlying misdemeanor was the Standing Rock Sioux 

Tribe’s reckless driving statute.30 

The second type of involuntary manslaughter results from a 

defendant committing a lawful act that might result in death (1) 

in an unlawful manner, or (2) in a lawful manner but without due 

caution and circumspection. Accidental shootings are the leading 

example of this type.
80 Indian Country Criminal Jurisdiction

Murder is “the unlawful killing of a human being with malice 

aforethought.” Common law provides the definition for “malice 

aforethought” and means to kill someone deliberately and 

intentionally, or to act with extreme recklessness or callous and 

wanton disregard for human life, which in turn results in the 

victim’s death:

§1111. Murder—

(a). Murder is the unlawful killing of a human being with 

malice forethought. Every murder perpetrated by poison, 

lying in wait, or any other kind of willful, deliberate, 

malicious, and premeditated killing; or committed in the 

perpetration of, or attempt to perpetrate, any arson, escape, 

murder, kidnapping, treason, espionage, sabotage, 

aggravated sexual abuse or sexual abuse, burglary, or 

robbery; or perpetrated from a premeditated design 

unlawfully and maliciously to effect the death of any human 

being other than him who is killed, is murder in the first 

degree. Any other murder is murder in the second degree.

First Degree Murder: Murder perpetrated by “willful, deliberate, 

malicious, and premeditated means” is first degree murder. The 

time necessary for premeditation depends on the facts of each 

case. The doctrine of transferred intent specifically applies: A 

person who, with premeditation, sets out to kill one victim and 

ends up killing another is guilty of first degree murder of the 

decedent, even though he may not have had any intent to kill the 

decedent. Voluntary intoxication can be a defense to first degree 

murder, if the defendant’s intoxication rendered him incapable of 

premeditation.

Felony-Murder: Certain felony-murders also qualify as first 

degree murder. These include killings committed during the 

course of, or in an attempt to commit, eleven specified crimes 

that include: Arson; Kidnapping; Sexual abuse; Burglary; and 
Indian Country Criminal Jurisdiction 81

Robbery. The predicate crimes (the crime that forms the basis of 

the felony-murder charge) normally are defined by reference to 

the appropriate federal statute. In a felony-murder prosecution, 

it is not necessary to prove that the defendant specifically 

intended that the victim die. Federal common law is not 

completely consistent because it derives from federal courts’ 

analyses of English common law as it has evolved in the various 

states. Many federal courts have held that the only necessary 

mens rea is the intent to commit the underlying felony. There is 

a requirement that the death have been caused by an act that 

was committed in furtherance of the underlying felony and that 

the possibility of death have been reasonably foreseeable.

Second Degree Murder: All murders not included in the statutory 

definition of first degree murder are second degree murders. 

Most of these are intentional killings that simply lack the 

aggravating factors that qualify a homicide as first degree 

murder. However, the common law “abandoned and malignant 

heart” second degree murder may also be applicable. Distinction 

between the degree of recklessness necessary for second degree 

murder and for manslaughter is not always easy to articulate.

Robbery is the taking or attempting to take anything of value 

from the person or presence of another by means of force, 

violence, or intimidation. Even though the statute on its face 

criminalizes attempts, courts have precluded federal prosecution 

under the Major Crimes Act of Indians who attempt to rob other 

Indians in Indian Country but do not, in fact, succeed in the 

attempt.31

3.3.3 Assimilative Crimes Act

The federal government has exclusive jurisdiction to prosecute 

Indians under the Major Crimes Act and non-Indians in Indian 

Country under the Indian Country Crimes Act; only the Major 
82 Indian Country Criminal Jurisdiction

Crimes Act actually includes definitions and punishments for 

most enumerated crimes. There are some notable exceptions; the 

crimes of incest, burglary and felony child abuse or neglect are 

not defined in the federal criminal code. 

Without definitions for crimes under the Indian Country Crimes 

Act, a gap exists between offenses which can be committed in 

Indian Country and offenses found in the United States Code: 

“Congress has always assumed that the basic, comprehensive 

body of criminal law would be legislated by the states,”32 and so 

not all potential offenses are found within federal statutes.

To fill the gap, Congress passed the Assimilative Crimes Act, 18 

U.S.C. §13. The Assimilative Crimes Act effectively borrows 

definitions for state criminal offenses where there is no applicable 

federal definition for enumerated offenses. These definitions are 

applied to crimes in areas under exclusive federal jurisdiction, 

including Indian Country:

Whoever within [the special maritime and territorial 

jurisdiction of the United States] is guilty of any act or 

omission which, although not made punishable by any 

enactment of Congress, would be punishable if committed or 

omitted within the jurisdiction of the State, Territory, 

Possession, or District in which such place is situated, by 

the laws thereof in force at the time of such act or omission, 

shall be guilty of a like offense and subject to a like 

punishment...

Thus, an individual who commits a crime covered by the 

Assimilative Crimes Act is charged with a federal offense which is 

defined by the relevant state statute, but is tried in federal court 

and punished according to the State statute’s prescribed 

sentence. 
Indian Country Criminal Jurisdiction 83

If a federal statute is available and on point, that statute must be 

used instead of the state statute even if it results in a lesser 

sentence.

The Assimilative Crimes Act is one of the “general laws of the 

United States” extended to Indian Country by the Indian Country 

Crimes Act (§1152).33 Where there is no applicable substantive 

federal crime specific to Indian Country, the law of the state in 

which the crime occurred may be incorporated into the federal 

criminal code, and then used in §1152 prosecutions pursuant to 

the Assimilative Crimes Act. This means that the Indian Country 

Crimes Act and the Assimilative Crimes Act work hand-in-hand.

If a non-Indian committed an offense in Indian Country that was 

not defined in federal law but would be a crime if it occurred in 

an area of state jurisdiction, 18 U.S.C. §1152 would allow 

assimilation of the state elements and punishment for the crime. 

State misdemeanors against persons and personal property also 

can be assimilated: property damage crimes; trespass; assaults 

(other than §1153 assaults); drunken driving resulting in injury 

or property damage; and non-governmental frauds and 

embezzlements are all commonly assimilated crimes.

Crimes committed against no particular person or their property, 

but rather against public order and morals, are characterized as 

“victimless crimes.” These typically include such offenses as 

traffic violations, disorderly conduct, prostitution, gambling, 

narcotics offenses, and drunken driving when there is no injury 

to persons or property other than the offender’s person or 

property. When these victimless crimes are committed in Indian 

Country, federal prosecutions, based on §1152 (the Indian 

Country Crimes Act) and §13 (the Assimilative Crimes Act) can 

occur only in certain limited circumstances:
84 Indian Country Criminal Jurisdiction

• When the offender in a victimless crime is Indian, both 

the tribe and the United States may assert jurisdiction; the 

tribe under tribal law and the United States under 

§1152;34 

• When the offender in a victimless crime is non-Indian, 

however, the state has exclusive jurisdiction.35 Neither the 

tribe nor the United States may prosecute.

The Assimilative Crimes Act also provides the means to define 

incest, burglary and felony child abuse or neglect in the Major 

Crimes Act; these crimes are not otherwise defined in federal law.

3.4 Public Law 280

One complication to using these federal statutes is that some 

areas of Indian Country have been removed from exclusive 

federal jurisdiction by Public Law 280.

In 1953, Congress exercised its plenary power and compelled six 

states (Alaska, California, Minnesota, Nebraska, Oregon, and 

Wisconsin) to assume jurisdiction over crimes occurring in all or 

specified parts of Indian Country in those states, pursuant to 

Public Law 280 and 18 U.S.C. §1162. 

The six “mandatory” states have exclusive criminal jurisdiction,

which means that the federal government does not exercise 

criminal jurisdiction for Indian Country offenses. The tribes 

continue to have criminal jurisdiction and authority to enforce 

their own laws over Indians within the reservation boundaries, 

just as in non-Public Law 280 states.

However, as of 2015, several Indian land areas within these 

mandatory states are exempt from state jurisdiction, and are 

instead within federal jurisdiction:
Indian Country Criminal Jurisdiction 85

• Boise Forte Chippewa Indian Reservation (Minnesota);36

• Confederated Tribes of the Umatilla Reservation 

(Oregon);

• Menominee Reservation (Wisconsin); 

• Metlakatla Native Community (Alaska);37

• Omaha Reservation (Nebraska);

• Red Lake Reservation (Minnesota);

• Warm Springs Reservation (Oregon); and

• Winnebago Reservation, except for public roads and 

highways (Nebraska).

Where no exemption applies to lands within the six mandatory 

states, there is no exclusive federal jurisdiction.

Public Law 280 also allows other than the mandatory states to 

assume jurisdiction only over certain crimes or certain 

reservations within the state. States that are not mandatory 

states are called “optional” states. Under the Indian Civil Rights 

Act,38 optional states are required to obtain consent from a tribe 

before the state voluntarily assumes jurisdiction over the affected 

tribe. 

Under the Tribal Law and Order Act of 2010, tribal governments 

may also request that the Department of Justice re-assume 

federal criminal jurisdiction over that tribe’s Indian Country. If 

DOJ grants the request, the federal government may once again 

prosecute Indian Country General Crimes Act and Major Crimes 

Act cases from that reservation, located in a Public Law 280

jurisdiction.

As of 2015, Arizona, Florida, Idaho, Iowa, Montana, Nevada, 

North Dakota, Utah, South Dakota, and Washington have all 

assumed some degree of jurisdiction over crimes committed by 
86 Indian Country Criminal Jurisdiction

tribal members on tribal lands.

Arizona originally was given criminal and civil jurisdiction 

over the Pascua Yaqui Indians comparable to that in Public 

Law 280. In 1985, the state retroceded criminal and civil 

jurisdiction over the Pascua Yaqui Indian Reservation. The 

State of Arizona also has assumed criminal and civil 

jurisdiction over air pollution in Indian Country. 

Florida assumed full criminal and civil jurisdiction under 

Public Law 280.

Idaho assumed criminal and civil jurisdiction concerning 

the following seven matters: compulsory school 

attendance; juvenile delinquency and youth rehabilitation; 

dependent, neglected, and abused children; insanities and 

mental illness; public assistance; domestic relations; and 

operation and management of motor vehicles upon 

highways and roads maintained by the county or state, or 

their political subdivisions. 

Iowa assumed civil jurisdiction over the Sac and Fox 

Reservation in Tama County. 

Montana assumed criminal jurisdiction over the Flathead 

Reservation. The state has retroceded partial criminal 

jurisdiction over the Confederated Salish and Kootenai 

Tribes, which are no longer subject to the state’s criminal 

misdemeanor jurisdiction. 

Nevada assumed full criminal and civil jurisdiction under 

Public Law 280 and subsequently retroceded jurisdiction 

for most reservations. 

North Dakota passed legislation which would permit it to

assume civil jurisdiction only with tribal consent. No tribe 
Indian Country Criminal Jurisdiction 87

has consented to the state’s civil jurisdiction as of 2015. 

Utah passed legislation which permitted it to assume civil 

and criminal jurisdiction only with tribal consent. No tribe 

has consented to the state’s jurisdiction as of 2015. 

Washington assumed an “incredibly complicated partial 

assumption of [criminal and civil] jurisdiction” 39 under 

Public Law 280 without tribal consent. The areas of 

jurisdiction asserted by Washington include:40 jurisdiction 

over all non-Indians wherever located on a reservation, 

including tribal trust or allotted lands; jurisdiction over 

crimes committed by Indians or non-Indians on fee 

patented lands within reservations; compulsory school 

attendance; public assistance; domestic relations; mental 

illness; juvenile delinquency; adoption proceedings 

(modified by the Indian Child Welfare Act); dependent 

children (modified by the Indian Child Welfare Act); and 

operation of motor vehicles on public streets, alleys and 

roads and highways. For all other matters, the state has 

retroceded jurisdiction over several tribes: Tulalip Tribe;41

all criminal jurisdiction over the Confederated Tribes of the 

Chehalis Reservation, Quileute Indian Reservation, 

Swinomish Tribal Community;42 all criminal jurisdiction 

over the Colville Reservation;43 criminal and civil 

jurisdiction over the Suquamish Port Madison 

Reservation;44 and criminal and civil jurisdiction over the 

Quinault Tribe.45

Unlike in the mandatory Public Law 280 states, the Major Crimes 

Act and the Indian Country Crimes Act still apply.46 This means

that both the federal and state governments may punish conduct 

that violates either of these federal statutes and state law.47 In 

both the mandatory and optional Public Law 280 states, the 

tribes retain their inherent sovereign powers to enforce criminal 
88 Indian Country Criminal Jurisdiction

and civil laws against Indians within their reservations. 

Therefore, tribes in the mandatory and optional Public Law 280

states have concurrent jurisdiction over offenses committed by 

Indians on their reservations.48 Public Law 280 also specifically 

denies states authority to alienate, encumber, or tax Indian trust 

property, or to regulate hunting, fishing, and trapping rights 

protected by treaty, statute, or agreement.49

Several states were given partial criminal jurisdiction over 

reservations through special jurisdictional legislation passed by 

Congress, prior to passage of Public Law 280.50

California was given criminal and civil jurisdiction over the 

Agua Caliente Reservation in 1949.51

New York was given criminal jurisdiction over all 

reservations in 1948, however the Major Crimes Act and the 

Indian Country Crimes Act still apply52 and state does not 

have jurisdiction over hunting and fishing by Indians 

pursuant to agreement, treaty, or customs.53 

Iowa was given criminal jurisdiction over the Sac & Fox 

Reservation in 1943,54 but the Major Crimes Act and the 

Indian Country Crimes Act still apply.55 

Kansas was given partial criminal jurisdiction over all 

reservations (Iowa Reservation, Kickapoo Reservation, 

Prairie Band Potawatomi Reservation, Sac and Fox 

Reservation56) in 1940, however the Major Crimes Act and 

the Indian Country Crimes Act still apply.57

North Dakota was given partial criminal jurisdiction over 

the Devil’s Lake Reservation (now called the Spirit Lake 

Reservation), but tribal, federal, and state authorities now 

regard this transfer of jurisdiction to be invalid.58
Indian Country Criminal Jurisdiction 89

Texas was given criminal and civil jurisdiction over the 

Ysleta del Sur and the Alabama and Coushatta Tribes59

once Congress restored federal recognition. 

Connecticut has full criminal jurisdiction over the 

Mashantucket Tribe60 and criminal jurisdiction over the 

Mohegan Tribe pursuant to a settlement act that 

established a reservation and allowed the exercise of state 

law criminal jurisdiction over offenses committed by or 

against Indians on the Mohegan Reservation,61 but the 

Mohegan Tribe has concurrent jurisdiction over these 

offenses62 and Major Crimes Act still applies on the 

Mohegan Reservation.63 

States generally have no criminal jurisdiction over Indians in 

Indian Country, unless there has been an assumption of 

jurisdiction pursuant to federal law; however, several courts have 

validated state police arrests of Indians on the reservation for 

crimes committed off the reservation.

Regardless of the application of Public Law 280 in certain states, 

some general federal criminal statutes are effective throughout 

the United States, and apply in Indian Country—regardless of 

whether the offender is Indian or non-Indian. Federal crimes of 

nationwide applicability likely to be a concern on the reservation 

include:

(1) Controlled Substances Act (Distribution and 

Possession with Intent to Distribute), 21 U.S.C. 

§841(a)(1);

(2) Felon in Possession of a Firearm, 18 U.S.C. §922(g);

(3) Youth Handgun Safety Act, 18 U.S.C. §922(x)(2); and 
90 Indian Country Criminal Jurisdiction

(4) Violence Against Women Act (VAWA).

Part of the Violent Crime Control and Law Enforcement Act of 

1994, VAWA has become especially important in Indian Country. 

It provides federal tools for prosecuting domestic violence 

situations involving firearms, interstate travel or activity.

The statutory basis for federal jurisdiction over crimes occurring 

in Indian Country is found in 18 U.S.C §§ 1151-1170. Federal 

court decisions at all levels, and particularly the Supreme Court, 

have been instrumental in establishing the jurisdictional 

boundaries of federal, tribal, and state governments. When 

considering federal jurisdiction in Indian Country, attention 

must be directed to the location of the crime, whether the 

offender is Indian or non-Indian, whether the victim is Indian or 

non-Indian, and the type of crime. Together, these factors 

determine which sovereign has jurisdiction over the crime.

3.5 Concurrent Jurisdiction, Double Jeopardy

Federal and tribal courts have concurrent jurisdiction for crimes 

that constitute a major felony under §1153. Tribal courts retain 

jurisdiction to prosecute Indians for conduct that also 

constitutes a major felony, despite the limits on tribal courts’ 

sentencing authority imposed by the Indian Civil Rights Act. At 

least one federal appellate court has concluded that tribal courts 

have concurrent jurisdiction to punish conduct that also 

constitutes an offense under the Major Crimes Act.64 Other 

federal courts have suggested in dicta that tribal court 

jurisdiction over serious crimes committed by tribal members 

has been preempted by the federal government through the Major 

Crimes Act. To date, the Supreme Court has not decided this 

issue. 
Indian Country Criminal Jurisdiction 91

The Constitutional prohibition against double jeopardy does not 

apply to successive tribal and federal prosecutions for the same

conduct. The Supreme Court ruled in United States v. Wheeler65

that there is no double jeopardy when tribes and the federal 

government prosecute for the same criminal act, because tribes 

and the federal government are separate sovereigns. Therefore, 

the federal government may prosecute an Indian for a Major 

Crimes Act felony arising out of the same conduct for which he 

has already been prosecuted in tribal court. 

3.6 Limits on State Jurisdiction

Outside of Indian Country, states have general criminal 

jurisdiction over all persons whether or not they are Indian or 

non-Indian. 

Within Indian Country, the relationships between Indian tribes 

and states vary significantly from state to state. As a general 

principle, the federal government has such broad power over 

tribes that state authority in Indian Country is excluded in favor 

of federal or tribal authority.

Unless granted jurisdiction by Public Law 280, states have no 

jurisdiction to prosecute Indians who commit crimes in Indian 

Country and thus do not exercise criminal jurisdiction in Indian 

country over crimes by Indians against anyone. In other words, 

Non-Public Law 280 states have no jurisdiction to prosecute 

Indian offenders who commit crimes in Indian Country, whether 

committed against other Indians or non-Indians. Thus, state 

jurisdiction is generally limited to crimes that do not affect 

Indians or Indian interests for Non-Public Law 280 states.

Courts have allowed some exercise of authority by states under 

limited circumstances. In Fournier v. Roed, 161 N.W.2d 458 (N.D. 

1968), the North Dakota Supreme Court affirmed the power of a 
92 Indian Country Criminal Jurisdiction

deputy sheriff to make a warrantless arrest of an Indian on the 

Fort Totten reservation. Even though the Ramsey County deputy 

sheriff had to cross over into another jurisdiction to effect the 

warrantless arrest for a felony larceny of an automobile, and the 

court recognized that North Dakota had no criminal jurisdiction 

on the reservation, it was concerned that the state would “become 

helpless when an offense is committed off the reservation by an 

Indian who escapes to the reservation before he is apprehended.” 

In Old Elk v. District Court,66 the Supreme Court of Montana held 

that an arrest of a Crow Indian on the Crow Reservation by a 

state officer pursuant to a state warrant was valid. The defendant 

was charged with “deliberate homicide” which occurred off the 

reservation. The defendant, Old Elk, challenged this action as an 

illegal arrest and de facto extradition. In upholding the arrest, the 

Montana court emphasized the Crow Tribe’s lack of an 

extradition statute and the tribal judge’s refusal to issue an 

arrest warrant. The court also expressed concern that the crime 

would go unpunished if the state did not validate the arrest, since 

federal jurisdiction was lacking because the crime had not been 

committed in Indian Country.

In Arizona v. Herber,67 the Arizona Court of Appeals upheld the 

warrantless arrest of a non-Indian by state law enforcement 

officers, who followed him onto the Papago Indian reservation 

(now known as the Tohono O’odham Reservation). A non-Indian 

who had been convicted of possession of marijuana for sale 

appealed his conviction on the basis that the state had no 

jurisdiction on the reservation. In upholding the conviction, the 

Arizona appellate court stated that because the state has 

“undisputed authority” to prosecute and punish non-Indians for 

crimes against non-Indians committed on the reservation, the 

state had jurisdiction to arrest him on the reservation.
Indian Country Criminal Jurisdiction 93

3.7 Limits on Tribal Jurisdiction

From 1978 to 1990, the Supreme Court placed increasingly 

severe limits on tribal criminal jurisdiction over non-Indian and 

non-member Indian offenders. In Oliphant v. Suquamish Indian 

Tribe,68 the Supreme Court held that tribal courts do not have 

criminal jurisdiction to prosecute and punish non-Indian 

offenders. In Oliphant, a non-Indian assaulted a tribal police 

officer on the reservation during an annual tribal festival. The 

non-Indian resisted arrest before he was taken into custody and 

prosecuted. He then filed a writ of habeas corpus after his arrest. 

The tribe argued that it had inherent sovereignty to enforce its 

laws within its boundaries and that Congress had never taken 

away this power through treaty or legislation. The Ninth Circuit 

agreed with the tribe, but the Supreme Court held that tribes 

have no criminal jurisdiction over non-Indians because this was 

inconsistent with their domestic dependent nation status: 

• If both the offender and the victim are non-Indian, the 

state has exclusive jurisdiction under McBratney.

• If the offender is non-Indian victim is Indian, the federal 

government has exclusive jurisdiction under the Indian 

Country Crimes Act.

In Duro v. Reina,69 the Supreme Court held that tribal courts 

have no criminal jurisdiction over Indians who are members of 

other tribes. In this case, a juvenile Indian was shot and killed 

by an Indian from a different tribe. The juvenile’s tribe brought 

charges after the federal government declined to prosecute. The 

Supreme Court said the tribes were precluded by their domestic 

dependent nation status from exercising criminal jurisdiction 

over non-member Indians; with the state precluded from 

charging, the federal government declining to charge, and the 

tribe unable to charge, there was no prosecution for the killing. 
94 Indian Country Criminal Jurisdiction

This decision created the potential for a jurisdictional void over 

crimes committed in Indian Country, so Congress passed an 

amendment to the Indian Civil Rights Act that same year. This 

legislation is widely referred to as the “Duro fix.” Through this 

legislation, Congress legislatively overrode the U.S. Supreme 

Court’s Duro decision and recognized the tribes’ inherent 

authority to exercise criminal jurisdiction over all Indians – not 

just members of the tribe – who commit crimes within their 

reservation borders.

The Indian Civil Rights Act provides that, for purposes of tribal 

criminal jurisdiction, an “Indian” is:

“any person who would be subjected to the jurisdiction of 

the United States as an Indian under section 1153 of Title 

18 if that person were to commit an offense listed in that 

section in Indian country to which that sections applies.” 

Consequently, any person who qualifies as an “Indian” for 

purposes of federal criminal jurisdiction under the Major Crimes 

Act, is an “Indian” for purposes of tribal criminal jurisdiction. 

However, because Congress did not define the term “Indian” in 

Title 18, a determination of who is an Indian for purposes of tribal 

criminal jurisdiction depends on case law, as previously 

discussed.

For example: an Oglala Lakota Indian commits a battery against 

an Omaha Indian. Both live on the Navajo Reservation and this 

is where the battery occurs. The Navajo Nation prosecutes the 

Oglala Sioux under its criminal code. If the Oglala Sioux 

challenges the Navajo Nation Tribal Court’s jurisdiction over him 

by filing a writ of habeas corpus to the federal court, the challenge 

would fail because the Tribe has the ability to prosecute Nonmember Indians after the Duro fix.
Indian Country Criminal Jurisdiction 95

Today, tribes have the power to create tribal courts and to assert 

criminal jurisdiction over Indian offenders. As discussed above, 

it is not a violation of double jeopardy for a tribal court to charge 

an Indian defendant who has also been charged in federal court 

for essentially the same conduct. Tribes have concurrent 

jurisdiction over crimes that also constitute major felonies.

For example, Wetsit v. Stafne, 44 F.3d 323 (9th Cir. 1995), a 

member of one of the Ft. Peck Tribes (Assiniboine and Sioux) 

stabbed her common law husband to death. Her husband was a 

tribal member, and the stabbing took place within the Ft. Peck 

Reservation boundaries. First, she was indicted in federal court 

on voluntary manslaughter charges under the Major Crimes Act 

and acquitted by federal jury. She was then charged with 

manslaughter for the same killing by the tribe. She was convicted 

by a jury, sentenced to one year incarceration, fined $2,500, and 

ordered to participate in mental health treatment and a domestic 

abuse program. Arguing that the federal court had exclusive 

jurisdiction under the Major Crimes Act, she petitioned for a writ 

of habeas corpus to the federal court. The Ninth Circuit held that 

a tribal court has jurisdiction to try a tribal member for a crime 

that is also prosecutable under the Major Crimes Act because 

tribes have not given up their power to prosecute their members 

for tribal offenses “by virtue of their dependent status.”70 The 

Wetsit court also noted the Duro Court’s continuing approval of 

the principle that a tribe criminally punishing a tribal member 

for murder acts as an independent sovereign.

3.7.1 Optional Jurisdiction under VAWA

After Oliphant, tribal jurisdiction was also seriously limited in the 

area of domestic violence. Consider the following example: A nonIndian has been violent towards an Indian spouse for a period of 

several years. Tribal officers are the first responder to each 

domestic violence dispatch, but could only restrain the offender, 
96 Indian Country Criminal Jurisdiction

determine the offender’s status (non-Indian), determine the 

victim’s status (Indian), determine jurisdiction (federal), and the 

detain for a federal officer to make the arrest since tribal officers 

could not arrest. 

With the 2013 reauthorization of the Violence against Women Act

(VAWA), Congress restored limited tribal jurisdiction for tribes 

that adopted VAWA provisions. Tribes that adopt VAWA may 

exercise their sovereign power to issue and enforce civil 

protection orders as well as investigate, prosecute, convict, and 

sentence both Indians and non-Indians who assault Indian 

spouses or dating partners or violate a protection order in Indian 

Country under VAWA. 

To adopt VAWA and exercise the authority to prosecute nonIndians, a tribe must:

• Protect the rights of defendants under the Indian Civil 

Rights Act of 1968, by providing due process rights similar 

to those in the Constitution;

• Protect the rights of defendants described in the Tribal Law 

and Order Act of 2010, by providing effective assistance of 

counsel for defendants; free, appointed, licensed attorneys 

for indigent defendants; law-trained tribal judges who are 

also licensed to practice law; publicly available tribal 

criminal laws and rules, and; recorded criminal 

proceedings;

• Include a fair cross-section of the community in jury pools 

and not systematically exclude non-Indians;

• Inform defendants of their right to file federal habeas 

corpus petitions if they are ordered detained by a tribal 

court.

Offenses covered by VAWA are defined by tribal law (much in the 

way that federal law borrows from state law under the 

Assimilative Crimes Act):
Indian Country Criminal Jurisdiction 97

• Domestic violence;

• Dating violence; and

• Criminal violations of protection orders.

VAWA does not limit the authority of federal and state 

prosecutors to prosecute non-Indians in Indian Country where 

they may have jurisdiction; it allows tribal prosecutors to 

prosecute non-Indian offenders concurrently, not exclusively. 

VAWA does not authorize prosecution of non-Indians by tribal 

prosecutors for any of the following crimes:

• Crimes committed outside of Indian country;

• Crimes between two non-Indians;

• Crimes between two strangers, including sexual assaults;

• Crimes committed by a person who lacks sufficient ties to 

the tribe, such as living or working on its reservation, or;

• Child abuse or elder abuse that does not involve the 

violation of a protection order.

3.8 Limits on Law Enforcement Officer Authority

While there are some well-defined principles for criminal 

jurisdiction in Indian Country, the principles defining arrest, 

fresh pursuit, and extradition in Indian Country are not settled. 

Legal controversies arising in these areas primarily have been 

resolved at the highest appellate court level of the states, with few 

federal appellate court decisions. Consequently, there are no 

definitive decisions by the United States Supreme Court. The 

principles resulting from lower court decisions are not universal 

and should not be viewed as authoritative except where the 

decision was rendered.
98 Indian Country Criminal Jurisdiction

Likewise, tribal officers must know their agencies’ policies and 

practices, statutory authority, and case law concerning subjects 

like fresh pursuit and extradition—especially when crosscommissioned or when operating under the authority of a Special 

Law Enforcement Commission from the Bureau of Indian Affairs.

Officers should be familiar with the tribal or state statutes 

defining the authority for fresh pursuit: some jurisdictions limit 

fresh pursuit to felonies, while some jurisdictions allow fresh 

pursuit for all crimes. Courts have reached varying conclusions 

about the authority of state law enforcement officers to make 

arrests in Indian Country, especially when there is fresh pursuit 

of Indian suspects onto the reservation for off-reservation 

criminal activity or when state law enforcement officers seek to 

extradite Indian defendants from Indian Country for an offreservation crime. The courts which have considered these crossjurisdictional issues primarily have considered them in the 

context of the reach of state authority onto reservations.

Normally, a sovereign’s policing and arrest powers follow its 

criminal jurisdiction.71

3.9 Tribal Police Officer Authority/Limits

The 1975 Indian Self-Determination and Education Assistance 

Act, Pub. L. 93-638, gave Indian tribes the authority to contract 

with the Federal government to operate programs, such as law 

enforcement services, serving their tribal members and other 

eligible persons. Tribal operation of a law enforcement program 

under a contract with the Bureau of Indian Affairs under the 

Indian Self-Determination Act does not automatically confer 

Federal law enforcement authority on the officers in departments 

with BIA contracts. Tribal police officers in those police 

departments first must receive a SLEC, as described previously, 
Indian Country Criminal Jurisdiction 99

from the BIA before they can enforce federal law in Indian 

Country.

Tribal police officers commissioned as BIA officers have authority 

to arrest non-Indians for offenses committed against Indians or 

Indian property in Indian Country for violations of the Indian 

Country Crimes Act (18 U.S.C. §1152), or the Assimilative Crimes

Act (18 U.S.C. §13). Tribal police officers commissioned as BIA 

officers also have authority to arrest Indians who commit offenses 

against Indians or non-Indians in Indian Country, under 

authority of the Major Crimes Act or the Indian Country Crimes 

Act.

Due to the U.S. Supreme Court’s decision in Oliphant v. 

Suquamish Indian Tribe, tribes do not have criminal jurisdiction 

to prosecute and punish non-Indians for criminal violations 

committed within the exterior boundaries of the reservation. 

Without a SLEC, tribal police officers still have authority to 

enforce tribal law within the exterior boundaries of the 

reservation but jurisdiction extends only to Indians—tribal 

members and non-members alike—for violations of the tribe’s 

criminal laws.

Even so, a tribe’s sovereignty includes the “undisputed power to 

exclude persons whom [it] deems undesirable” from its 

territory,72 thus tribal officers without a SLEC may detain a nonIndian suspected of committing state or federal offenses within 

the exterior boundaries of the reservation and then eject that 

offender or turn the non-Indian offender over to the authority 

with jurisdiction to prosecute.73

After the Oliphant decision, tribes “likely retain the right to arrest 

non-Indians for state and federal offenses.”74 In a case of 

possession of a deadly weapon in violation of state law, an 

Arizona appellate court did not address the question of whether 
100 Indian Country Criminal Jurisdiction

the arrest of a non-Indian by tribal law enforcement officers for 

the violation of state law was an illegal arrest,75 and the question 

has still not been directly addressed by other courts.

It is clear, however, that tribal police have authority—incident to 

the tribe’s power to exclude—to investigate on-reservation 

violations of state and federal law.76

Thus, tribal police have “authority to conduct a proper and 

thorough investigation, to gather the evidence necessary for a 

successful prosecution” or prepare a case and evidence for 

transfer to the jurisdiction with authority to prosecute the nonIndian.77

Courts have also recognized the inherent authority of tribal police 

officers to detain a non-Indian driving a motor vehicle on a public 

road within the reservation until the offender could be turned 

over to state authorities for charging and prosecution when the 

driver was alleged to have violated both state and tribal law.78

3.10 BIA Officer Authority/Limits

The statutory authority for Bureau of Indian Affairs uniform 

police and criminal investigators is found in the Indian Law 

Enforcement Reform Act, 25 U.S.C. §§ 2801-2809. BIA officers 

enforce federal criminal statutes applicable in Indian Country 

including liquor laws and certain laws regarding hunting, 

trapping, fishing, and trespass on Indian lands.

On many reservations, BIA officers provide public safety in place 

of a tribal police department; these officers enforce both federal 

and tribal law, if the tribe has requested enforcement of tribal 

laws. The tribe and the Bureau of Indian Affairs, through the 

Office of Law Enforcement Services, must enter into a formal 

agreement79 before the BIA officers are deputized by the tribe; 
Indian Country Criminal Jurisdiction 101

BIA enforcement of tribal law is possible only through a crossdeputation agreement with the tribe.

3.11 State, County, Local Officer Authority/Limits

State police, county sheriffs, and other similar state and local 

personnel, have authority to arrest non-Indians who commit 

crimes against non-Indians, or who commit victimless crimes on 

the reservation. State law enforcement officers have the same 

criminal jurisdiction over offenses committed by Indians off the 

reservation as other non-Indian offenders committing offenses 

within the state.

State police officers who stop a speeder passing through Indian 

Country on a state highway have no authority to arrest the 

speeding driver if he or she is Indian. However, the Ninth Circuit 

has held that a deputy had authority to conduct an investigatory 

stop of an offending vehicle on a state highway in Indian Country 

to determine whether he had authority to arrest the driver.80

The general rule is that states have no jurisdiction over Indians 

in Indian Country unless there is a grant of jurisdiction pursuant 

to federal law. In Nevada v. Hicks, 121 S.Ct. 2304 (2001), the 

court ruled that state officers who execute a state search warrant 

in Indian Country for evidence of a state crime committed off the 

reservation and allegedly violate civil rights are not subject to suit 

in tribal court for those violations, but may be sued in federal 

court. In other words, if an Indian who is the subject of the state 

officer’s investigation alleges that the officer violated civil rights 

or committed a tort while executing the state search warrant, the 

Indian plaintiff may sue the officer either in state or federal court, 

but may not bring suit in tribal court. 

While the Supreme Court held that state officers have jurisdiction 

to execute state search warrants in Indian Country concerning 
102 Indian Country Criminal Jurisdiction

crimes committed off the reservation, the best practice is for a 

state officer to “domesticate” state search warrants by seeking 

approval for the warrant through the tribal courts, then to 

coordinate execution of the state warrant with the tribal police in 

the interest of maintaining cooperative, effective, and efficient 

working relationships between law enforcement departments, 

and in the interest of public safety across jurisdictional 

boundaries.

3.12 Limits on Fresh Pursuit into Indian Country

Fresh pursuit raises cross-jurisdictional concerns which, under 

most circumstances, are addressed by bright-line rules. 

However, when the pursuit crosses from state jurisdiction to 

Indian Country, matters become complex. There has been no 

definitive decision from the U.S. Supreme Court on fresh pursuit 

involving Indian Country. Fresh pursuit is a common law 

doctrine which allows an officer to pursue a suspected felon into 

another city or county and arrest him or her there, with or 

without a warrant.81 Fresh pursuit of a misdemeanant cannot 

cross the jurisdictional line, unless a statute authorizes such 

pursuits. State law generally governs fresh pursuit across state 

lines. In order for the fresh pursuit doctrine to apply, the pursuit 

must be fresh, continuous, and uninterrupted. For fresh pursuit 

into Indian Country, most courts have strained the principles of 

fresh pursuit to validate state authority in Indian Country.

In these state courts’ decisions, it is clear that neither the 

common law doctrine of fresh pursuit nor the state’s statute on 

fresh pursuit constrained the court. Most state courts which 

considered the issue validated an arrest following fresh pursuit, 

despite courts’ varying acknowledgement that the state officer 

lacked statutory authority, that the defendant was pursued for a 

misdemeanor offense, or even that the arrest following fresh 

pursuit violated the defendant’s Fourth Amendment rights. 
Indian Country Criminal Jurisdiction 103

While some of the courts considered the impact on and invasion 

of tribal sovereignty by the state’s fresh pursuit onto the 

reservation, they nevertheless concluded that there was no 

impact on tribal sovereignty. 

Officers should keep in mind that the state court decisions 

discussed below are binding only within that state. However, one 

state court’s decisions can be used to influence how a different 

state’s court will rule when faced with a similar issue.

In State v. Spotted Horse,82 the Supreme Court of South Dakota 

upheld the arrest and conviction of a member of the Standing 

Rock Sioux tribe for failure to display current registration, but 

reversed the conviction for driving under the influence. Upon 

observing that Spotted Horse, the defendant, was not displaying

a valid license plate sticker, a Mobridge city police officer 

attempted to stop the vehicle within the municipal boundaries. 

Spotted Horse did not stop, but drove onto the Standing Rock 

Sioux reservation, with the officer giving chase at speeds between 

90 to 109 miles per hour. The chase ended on Spotted Horse’s 

private driveway, where the officer struck him with a nightstick 

several times, hitting him on the head and cheek. Spotted Horse 

was arrested and taken back to the city of Mobridge, where he 

was charged with, among others, driving under the influence and 

failure to display current registration.

The South Dakota Supreme Court found that the state did not 

have Public Law 280 jurisdiction over the reservation and that 

the state could not exert partial jurisdiction over the state 

highways running through the reservations. Therefore, the court 

found that South Dakota’s fresh pursuit statute did not extend 

to the reservation. Despite these findings, and its explicit finding 

that Spotted Horse’s arrest violated his Fourth Amendment 

rights, the court upheld his conviction on the misdemeanor 

offense of failing to display current registration. The court 
104 Indian Country Criminal Jurisdiction

sustained this conviction because it had occurred off the 

reservation, the officer had independent evidence of the violation 

through his observation before the illegal arrest, and an illegal 

arrest does not preclude prosecution.

The court reversed the conviction for driving under the influence 

because the seizure (arrest) of Spotted Horse violated his Fourth 

Amendment rights. Because the arrest was unconstitutional, the 

trial court should have suppressed the evidence obtained as a 

result of that arrest (blood alcohol content), used to convict 

Spotted Horse on the DUI offense. 

In State v. Lupe,83 the Arizona Court of Appeals upheld an onreservation arrest of an Indian by a state law enforcement officer 

for an off-reservation offense, following fresh pursuit onto the 

White Mountain Apache reservation. In this case, the officer had 

observed a vehicle speeding and driving recklessly, outside the 

reservation boundaries. The officer turned on his overhead lights, 

following the vehicle on to the reservation, where the car stopped. 

The driver, John Lupe, was arrested for driving while intoxicated 

when his driver’s license was suspended, revoked or refused. 

Lupe was convicted and appealed on the theory that the state 

had no jurisdiction over him.

The court held that arrest of a tribal member made on the 

reservation, following close pursuit that began on state land, does 

not interfere with tribal sovereignty where no extradition 

agreement exists. In reaching this conclusion, the court 

supported its holding on public policy grounds that the state had 

a “particularly strong policy interest in not allowing suspects to 

narrowly escape arrest and avoid [the] State’s jurisdiction over 

offenses committed within this State by fleeing across the border 

to another jurisdiction.” In support of its conclusion that tribal 

sovereignty was not infringed, the appellate court noted that the 

tribe and the state had no extradition agreement, and the tribe 
Indian Country Criminal Jurisdiction 105

had not enacted laws regarding the state’s authority to arrest 

following hot pursuit.

In State v. Littlewind,84 the Supreme Court of North Dakota held 

that a BIA officer’s fresh pursuit that resulted in an offreservation arrest of an Indian defendant, for an offense 

committed on the reservation, was legal. The court characterized 

the BIA officer’s arrest as a valid citizen’s arrest. 

The BIA officer was patrolling on the Fort Totten reservation when 

he received a dispatch about a possible drunken driver. The 

officer located the vehicle driven by Dallas Littlewind and 

observed it weaving several times over the centerline. He 

activated his lights on his marked patrol car and pursued 

Littlewind for two or three miles until he pulled over in Ramsey 

County, outside of the reservation boundaries. The BIA officer 

subdued, frisked, handcuffed, and placed Littlewind in his car 

until a state highway patrol officer arrived. The state patrol officer 

arrested Littlewind and took him into custody and he was later 

tested with an intoxilyzer and videotaped. Littlewind was charged 

with and convicted of his fifth DUI offense.

Littlewind challenged his conviction, alleging that his arrest by 

the BIA officer off the reservation was illegal because he had no 

statutory authority to act as a Ramsey County police officer, nor 

was he cross-deputized. Therefore, the evidence obtained as a 

result of the illegal arrest should have been suppressed. The 

court acknowledged the general rule that an officer acting outside 

his jurisdiction has no official power to arrest, but a police officer 

has the same power to arrest as a private citizen. 

However, in a footnote, the court noted that a citizen’s authority 

to make a warrantless arrest for a misdemeanor is more limited 

than a police officer’s authority. A citizen may arrest only when 

the misdemeanor is actually committed or attempted in his 
106 Indian Country Criminal Jurisdiction

presence. Because the defendant had not raised the issue 

whether a private citizen could have stopped or arrested him 

under the circumstances, the court did not address that issue.

3.13 Limits on Extradition from Indian Country

Extradition is the formal surrender by one jurisdiction (the 

asylum jurisdiction) to another jurisdiction (the demanding 

jurisdiction) when an individual is accused or convicted of an 

offense in the jurisdiction which is demanding the surrender. 

Extradition normally is based upon a reciprocal agreement. 

Within the United States, states have Constitutional and 

statutory extradition duties to their sister states. There are also 

extradition duties between state and federal authorities,85 but 

Constitutional extradition duties are not imposed on tribal 

governments because tribes are sovereigns which preceded the 

U.S. Constitution.

Therefore, the law concerning extradition will vary from tribe to 

tribe, and state to state. There may be several reasons that law 

enforcement officers may attempt to remove an Indian defendant 

from a reservation to face charges elsewhere—such as when an 

officer pursues an Indian subject onto a reservation and makes 

an arrest for an off-reservation offense—but removing a 

defendant from a reservation is extradition regardless of cause.

Several decisions by courts have invalidated arrests of Indians on 

the reservation by state law enforcement officers who bypassed 

the tribal extradition statutes; other courts have refused to adopt 

this view, instead holding that the state court was not deprived 

of jurisdiction by virtue of the illegal arrest.

In Merrill v. Turtle,86 a Cheyenne tribal member lived on the 

Navajo reservation with his Navajo spouse and was wanted in 

Oklahoma for second-degree forgery (a felony). 
Indian Country Criminal Jurisdiction 107

Oklahoma applied for an extradition warrant through Arizona’s 

governor, who issued a warrant pursuant to Arizona law; the 

extradition warrant violated the tribe’s own extradition laws.

State law enforcement officers executed the Arizona warrant on 

the Navajo reservation and arrested Turtle, who then filed a writ 

of habeas corpus after he was turned over to Oklahoma 

authorities. The rule following Turtle is that a tribe’s extradition 

statute must be followed if the state wants to arrest the Indian 

on the reservation for purposes of having that Indian answer to 

charges for crimes committed off the reservation.

The New Mexico Supreme Court has adopted the Turtle rule, 

holding that an arrest by a city police officer of an Indian on the 

reservation for a misdemeanor was illegal and prosecution by the 

municipality was barred.87 While in the city limits of Farmington, 

police officers attempted to stop a Navajo defendant for allegedly 

committing misdemeanors in their presence. The defendant 

eluded the officers and drove to the Navajo reservation where the 

officers apprehended him. He was returned to Farmington where 

he was jailed and charged in state court with DUI, driving 

recklessly, and causing an accident involving property damage. 

The New Mexico Supreme Court specifically ruled that Benally’s 

arrest was illegal “as it violated the sovereignty of the Navajo 

tribe” by circumventing the tribe’s extradition procedure. Control 

over the extradition process is inherent in the tribe’s sovereignty. 

The New Mexico Supreme Court also held that Benally’s illegal 

arrest deprived the municipal court of jurisdiction. Therefore, it 

prohibited the municipal court from proceeding further until 

Benally was legally arrested, through the tribe’s extradition 

process or other legal means. Other courts have also held fresh 

pursuit and arrest of an Indian on a reservation requires 

following extradition procedures,88 regardless of whether the 

driver leads officers on a high-speed chase three miles inside the 

reservation boundaries. 
108 Indian Country Criminal Jurisdiction

Extradition procedures cannot be ignored, even if the crime is a 

serious felony with an urgent need to preserve evidence.89 Two 

sheriff’s deputies went onto the Navajo reservation to locate a 

suspect in a murder case and requested assistance from tribal 

police in executing a state warrant. Tribal police told the deputies 

that it would be several hours before tribal police could assist 

them, so the sheriff’s deputies went to the defendant’s house and 

arrested him. The court held that officers had no good faith basis 

for believing that they had authority to arrest the defendant 

without going through the extradition proceeding and excluded 

evidence obtained during the arrest. Exclusion was the 

appropriate remedy—even if there were no constitutional 

violation—to deter officers’ misconduct. 

Contrary to the Turtle-Benally line of cases, the Supreme Court 

of North Dakota held that the on-reservation arrest of an Indian, 

by a deputy sheriff without a warrant, was legal even though the 

tribe had an extradition ordinance and no extradition hearing 

was held by the tribal court. 90 The North Dakota Supreme Court 

acknowledged that the state had no criminal jurisdiction over the 

reservation because the state had never assumed jurisdiction 

under Public Law 280. The court also recognized the tribe’s 

authority to enact procedures for the “orderly extradition to state 

authorities of tribal members suspected of violating state law.” 

Nonetheless, the court held that the state could exercise 

jurisdiction and did not resolve the issue of whether the state 

officials’ arrest or extradition of Davis was lawful. Following this 

decision, Davis petitioned the federal district court for a pretrial 

writ of habeas corpus, which was denied. He pursued an appeal 

of this denial to the Eighth Circuit. 

The Eighth Circuit distinguished the case from Turtle because 

Davis was already in custody, neither Davis’ rights nor tribal 
Indian Country Criminal Jurisdiction 109

sovereignty were interests great enough to stop a pending state 

criminal prosecution “in which Davis’ rights may be recognized,” 

and no federal policy, treaty, statute, or court decision existed to 

indicate that the state lost personal jurisdiction as a result of the 

extradition violation. Had the federal court been presented with 

a “claim filed to protect the extradition process prior to surrender 

of the...petitioner to the demanding state,” the Eighth Circuit 

may have exercised federal jurisdiction based on considerations 

of tribal sovereignty.91

3.14 Step-by-Step Jurisdictional Analysis

At the outset of any investigation in Indian Country, it may not 

be immediately apparent which sovereign has jurisdiction.92 A 

step-by-step analysis to criminal jurisdiction in Indian Country 

is recommended. The application of this analysis applies only to 

federal criminal laws dealing specifically with Indians and Indian 

Country, and not to federal laws of general applicability 

nationwide. 

Until the status of the defendant, victim, and land is definite, as 

well as the type of the crime, no determination about whether the 

offense will be prosecuted in tribal, federal, or state court can be 

made:

• Where was the crime committed? 

• Was the site of the crime in Indian Country? 

If the crime did not occur in Indian Country, the states have 

exclusive jurisdiction. The tribal and federal courts have no 

jurisdiction. If the crime occurred in Indian Country, continue 

the analysis:
110 Indian Country Criminal Jurisdiction

• Does Public Law 280 or a Specific Jurisdictional Statute Apply?

Congress conferred on some states criminal jurisdiction over 

Indian Country through Public Law 280. Through other 

individual statutes, Congress conferred jurisdiction over all or 

part of Indian country in New York (62 Stat. 1224), Kansas (54 

Stat. 249), and Maine (25 U.S.C. §1725).

Some states have particular types of jurisdiction on specific 

reservations, such as California and the Agua Caliente 

Reservation (63 Stat. 705); North Dakota and the Spirit Lake 

Reservation (60 Stat. 229), although the state has never taken 

formal action to assume jurisdiction; Iowa and the Sac and Fox 

Reservation (62 Stat. 1161). There are also special jurisdictional 

statutes dealing with Oklahoma.

Under some of the specific statutes, tribes have concurrent 

criminal jurisdiction. The concurrent jurisdiction of tribes under 

Public Law 280 has not been conclusively litigated, but there is 

legal authority that supports concurrent tribal jurisdiction, even 

in Public Law 280 states. If Public Law 280 or one of the special 

jurisdictional statutes apply, state courts have jurisdiction and 

federal courts have no jurisdiction, unless the statute so 

provides. If the crime occurred in Indian Country and neither 

Public Law 280 nor a special jurisdictional statute apply, 

continue the analysis:

• Was the Crime Committed By or Against an Indian?

Because the federal statutory scheme is largely based on the 

whether either defendant and victim is Indian, the next step is to 

determine the status of both defendant and victim. If the crime 

occurred in Indian Country and Public Law 280 does not apply, 

the defendant and victim should be categorized:
Indian Country Criminal Jurisdiction 111

• Which Defendant-Victim Category Applies?

• Indian against an Indian?

• Indian against a non-Indian?

• Non-Indian against an Indian?

• Non-Indian against a non-Indian?

• “Victimless” and “consensual” crimes by an Indian?

• “Victimless” and “consensual” crimes by a non-Indian?

Once the status of the defendant and victim have been 

established, continue the analysis by determining the type of 

crime:

• Is the crime one of the major felonies?

Any 109A felony (sexual crimes)............18 U.S.C. §§ 2241-2245

Arson.................................................................18 U.S.C. § 81

Assault - dangerous weapon.......................18 U.S.C. § 113(a)(3)

Assault - intent to commit murder..............18 U.S.C. § 113(a)(1)

Assault - serious bodily injury....................18 U.S.C. § 113(a)(6)

Assault - under sixteen...................18 U.S.C. §§ 113(a)(5), (a)(7)

Burglary...............................................Defined by state statute

Felony Child Abuse or Neglect................Defined by state statute

Felony Theft (Grand Larceny).............................18 U.S.C. § 661

Incest...................................................Defined by state statute

Kidnapping..............................................18 U.S.C. § 1201(a)(2)

Maiming...........................................................18 U.S.C. § 114

Manslaughter.................................................18 U.S.C. § 1112

Murder...........................................................18 U.S.C. § 1111

Robbery..........................................................18 U.S.C. § 2111

If an Indian has committed one of the crimes listed under the 

Major Crimes Act, then we refer to it as a “major crime.” If, 

however, a non-Indian commits the same crime, e.g. murder, we 

do not refer to the crime as a “major crime.” In other words, only 

Indians can commit “major crimes” under the Act.
112 Indian Country Criminal Jurisdiction

For example, if the facts of the investigation suggest that an 

Indian has committed a simple assault of a non-Indian on a 

reservation, the Indian can be prosecuted under the ICCA in 

federal court, so long as the tribe has not first prosecuted and 

punished the Indian offender.

Consider the analysis:

• Where was the crime committed? 

Reservation.

• Was the site of the crime in Indian Country?

Yes.

• Does Public Law 280 or a Specific Jurisdictional Statute Apply?

No.

• Was the Crime Committed By or Against an Indian?

Yes.

• Which Defendant-Victim Category Applies?

• Indian against an Indian?

No.

• Indian against a non-Indian?

Yes.

• Non-Indian against an Indian?

No.

• Non-Indian against a non-Indian?

No.

• “Victimless” and “consensual” crimes by an Indian?

No.

• “Victimless” and “consensual” crimes by a non-Indian?

No.

• Is the crime one of the major felonies?

No.

• If the tribe can prosecute and punish the Indian offender, have 

they done so?

No.
Indian Country Criminal Jurisdiction 113

As another example, an Indian burglarizes a non-Indian’s 

residence on the reservation. Based on these facts, the federal 

court would have jurisdiction under the Major Crimes Act

because the offender is Indian, the crime occurred in Indian 

Country, it is one of the Major Crimes, and the status of the 

victim does not matter.

Consider the analysis:

• Where was the crime committed? 

Reservation.

• Was the site of the crime in Indian Country?

Yes.

• Does Public Law 280 or a Specific Jurisdictional Statute Apply?

No.

• Was the Crime Committed By or Against an Indian?

Yes.

• Which Defendant-Victim Category Applies?

• Indian against an Indian?

No.

• Indian against a non-Indian?

Yes.

• Non-Indian against an Indian?

No.

• Non-Indian against a non-Indian?

No.

• “Victimless” and “consensual” crimes by an Indian?

No.

• “Victimless” and “consensual” crimes by a non-Indian?

No.

• Is the crime one of the major felonies?

Yes.

• If the tribe can prosecute and punish the Indian offender, have 

they done so?

Tribes cannot prosecute in this instance.
114 Indian Country Criminal Jurisdiction

3.15 Need for Cross-Deputization

With scarce resources and a compelling need for public safety 

over vast geographical areas, federal, tribal, and state law 

enforcement should consider cross-deputization agreements:

“A...satisfactory solution to [Indian Country jurisdictional] 

problems is for the tribal and state officers to cross-deputize, 

so that each is empowered to arrest for the other 

government. The tribal police officer then can arrest a nonIndian who commits a crime against a non-Indian and may 

take him or her to state court, because the tribal officer is 

acting in the capacity of a deputy of the state. The same 

advantages apply in reverse for the state police officer, who 

can arrest Indians on behalf of the tribe.”93

Tribal and state law enforcement officers can seek crossdeputation from the Bureau of Indian Affairs, provided their 

respective agencies have entered into a Deputation Agreement 

with the BIA Office of Law Enforcement Services.94 Tribal or state 

agencies seeking such deputation are encouraged to discuss the 

benefits and requirements of Special Law Enforcement 

Commission (SLEC) with the BIA District Commander in the 

relevant Office of Law Enforcement Services District; graduates 

of the Indian Police Academy may be eligible for a SLEC up to 

three years following graduation at the FLETC.

A compelling reason for states to consider seeking out an 

agreement with tribal police departments is that warrantless 

arrests executed outside of the arresting officer’s jurisdiction is 

analogous to a warrantless arrest without probable cause.95

Thus, arrests in Indian Country following fresh pursuit or 

violation of tribal extradition statutes may be illegal and state 

officers may be sued for damages under 42 U.S.C. § 1983 for an 
Indian Country Criminal Jurisdiction 115

unconstitutional seizure without appropriate federal or tribal 

authority if they arrest an Indian defendant in Indian Country 

without a cross-deputization agreement.

3.16 Courts of Indian Offenses (C.F.R. Courts)

When tribal courts have not yet been established to exercise the 

particular tribes’ jurisdiction over Indians, the Secretary of 

Interior is authorized to promulgate a law and order code and to 

establish courts. Courts of Indian Offenses exist throughout the 

U.S. under the Code of Federal Regulations (CFR), providing the 

commonly used name — the “CFR Court.” Until such time as a 

particular Indian tribe establishes their own tribal court, the 

Court of Indian Offenses will act as a tribe’s judicial system.

The CFR Court is a trial court and parties present their cases 

before a Magistrate. Tribal constitutions and the Indian Civil 

Rights Act (ICRA) form the basis of due process; persons 

appearing in the court for criminal matters are entitled to a trial 

by jury. The CFR Court hears many different types of civil cases, 

including cases arising in Indian Country where tribal members 

are defendants and non-Indians are plaintiffs. Cases involving 

non-Indians or non-tribal member defendants are also permitted 

by consent of the defendant to the personal jurisdiction of the 

court. The civil matters heard in the court include divorce, 

guardianship, custody, child support, determination of paternity, 

name change, business contracts, personal injury, probate of 

non-trust property, in addition to other civil disputes.

Criminal cases that can be heard in CFR court include 

misdemeanor cases involving Indians that occur within tribal 

jurisdiction; recall that felonies involving Indians within Indian 

Country that are federal crimes must be heard in Federal court 

and that criminal cases involving non-Indians in Indian Country 

are usually brought in state court. Criminal punishments may 
116 Indian Country Criminal Jurisdiction

include imprisonment, the payment of court costs and fines, or 

both. The original Court of Indian Offenses was created in 1886 

to provide law enforcement for the Kiowa, Comanche, and Apache 

(KCA) reservation. Several prominent tribal leaders served as 

judges of the court, including Quanah Parker (Comanche), Lone 

Wolf (Kiowa) and several others. 

A prosecutor acts on behalf of the tribes to enforce criminal laws 

and are licensed attorneys hired by contract. Criminal offenses, 

contained within the federal regulations (25 CFR Part 11), 

provides the offenses that are applicable in the court. Unlike 

tribal courts that have not yet adopted the provisions of the Tribal 

Law and Order Act, defendants in criminal or child welfare cases 

(involving the termination of parental rights) who cannot afford 

an attorney may apply to the court to have the public defender 

appointed to assist in their defense.

Parties have a right to appeal their cases to the Court of Indian 

Appeals if they believe that one of the judges of the CFR Court 

has committed an error. Defendants also can apply for relief, 

such as a writ of habeas corpus, through the Court of Indian 

Appeals.

The Court of Indian Appeals consists of three judges who review 

the action of the trial court to determine if the decision made 

should be upheld or overturned. Unlike the trial, decisions of the 

Court of Indian Appeals are made primarily by reviewing the 

written briefs and court record of the trial court. Generally, a 

party is limited to discuss issues and evidence presented to the 

trial court, and cannot submit additional evidence or legal 

arguments on appeal.
1 See STEPHAN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES, 1 

(2004).

2 See SHARON O’BRIEN, AMERICAN INDIAN TRIBAL GOVERNMENTS 14-

15 (1989).

3 See Duro v. Reina, 495 U.S. 676, 680 n.1 (1990).

4 Worcester v. Georgia, 31 U.S.515, 559 (1832).

5 See Tee-Hit-Ton Indians v. U.S., 348 U.S. 272, 279 (1955); see 

also Johnson v. McIntosh, 21 U.S. 542 (1823).

6 See County of Yakima v. Confederated Tribes of Yakima Indian 

Nation, 502 U.S. 251, 257 (1994); Morton v. Mancari, 417 U.S. 

535, 551 (1974).

7 U.S. v. Sandoval, 231 U.S. 28 (1913); South Dakota v. Yankton 

Sioux Tribe, 522 U.S. 329, 343 (1993). See also Santa Clara 

Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

8 See Deleware Tribal Business Committee v. Weeks, 430 U.S. 73, 

84 (1977), citing U.S. v. Tillamooks, 329 U.S. 40, 54 (1946).

9 See LaPier v. McCormick, 986 F.2d 303, 305 (9th Cir. 

1993)(member of the Little Shell Band of Landless Chippewa 

Indians, which was not federally acknowledged tribe of Indians, 

was not an Indian for purposes of federal criminal jurisdiction); 

see also State v. Sebastian, 234 Conn. 115, 701 A.2d 13 (1997), 

cert. denied, 118 S.Ct. 856 (1998) (member of Paucatuck Eastern 

Pequot Tribe, a tribe not acknowledged by federal government, 

but whose application for acknowledgement is pending with BIA, 

is not an Indian, therefore state had jurisdiction to prosecute 

him).

10 See United States v. Rogers, 45 U.S. 567, 572-73 (1846) (a 

white man adopted by a tribe was not an Indian for purposes of 

a federal criminal statute). See e.g. United States v. Keys, 103 

F.3d 758 (9th Cir. 1996); United States v. Torres, 733 F.2d 449, 

456 (7th Cir.), cert. denied, 469 U.S. 864 (1984); United States v. 

Broncheau, 597 F.2d 1260, 1263 (9th Cir.), cert. denied, 444 U.S. 

859 (1979); United States v. Dodge, 538 F. 2d 770, 786 (8th Cir. 

1976), cert. denied, 429 U.S. 1099 (1977).

11 See United States v. Broncheau, 597 F. 2d 1260 (9th Cir.), cert. 

denied, 444 U.S. 859 (1979); United States v. Keys, 103 F. 3d 

758, 761 (9th Cir. 1996). But see United States v. Lawrence, 51 

F.3d 150 (8th Cir. 1995).

 
 12 See, e.g., Menominee Tribe v. United States, 391 U.S. 404 

(1968); Hackford v. Babbitt, 14 F.3d 

13 See St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 

1988).

14 See United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) 

(Court had to determine whether a victim was an Indian for 

purposes of federal criminal jurisdiction under the Indian 

Country Crimes Act, 18 U.S.C. § 1152. Child-victim, who was 

one-fourth Indian blood quantum and was eligible for enrollment 

but not enrolled, and was treated as Indian by both the tribe and 

her parents, was an Indian for purposes of prosecuting the 

defendant under § 1152).

15 See United States v. Heath, 509 F.2d 16 (9th Cir. 1974) (“While 

anthropologically a Klamath Indian even after the Termination 

Act obviously remains an Indian, his unique status vis-à-vis the 

Federal Government no longer exists”).

16 See United States v. Nazarenus, 983 F.2d 1480 (8th Cir. 1998) 

(federal jurisdiction found where defendant stipulated that the 

location identified in the indictment is Indian Country).

17 See 18 U.S.C. §1151 (a). 18 See FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 36 (1982).

19 See WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 

THIRD EDITION 114 (1998).

20 For example, in Hagen v. Utah, 510 U.S. 399 (1994), an Indian 

was charged and convicted by the state of Utah for distributing a 

controlled substance in the town of Myton, Utah. The town of 

Myton lies within the original boundaries of the Uintah 

Reservation, which was opened to settlement by non-Indians in 

1905 and thus has disestablished areas. The Supreme Court 

held the reservation boundaries were diminished by opening it to 

non-Indians for settlement, the portion of the Uintah Reservation 

which included Myton had been disestablished, the 

disestablished reservation was no longer Indian Country, and as 

a result, the federal government had no criminal jurisdiction over 

the defendant.

21 231 U.S. 28 (1913).

22 See GETCHES, WILKINSON & WILLIAMS, FEDERAL INDIAN LAW, 4TH

EDITION 441 (1998); see also Robert N. Clinton, Criminal 

Jurisdiction Over Indian Lands: A Journey Through A 

Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976).
 23 118 S.Ct. 948 (1998).

24 See United States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 

1992), cert. denied, 506 U.S. 1056 (1993).

25 Oklahoma Tax Commission v. Potawatomi Tribe, 498 U.S. 505 

(1991). The Supreme Court determined that trust land at issue 

was “validly set apart” and thus qualified as a reservation for 

purposes of tribal sovereign immunity, even though the land was 

used to sell cigarettes to non-tribal members. Also, in CheyenneArapaho Tribes v. Oklahoma, 618 F.2d 665 (10th Cir. 1980), the 

Tenth Circuit held that tribal trust land was a “reservation” 

within the meaning of 18 U.S.C. §1151(a), and in Ross v. Neff, 

905 F.2d 1349 (10th Cir. 1990), the Tenth Circuit held a deputy 

sheriff had no jurisdiction to arrest an Indian on land they 

determined to be tribal trust land located within an Oklahoma 

county was Indian Country (under 18 U.S.C. § 1151).

26 185 F.3d 1125 (10th Cir.), cert. denied, 120 S.Ct. 1960 (2000).

27 See Draper v. United States, 164 U.S. 240 (1896); see also New 

York ex rel. Ray v. Martin, 326 U.S. 496 (1946).

28 Although the Tribal Law and Order Act of 2010 has increased 

the tribe’s jurisdiction many tribe’s to date have not adopted the 

provisions that would allow increased punishment.

29 See Christopher B. Chaney, The Effect of the United States 

Supreme Court’s Decisions During the Last Quarter of the 

Nineteenth Century on Tribal Criminal Jurisdiction, 14 B.Y.U. J. 

Pub. Law 173, 181 (2000).

30 See United States v. Long Elk, 805 F.2d 826 (8th Cir. 1986).

31 See United States v. Narcia, 776 F. Supp. 491 (D. Ariz. 1991).

32 See Canby, at 146.

33 See Williams v. United States, 327 U.S. 711 (1946). 

34 See e.g. Quechan Indian Tribe v. McMullen, 984 F.2d 304 (9th

Cir. 1993) (illegal fireworks); see also United States v. Sosseur, 

181 F.2d 873 (7th Cir. 1950).

35 See United States v. McBratney, 104 U.S. 621 (1881); Oliphant

v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Solem v. Bartlett, 

465 U.S. 463, 465 n.2 (1984).

36 Minnesota v. Stone, 572 N.W. 2d 725, 729, fn. 3 (Minn. 1997) 

citing ACT OF MAY 23, 1973, CH. 625, 1973 MINN. LAWS 1500. 37 See Judith V. Royster & Rory SnowArrow Fausett, Fresh 

Pursuit Onto Native American Reservations: State Rights ‘To 
 

Pursue Savage Hostile Indian Marauders Across the Border,’ 59 

U.Colo.L.Rev. 191 Fn. 44 (1988).

38 See 25 U.S.C. §§ 1301, et seq.

39 See Canby, at 236.

40 See RALPH W. JOHNSON AND RACHAEL PASCHAL, ED., TRIBAL COURT 

HANDBOOK FOR THE 26 FEDERALLY RECOGNIZED TRIBES IN 

WASHINGTON STATE – SECOND EDITION 10 (1992).

41 See Washington v. Burdman, 525 P.2d 217 (1974) (Washington 

Supreme Court interpreted RCW 37.12.010, specifying these 

eight categories, to apply to all tribes, including Quinault Tribe, 

regardless of whether the tribe gave consent to state’s 

assumption of jurisdiction).

42 See 65 Fed. Reg. 75948 (2000).

43 See 54 Fed. Reg. 19959 (1989).

44 See 52 Fed. Reg. 8372 (1987).

45 See United States v. Lawrence, 595 F.2d 1149, 1151 (9th Cir. 

1979).

46 See Canby, at 220; see also United States v. High Elk, 902 F.2d 

660 (8th Cir. 1990); Cf. Negonsett v. Samuels, 507 U.S. 99 (1993); 

United States v. Cook, 922 F.2d 1020 (2d Cir.), cert. denied, 500 

U.S. 941 (1991).

47 Cf. Negonsett, 507 U.S. at 105; see also State v. Hoffman, 804 

P.2d 577, 586 (1991).

48 See Cohen, at 344-345; see also Canby, at 220-221.

49 See 18 U.S.C. § 1163 (b). 50 See 25 U.S.C. § 232; see also Cohen, at 372-376.

51 See Cohen, at 176 fn. 256

52 See Negonsett v. Samuels, 507 U.S. 99 (1993); see also United 

States v. Cook, 922 F.2d 1026, 1033 (2d Cir.), cert. denied, sub 

nom. Tarbell v. United States, 500 U.S. 941 (1991).

53 See Cohen, 176 fn. 256; 372.

54 See Cohen, at 374.

55 See Negonsett v. Samuels, 507 U.S. 99 (1993); see also United 

States v. Cook, 922 F.2d 1026, 1033 (2d Cir.), cert. denied, sub 

nom. Tarbell v. United States, 500 U.S. 941 (1991).

56 See VERONICA E. VELARDE TILLER, ED., TILLER’S GUIDE TO INDIAN 

COUNTRY: ECONOMIC PROFILES OF AMERICAN INDIAN RESERVATIONS 

343-347 (1996).

57 See Cohen, Id.

58 See Cohen, at 373-374; fn. 229-230.
 59 See Ysleta del Sur Pueblo and Alabama and Coushatta Indian 

Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat. 666 

(1987).

60 See 25 U.S.C. § 1755. 61 See 25 U.S.C. §1775d (a). 62 See 25 U.S.C. §1775d(b)(1). 63 See 25 U.S.C. §1775d (b)(2). 64 See Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995).

65 435 U.S. 313 (1978).

66 552 P.2d 1394, appeal dismissed, 492 U.S. 1030 (1976).

67 590 P.2d 913 (1979).

68 435 U.S. 191 (1978).

69 495 U.S. 676 (1990).

70 United States v. Wheeler, 435 U.S. 313, 326 (1978).

71 See Canby, at 169.

72 Duro v. Reina, 495 U.S. 676, 697 (1990).

73 See Duro, at 695.

74 Ortiz-Barraza v.United States, 512 F.2d 1176 (9th Cir. 1975).

75 See State v. Burrola, 669 P.2d 614 (Ariz. Ct. App. 1983).

76 See Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 

1975). 

77 State v. Haskins, 887 P.2d 1189, 1195-1196 (1994). 

78 See State v. Schmuck, 850 P.2d 1332, cert. denied, 510 U.S. 

931 (1993).

79 See 25 U.S.C. § 2802 (c) (1).

80 See United States v. Patch, 114 F.3d 131 (9th Cir.), cert. denied, 

118 S.Ct. 445 (1997). 

81 See JOHN WESLEY HALL, JR., SEARCH AND SEIZURE §22:5 (1993). 

82 462 N.W.2d 463 (1990), cert. denied, 500 U.S. 928 (1991).

83 889 P.2d 4 (Ariz.Ct.App. 1994).

84 417 N.W.2d 361, 363 (1987).

85 See U.S. CONST., ART. IV, SEC. 2, CL. 2; See also 18 U.S.C. §§ 

3182-3183. 86 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003 

(1970)

87 See Benally v. Marcum, 553 P.2d 1270 (1976).

88 See City of Farmington v. Benally, 892 P.2d 629 (N.M. Ct. App. 

1995), cert. denied, 890 P.2d 1321 (1995).

89 See State v. Yazzie, 777 P.2d 916 (N.M.Ct.App. 1989), cert. 

denied, 777 P.2d 1325 (1989).
 90 See Davis v. O’Keefe, 283 N.W. 2d 73 (1979).

91 See Davis v. Muellar, 643 F.2d 521 (8th Cir. 1980), cert. denied, 

454 U.S. 892 (1981).

92 See Getches, at 485-486.

93 Canby, 170.

94 See 1 BUREAU OF INDIAN AFFAIRS, OFFICE OF LAW ENFORCEMENT 

SERVICES, LAW ENFORCEMENT HANDBOOK, Ch. 2, Sec. 4 (2000).

95 See Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990).
Conservation Law 117

Chapter Four

Conservation Law

4.1 Importance of Conservation Law .........................117

4.2 Implied Rights.....................................................118

4.3 Loss of Rights......................................................120

4.4 Indian Canon of Construction..............................121

4.5 Usual and Accustomed Places ..............................124

4.6 Disestablishment, Cession, State Regulation .......126

4.7 Tribal Enforcement .............................................131

4.8 Bald and Golden Eagle Protection Act..................134

4.9 Endangered Species Act ......................................137

4.10 Migratory Bird Treaty Act....................................138

4.11 Lacey Act ............................................................140

4.1 Importance of Conservation Law

American Indians have long recognized the intricate relationship 

and delicate balance between human beings, animals, and 

plants. The ability to harvest plants for nutritional and medicinal 

purposes, to hunt game in order to nourish, clothe, and protect, 

and to harvest fish were critical to the health and well-being of 

traditional societies. With the ever-increasing demands to open 

up aboriginal lands for settlement, tribes recognized the need to 

safeguard their abilities to harvest, hunt, and gather for physical 

sustenance and spiritual preservation. Through treaties and 

agreements tribes had the foresight to preserve their land bases 

and insist upon assurances that culturally significant and lifesustaining relationships with the land, the water, and plant and 

animal-life would remain undisturbed.

Today these centuries-old treaties and agreements, and the hardfought court battles to enforce the rights they guaranteed, have 

proven vitally important in protecting cultural resources and 

religious activities. Treaty rights also have enabled tribes to 
118 Conservation Law

develop economic enterprises and generate revenue through 

commercial and recreational fishing and hunting. 

As a result, Indian nations have developed conservation 

departments with the primary responsibility for conserving and 

managing wildlife through policies and practices that protect 

natural resources – these policies and practices are often 

exercised outside of state supervision or authority. The balance 

between tribes’ direct exercise of treaty rights independent of the 

several states, the federal government’s interest in allowing tribes 

to develop comprehensive wildlife management systems and 

policies independent of the several states, and the states’ interest 

in conservation is constantly reviewed by courts and governed by 

federal statute. For this reason, thorough understanding of 

several important federal statutes that influence the exercise of 

treaty rights and regulation of hunting and fishing in Indian 

Country is essential. 

4.2 Implied Rights

Establishment of a reservation by treaty, statute, or agreement 

includes an implied right to hunt and fish on that reservation free 

of regulation by the state.1 Because these rights are “implied,” 

they need not be expressly mentioned in the treaty, statute, or 

agreement which created the reservation in order for the rights 

to exist. Indians’ implied treaty right to hunt and fish free from 

state law applies on the reservation. Indians are immune from 

state law when exercising hunting or fishing rights on the 

reservation even in Public Law 280 states, where states have 

criminal jurisdiction over Indian Country. 

State jurisdiction over offenses committed in Indian Country is 

addressed by 18 U.S.C. § 1162, and while the statute provides for 

state jurisdiction in certain matters it also precludes states from 

“...depriv[ing] any Indian or any Indian tribe, band, or any right, 
Conservation Law 119

privilege, or immunity afforded under Federal treaty, agreement, 

or statute with respect to hunting, trapping, or fishing or the 

control, licensing, or regulation thereof.” 

In Cheyenne Arapaho Tribes v. Oklahoma,2 the Tenth Circuit 

Court of Appeals held that the hunting and fishing rights of 

Indians on allotments and tribal trust land survive 

disestablishment of an Indian reservation, and are not subject to 

state regulations because the land remains Indian Country.

States have no jurisdiction over Indians in Indian Country unless 

Congress provides for it, and the Assimilative Crimes Act does not 

assimilate state law that is inconsistent with federal policies 

expressed in federal statutes.

Even when Congress gave to certain states criminal jurisdiction 

over Indian Country in Public Law 280, it excepted state criminal 

jurisdiction over hunting and fishing (see above). In addition, 

Congress enacted a federal trespass statute, 18 U.S.C. § 1165, 

which makes hunting and fishing on Indian land without 

permission from the tribe a federal offense. The Court found that 

these actions on the part of Congress evidence Congress’ 

intention to protect Indian hunting and fishing rights from state 

interference and that it would be inconsistent to expressly forbid 

states the right to control Indian hunting and fishing directly but 

subsequently and indirectly give control to the states through the 

Assimilative Crimes Act.

Thus, state law cannot be applied to Indian hunting and fishing 

in Indian Country by way of the Assimilative Crimes Act, because 

assimilation would be inconsistent with federal policies 

expressed in federal statutes.
120 Conservation Law

4.3 Loss of Rights

Treaty rights are property rights protected by the “Just 

Compensation clause” of the Fifth Amendment. Hunting, fishing, 

and gathering rights, when guaranteed by treaty, are treated as 

property rights.3 Treaty rights can be lost, however, either by 

cession or abrogation. 

While most treaty agreements afford Indians the exclusive right 

to hunt and fish on lands reserved to them, these rights can be 

ceded (given up) in a treaty in exchange for other terms. A cession 

often occurs when a tribe grants lands to the United States in 

exchange for compensation from its existing reservation. Unlike 

a reservation that has been disestablished, the reservation 

subject to cession continues to exist but is reduced in terms of 

size and boundaries. Usually, the treaty will include a reservation 

of rights “in common with all other persons.” Rarely will the terms 

of the treaty itself clearly state that the tribe has ceded or 

otherwise given up the right to hunt or fish. If there is no 

reservation of rights and the rights are clearly given up, then 

those rights no longer exist and a tribe cannot sue to enforce or 

recover the ceded rights later. 

Even if a tribe reserved a right in a treaty, Congress can abolish 

the treaty right by passing legislation under certain 

circumstances. This is referred to as abrogation of the treaty right 

(discussed below). Unlike in a cession, abrogation of the treaty 

right by the federal government gives rise to a claim for 

compensation, meaning that the tribe could sue the United 

States to be monetarily compensated for the loss of the right. 

Unless cession or abrogation occurs, implied treaty rights to hunt 

and fish free from state law survive congressional termination of 

the trust relationship between the tribe and the federal 

government. Even if Congress terminates the trust or 

“government-to-government” relationship with a tribe, hunting 
Conservation Law 121

and fishing rights are not extinguished unless there is a clear 

indication of congressional intent to do so when it terminates a 

tribe.4

Such treaty rights have been upheld even for those Indians who 

withdrew from the tribe upon termination of the trust 

relationship or for tribes placed together on a reservation by the 

United States, even when one tribe is placed there in violation of 

treaty with the other tribe.5

4.4 Indian Canon of Construction

During the allotment period, the Supreme Court developed 

special rules of Indian law that contrasted with mainstream law 

to protect the tribes from loss of treaty rights. The “Indian canon 

of construction” used in Indian law requires that “[a] treaty 

must...be construed, not according to the technical meaning of 

its words to learned lawyers, but in the sense in which they would 

naturally be understood by the Indians.”6 The Supreme Court’s 

interpretation of this canon resolves vague or ambiguous

language in a treaty in favor of the way an Indian tribe would 

have understood it, unless the treaty has been abrogated by 

express action of Congress.7

Under the Indian canon of construction, a reviewing court must 

analyze the wording of the treaties, agreements, and enactments, 

the prior history, the surrounding circumstances, and the 

subsequent construction given those documents by the parties 

to determine both the intent of Congress and understanding of 

the Indians.8

The Supreme Court used this canon of construction as early as 

1886 when reviewing treaties between the United States and the 

Choctaw Nation:9
122 Conservation Law

“[W]e have said we will construe a treaty with the Indians 

as ‘that unlettered people’ understood it, and ‘as justice 

and reason demand, in all cases where power is exerted by 

the strong over those to whom they owe care and 

protection,’ and counterpoise the inequality ‘by the 

superior justice which looks only to the substance of the 

right, without regard to technical rules.’”

This language was later used to protect Indian treaty rights 

against private parties when a commercial fishery’s fish wheel 

prevented western tribal members from fishing in treatyprotected areas. Tribal members requested an injunction against 

the commercial fishery based on an ambiguous treaty promise 

made by the United States protecting the rights of tribal members 

related to fishing areas. The Court held that ambiguities in treaty 

language or other points of dispute between the government and 

Indian tribes should be resolved in a manner favorable to the 

understanding that tribes could be presumed to have.

In United States v. Winans,10 the Supreme Court interpreted an 

1859 treaty provision between the Yakima Nation (styled today 

as the Yakama Nation) and the United States which concerned 

the Yakima Indians’ right to fish off the reservation at their “usual 

and accustomed places, in common with citizens of the 

Territory.” 

The relevant portion of the treaty read:11

“The exclusive right of taking fish in all the streams where 

running through or bordering [the reservation established 

by the 1859 Treaty] [which is] secured to said confederated 

tribes...as also the right of taking fish at all usual and 

accustomed places, in common with citizens of the 

territory, and of erecting temporary buildings for curing 
Conservation Law 123

them, together with the privilege of hunting, gathering 

roots and berries...” 

The Yakimas’ ability to access their usual and accustomed sites 

was an issue because Winans, a non-Indian, owned lands 

bordering the Columbia River in the Yakimas’ usual and 

accustomed sites. Winans argued that as fee owner of the lands 

on which the usual and accustomed sites were located, his title 

was absolute and he had the right to exclude the Yakimas from 

the land. Winans also argued the language meant that the 

Yakima Tribe could fish at the usual and accustomed sites just 

as any other citizen of the state, meaning the tribe had no special 

rights on its former reservation lands where the usual and 

accustomed sites were located, and thus no special rights to 

trespass on the land.

The United States, enforcing its treaty obligations with the 

Yakima, countered that the language meant members could fish 

at the usual and accustomed sites even though the sites were 

outside the present reservation boundaries, and they had a right 

to access the sites even if the land was held in fee simple by a 

third party such as Winans.

In interpreting the treaty as the Indians would have understood 

it, the Court stated that while the treaty placed limits on 

aboriginal rights, it did not abolish those rights. The Court 

acknowledged that new conditions (expansion of the United

States) required that Indian rights had to be accommodated. 

Accommodation, not abolition of the Indians’ rights, was 

intended by the treaty. “In other words, the treaty was not a grant 

of rights to the Indians, but a grant of rights from them – a 

reservation of those [rights] not granted.”12 Known as the 

reserved rights doctrine, this means that whatever rights the 

Indians did not cede in the treaty are reserved to the tribe. 
124 Conservation Law

Further, the Court acknowledged the importance of salmon 

fishing to the Yakima way of life. Fishing was so integral to the 

Yakimas, not only for sustenance but to their culture, the Court 

characterized it as “not much less necessary to the existence of 

the Indians as the atmosphere they breathed.”13 Therefore, it was 

unlikely the tribe would understand the terms of the treaty to 

give up such a precious right.

With these ideas in mind, the Court interpreted the treaty 

language at issue to mean that the Yakima Nation had reserved 

to itself the right to fish off the reservation in its usual and 

accustomed places without regulation by the state and had an 

easement over private land in order to exercise their treaty “right 

of taking fish at all usual and accustomed places, in common 

with citizens of the Territory.”14

As to Winans, the Court held that the Yakima Nation’s treaty with 

the United States fixed in the land “such easements as enable

the right to be exercised”15 and allowed for “erecting temporary 

buildings for curing [the fish taken].”16

Winans’ argument that his license from the state of Washington 

to operate a fish wheel gave him the right to prevent Indians from 

fishing on his land—since the state license for a fish wheel 

entitled him to the exclusive possession of the space occupied by 

the wheel—was rejected by the Court, since a license from a state 

could not circumvent a treaty obligation of the United States as 

a superior sovereign.

4.5 Usual and Accustomed Places

As in Winans, there are many instances when tribes retain offreservation treaty fishing rights. Courts have established the 

following principles in relation to off-reservation treaty rights:17
Conservation Law 125

• Indians cannot be barred from their usual and accustomed 

fishing places.

• Indians have an easement over private as well as public land to 

gain access to usual and accustomed areas and fish there.

• Usual and accustomed fishing places may be either on or 

beyond the territory ceded by that tribe in its treaty with the 

United States.

• Their right to fish at those locations is a non-exclusive one that 

must be shared with non-Indians. 

• Indians do not need to purchase state fishing licenses when 

exercising their treaty fishing rights.

• Areas enjoyed in common with non-Indians may be subject to 

state regulations necessary for conservation.

The phrase “usual and accustomed places” has since been 

defined as those sites which one or several different Indian 

nations have used in a “habitual and customary manner” during 

a considerable portion of each year.18

In United States v. Washington,19 the court defined “all usual and 

accustomed grounds and stations” as “every fishing location 

where members of a tribe customarily fished from time to time at 

and before treaty times...is a usual and accustomed ground [a 

large area that may include numerous small fishing sites 

undetermined at the time of treaty] or station [such as fixed 

locations like a fish weir, fishing platform or some other narrowly 

limited area] at which the treaty tribe reserved, and its members 

presently have, the right to take fish.”

Where a treaty reserves the right to fish at “all usual and 

accustomed places,” the state may not preclude access to those 

places, nor may it require a license fee of Indians to fish there.20

Many states enter into compacts to ensure these rights are 

protected; for example, the Cherokee Nation and the State of 
126 Conservation Law

Oklahoma entered into a hunting and fishing compact in 2015 

that allows enrolled tribal members to freely exercise their treaty 

rights across the state and without fear of arrest or prosecution 

off tribal land.

In addition to the right to fish and access usual and accustomed 

fishing places, a treaty right to fish includes the ability to erect 

structures at those sites. The type of structure permitted and the 

degree of permanence is still in dispute as of 2015. Some 

examples of these structures include drying sheds, fishing 

platforms, removable dwellings, or semi-permanent wooden 

dwellings. The usual and accustomed places are those of the 

tribes who signed the treaty. Only those tribes which entered into 

and signed the treaty, reserving the right to fish at the usual and 

accustomed sites, have the right to fish at their usual and 

accustomed sites. A non-treaty tribe that later affiliates with one 

of the treaty tribes may share the treaty tribe’s right to fish, but 

that non-treaty tribe has no treaty right to fish at its own 

accustomed places.21 If, however, two treaty tribes merge and 

become one tribe, the resulting merged tribe may exercise the 

treaty rights of both original tribes.22

4.6 Disestablishment, Cession, State Regulation

Off-treaty reservation rights may arise from disestablishment or 

cession. Disestablishment is a Congressional decision to 

abandon the reservation status of land. In most cases, the 

disestablishment of the reservation occurred when Congress 

allotted the reservation land to individual Indians, held some 

land in trust for Indians, and sold surplus lands to non-Indians.

In Kimball v. Callahan,23 the Ninth Circuit Court of Appeals held 

that although the Klamath Reservation had been terminated by 

Congress, plaintiff Indians still possessed hunting, fishing, and 

trapping rights free of state regulation on their former reservation 
Conservation Law 127

lands, including lands within a national forest and privately 

owned land on which the owners permitted hunting, fishing, and 

trapping to take place.

The Supreme Court upheld tribal rights to hunt and fish free of 

state regulation on ceded lands in Antoine v. Washington,24 when 

a state attempted to impose its hunting laws against an Indian 

who was exercising a right to hunt on ceded lands, guaranteed 

by the United States through an agreement with a tribe. The 

tribal member was convicted in state court of hunting and 

possessing deer during a closed season. Both the member and 

his wife were hunting on unallotted, non-Indian land in what was 

once the northern half of the Colville Indian Reservation.

In 1891, the tribe had ceded 1.5 million acres of their former 

reservation to the United States—who in turn restored the 

northern half to the public domain and opened it to settlement 

by non-Indians—in exchange for monetary compensation and a 

promise that the right to hunt and fish in common with all other 

persons on lands not allotted to Indians shall not be taken away 

or in anywise abridged.

The Court found the argument that the state had no authority to 

regulate hunting by its members on its former reservation area 

to be supported by the agreement, and that the tribe and its 

members had exclusive, absolute, and unrestricted rights to 

hunt and fish in the ceded portion of the reservation.

Since the agreement limited governmental regulation of the rights 

as a matter of federal (treaty) law, it precluded application of state 

law and the tribal member’s criminal conviction was overturned.

Indian off-reservation treaty fishing rights are subject to state 

regulation, but the state’s regulation must be for the purpose of 

conservation and it must meet “appropriate standards.” In 
128 Conservation Law

Puyallup Tribe v. Department Of Game Of Washington (Puyallup 

I),25 the United States Supreme Court stated that:

“The treaty right is in terms the right to fish ‘at all usual 

and accustomed places.’ [B]ut the manner in which the 

fishing may be done and its purpose, whether or not 

commercial, are not mentioned in the Treaty...Moreover, 

the right to fish at those respective places is not an 

exclusive one. Rather, it is one "in common with all citizens 

of the Territory." Certainly the right of the latter may be 

regulated. And we see no reason why the right of the 

Indians may not also be regulated by an appropriate 

exercise of the police power of the State. The right to fish 

"at all usual and accustomed" places may, of course, not 

be qualified by the State...[b]ut the manner of fishing, the 

size of the take, the restriction of commercial fishing, and 

the like may be regulated by the State in the interest of 

conservation, provided the regulation meets appropriate 

standards and does not discriminate against the Indians.”

In Department Of Game Of Washington v. Puyallup Tribe (Puyallup 

II),26 the Supreme Court held the state could regulate the fishing 

of steelhead, a fish that is in decline and remains on the 

endangered list as of 2015:

“[Treaty] [r]ights can be controlled by the need to conserve 

a species; and the time may come when the life of a 

steelhead is so precarious in a particular stream that all 

fishing should be banned until the species regains 

assurance of survival. The police power of the State is 

adequate to prevent the steelhead from following the fate 

of the passenger pigeon; and the Treaty does not give the 

Indians a federal right to pursue the last living steelhead 

until it enters their nets.”
Conservation Law 129

The Supreme Court explained the “appropriate standards” 

described in Puyallup I require the state to demonstrate that 

regulation is a reasonable and necessary conservation measure.

In Puyallup Tribe v. Department Of Game Of Washington (Puyallup 

IIII),27 the Supreme Court held states could regulate treatyguaranteed fishing rights on the reservation as well as offreservation purposes only if reasonable and necessary for 

conservation (as in the case of endangered steelhead).

Some common regulations include:

• restricting manner of fishing or hunting; 

• limiting the size of the take;

• restricting commercial fishing or hunting;

• requiring tribes holding off-reservation treaty fishing rights to 

issue identification certificates that include a photograph to 

individual members; and

• requiring tribal members to carry a certificate when 

approaching, fishing, or leaving either on- or off- reservation 

fishing areas. 

Under 50 C.F.R. §300.64, “any member of a U.S. treaty Indian 

tribe who is engaged in commercial or ceremonial and 

subsistence fishing under this section must have on his or her 

person a valid treaty Indian identification card issued pursuant 

to [25 C.F.R. §249(A)], and must comply with the treaty Indian 

vessel and gear identification requirements of [United States v. 

Washington, 384 F. Supp. 312 (W.D. Wash., 1974)].”

In New Mexico v. Mescalero Apache Tribe,28 the state was 

preempted from regulating hunting and fishing by non-Indians 

on the reservation when the tribe and the federal government 

extensively regulated hunting and fishing on the reservation. At 

issue in Mescalero was the exercise of concurrent jurisdiction 
130 Conservation Law

over hunting and fishing by non-Indians and application of state 

regulations to non-Indian on the reservation.

Prior to Mescalero, the Mescalero Apache Tribe and the federal 

government entered into a joint effort to develop a resort funded 

primarily by the United States. The goal of the resort was to 

develop the tribe’s hunting and fishing resources and create 

employment for tribal members, generate revenue through sales 

of hunting and fishing licenses, and support the tribal 

government and its provision of services to tribal members. 

The Mescalero Tribe established eight artificial lakes with federal 

funding; these lakes were stocked by the U.S. Fish and Wildlife 

Service, which operated a hatchery on the reservation. The 

United States also contributed to the development of the tribe’s 

game resources in 1966, when the National Park Service donated 

a herd of 162 elk to be released on the reservation. Under the 

tribe’s careful management, the herd increased from 162 elk to 

more than 1,200.

Through its tribal council, the tribe adopted hunting and fishing 

ordinances each year, on basis of recommendations from a BIA 

range conservationist, who worked with tribal conservation 

officers. Working together, the tribe and the federal government 

conducted a comprehensive fish and game management 

program; they conducted annual game counts and surveys to 

determine conservation needs, and determined the need to stock 

the reservation waters based on surveys of the reservation. 

Throughout this period, the state did not dispute the tribe’s 

authority to exclusively regulate hunting and fishing by members 

of the tribe. Once the tribe permitted non-Indians to hunt and 

fish on the reservation, the state argued that New Mexico’s 

hunting and fishing regulations should apply to non-Indians on 

the reservation. 
Conservation Law 131

The Supreme Court disagreed:29

“In this case the governing body of an Indian Tribe, working 

closely with the Federal Government and under the 

authority of federal law, has exercised its lawful authority 

to develop and manage the reservation's resources for the 

benefit of its members. The exercise of concurrent 

jurisdiction by the State would effectively nullify the Tribe's 

unquestioned authority to regulate the use of its resources 

by members and nonmembers, interfere with the 

comprehensive tribal regulatory scheme, and threaten 

Congress' firm commitment to the encouragement of tribal 

self-sufficiency and economic development. Given the 

strong interests favoring exclusive tribal jurisdiction and 

the absence of State interests which justify the assertion of 

concurrent authority, we conclude that the application of 

the State's hunting and fishing laws to the reservation is 

preempted.”

In Antoine v. Washington,30 the Supreme Court held that the 

Puyallup I rules allowing state regulation of off-reservation treaty 

rights applies to Indian hunting rights as well as fishing rights. 

Since none of the Puyallup I factors were present in Mescalero, 

and the state’s goal was revenue rather than conservation, the 

Supreme Court enjoined the state from asserting authority over 

non-Indians’ hunting or fishing activities on the reservation.

4.7 Tribal Enforcement

Generally, the federal government leaves hunting and fishing 

regulation to the tribes. The tribe’s power to regulate includes 

regulation of hunting and fishing by Indians on non-Indian fee 

lands within the reservation31 and the power to regulate treaty 

hunting or fishing conducted off-reservation by its members.
132 Conservation Law

As tribes may exclude or expel non-Indians who violate tribal 

hunting or fishing laws, they also retain the power to license 

hunting and fishing by non-Indians reservation lands held in 

trust for the tribe or individual Indians.32

Therefore, tribes can give permission to enter their lands by using 

a licensing system for non-Indians; hunting or fishing without a 

tribal permit would be subject to federal prosecution under the 

federal trespass statute.33

The federal trespass statute, 18 U.S.C. § 1165, recognizes the 

exclusive right of Indians to hunt and fish on their reservations 

by bringing the prosecutorial power of the United States against 

non-Indians who trespass on Indian lands for the purpose of 

hunting, fishing, or trapping.

This statute makes it a crime for any person to go on to Indian 

lands with the intent to hunt, trap, or fish. Lawful authority or 

permission comes from the tribe with jurisdiction over the land34:

“Whoever, without lawful authority or permission, willfully 

and knowingly goes upon any land that belongs to any 

Indian or Indian tribe, band, or group and either are held 

by the United States in trust or are subject to a restriction 

against alienation imposed by the United States, or upon 

any lands of the United States that are reserved for Indian 

use, for the purpose of hunting, trapping, or fishing 

thereon, or for the removal of game, peltries, or fish 

therefrom, shall be fined...or imprisoned...or both, and all 

game, fish, and peltries in his possession shall be 

forfeited.”

In United States v. Jackson,35 the Ninth Circuit held that the 

federal trespass statute is inapplicable to Indians. In the Jackson
Conservation Law 133

case, a tribal member hunted in violation of a tribal ordinance 

and entered tribal lands without permission. 

As a result, the tribal member was federally prosecuted under 

§1165, but the court held that members of the tribe who violate 

tribal hunting or fishing ordinances cannot be prosecuted under 

§ 1165. Such prosecutions are left to the tribes with authority to 

prosecute Indians who violate tribal law. Congress passed 18 

U.S.C. §1165 because tribes do not have authority to criminally 

prosecute non-Indians.

Even though the federal trespass statute is inapplicable to 

Indians, tribes may punish their members directly. In Settler v. 

Lameer,36 two members of the Yakima Nation were convicted by 

their tribal court of violating tribal ordinances at that tribe’s 

usual and accustomed fishing sites off the reservation. 

The Ninth Circuit Court of Appeals affirmed a tribe’s right to 

exercise criminal jurisdiction over tribal members exercising 

treaty fishing rights off-reservation in the usual and accustomed 

fishing sites and concluded:

“...Prior to the Treaty the regulations for fishing had been 

established by the Tribe through its customs and tradition. 

The Indians must surely have understood that Tribal 

control would continue after the Treaty.”

This means that the tribe can make arrests and seizures offreservation, at usual and accustomed fishing and hunting sites, 

for criminal violations of tribal fish and game ordinances 

committed by tribal members. Those fish and game ordinances 

may allocate fishing times among members, determine what type 

of equipment can be used, determine the time of taking fish or 

game, and determine preferences among fishing purposes. 
134 Conservation Law

For example, a tribe could give the highest priority to subsistence 

fishing or hunting, then ceremonial fishing or hunting, then 

commercial fishing or hunting. A tribe may also elect to disallow 

commercial fishing entirely or require special permitting. 

As to non-Indians, any tribal enforcement measures must be civil 

in nature, due to the decision in Oliphant v. Suquamish Tribe, 

which held that tribes have no criminal jurisdiction over nonIndians, and under Quechen Tribe v. Rowe,37 which held that a 

tribe’s use of forfeiture of arms or other property of non-Indians 

as an enforcement mechanism was an impermissible criminal 

penalty. 

As the tribe has the power to regulate Indian hunting and fishing 

on the reservation, the choice to directly exercise this power or 

not lies with the tribe. Tribes often enlist the aid of federal 

authorities to prosecute violations of tribal game and fish laws by 

way of federal trespass statute; the United States also prosecutes 

game violations under several broad environmental statutes 

such as the (Bald and Golden) Eagle Protection Act, the 

Endangered Species Act, the Migratory Bird Treaty Act, and the 

Lacey Act.

4.8 Bald and Golden Eagle Protection Act

The federal government’s plenary power over Indian affairs 

extends to regulating Indian hunting and fishing. Through its 

plenary power, the federal government could extensively regulate 

hunting and fishing in Indian Country. While the federal 

government generally leaves hunting and fishing regulation to 

the tribes, federal statutes have significantly limited the tribes’ 

exercise of treaty rights and rights guaranteed by agreement.

Congress can also wholly abrogate a treaty hunting right through 

passage of federal legislation, as it did with the Eagle Protection 
Conservation Law 135

Act, 16 U.S.C. §668(a), and the Endangered Species Act, 16 U.S.C. 

§1531 et seq.

The Eagle Protection Act (also called the Bald and Golden Eagle 

Protection Act) prohibits hunting of the bald or golden eagles

anywhere within the United States, except if the person has a 

permit issued by the Secretary of the Interior, allowing that 

person to take a bald or golden eagle. The Act was passed to 

conserve bald eagles in 1940, and amended in 1962 to include 

golden eagles. Juvenile bald and golden eagles both lack a white 

cap and tail feathers, and Congress found the confusion between 

the species caused a decrease in bald eagle population due to 

hunting.

The Eagle Protection Act and its impact on treaty hunting rights 

was at issue in United States v. Dion.38 An enrolled member of the 

Yankton Sioux Tribe was convicted of shooting four bald eagles 

on the Yankton Sioux Reservation in South Dakota in violation 

of the Endangered Species Act. The tribal member was also 

convicted of selling eagle carcasses and parts and other birds, 

which violated the Eagle Protection Act, the Migratory Bird Treaty 

Act, and the Endangered Species Act.

The Supreme Court examined an 1858 Treaty between the States 

and the Yankton Sioux Tribe. As a result of the treaty, Yankton 

ceded all but 400,000 acres to the United States, and agreed to 

remove to and settle within the diminished boundaries of 

reservation. In return, the tribe received monetary compensation 

and a promise of quiet and undisturbed possession of reserved 

land, including an exclusive right to hunt and fish. 

The tribal member argued that the Yankton Sioux Tribe had a 

treaty right to hunt bald and golden eagles within the reservation 

for noncommercial purposes and that neither the Eagle Protection 

Act nor the Endangered Species Act had expressly abrogated that 
136 Conservation Law

treaty right. Recall that Congress may abrogate the provisions of 

an Indian treaty when the circumstances require or justify 

ignoring treaty provisions in the interest of the country and the 

Indians themselves. 

Before Dion, the Supreme Court required that Congress explicitly 

state its intention to abrogate treaty rights. In passing the Eagle 

Protection Act, Congress could have expressed clear intention to 

abrogate by simply stating that the legislation eliminated treaty 

rights in the 1858 Treaty.

Without an express abrogation, Supreme Court relied on

legislative history to find evidence that Congress considered the 

conflict between protecting eagles and Indian treaty rights on the 

other before choosing to pass legislation that would abrogate 

those treaty rights as to the hunting of eagles.

The Court found evidence of Congress’ intent to abrogate the 

treaty rights in the broad language of the Eagle Protection Act that 

makes it a federal crime to, “...take, possess, sell, purchase, 

barter, offer to sell, purchase, or barter, transport, export or 

import, at any time or in any manner any bald eagle commonly 

known as the American eagle or any golden eagle, alive or dead, 

or any nest, or egg thereof.”39

The prohibition is “sweepingly framed” and the enumeration of 

forbidden acts is “exhaustive and careful,”40 thus illustrating 

Congressional intention to cover every possible way in which 

eagles and eagle parts can be obtained.

Evidence of consideration of treaty rights is found in a section of 

the Eagle Protection Act that authorizes the Secretary of the 

Interior to permit the taking, possession, and transportation of 

eagles “for the religious purposes of Indian tribes” after 

determining that such taking or possession or transportation is 
Conservation Law 137

compatible with the preservation of the bald eagle or golden eagle. 

The fact that eagles could be taken under permit for Indian 

religious purposes could only be understood to mean that the 

statute otherwise bans the taking of eagles by Indians.

4.9 Endangered Species Act

The Endangered Species Act of 1973 (ESA), at 16 U.S.C. §136 and 

16 U.S.C. §1531 et seq., is among the broadest of environmental 

laws passed in the 1970s. The Act was designed to protect 

critically imperiled species from extinction as a "consequence of 

economic growth and development untendered by adequate 

concern and conservation."

In Dion, the Supreme Court did not address the issue of whether 

Congress abrogated Indian treaty rights to hunt for bald and 

golden Eagles through passage of the Endangered Species Act.

In the only reported federal case deciding the issue, United States 

v. Billie,41 the court held the Endangered Species Act abrogated 

the right to hunt the Florida panther—an endangered species—

on the reservation. In Billie, a tribal member was indicted for 

taking, possessing, carrying, and transporting a Florida panther 

in violation of the Endangered Species Act.

The tribal member argued that the panther had been killed on 

the Big Cypress Seminole Indian Reservation in Florida, that he 

was an enrolled member, that the tribe retained treaty rights to 

hunting and fishing, and that there was no evidence that 

Congress intended to abrogate the right to hunt endangered 

species on the reservation.

The federal court applied the Dion test to determine whether there 

was “clear evidence that Congress actually considered the 

conflict between its intended action on the one hand and Indian 
138 Conservation Law

treaty rights on the other, and chose to resolve that conflict by 

abrogating” the Indian rights as it had with the Eagle Protection 

Act. The court concluded that such evidence was present 

concerning passage of the ESA. 

• First, the court characterized the statute as the most 

comprehensive legislation ever enacted to preserve endangered 

species;

• Second, the statute contained very limited exemptions, one of 

which was for Native Alaskans who were permitted to take 

endangered species, but only for subsistence purposes, and only 

according to federal regulations governing the exemption; and

• Third, the legislative history witnessed Congress’ debate on 

various versions of the bill and indicated to the court that when 

Congress passed the ESA with only an exemption for Native 

Alaskans, it “must have known that the limited Alaskan 

exemption would be interpreted to show congressional intent not 

to exempt other Indians.” 

Collectively, these factors demonstrated to the court that 

Congress considered Indian interests, balanced them against 

conservation needs, and struck the balance in favor of 

endangered species.

4.10 Migratory Bird Treaty Act

The Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703-712, is a 

convention between the United States and Great Britain, acting 

on behalf of Canada. (In 1918, Britain still maintained control of 

the Dominion of Canada's foreign affairs under the Confederation 

Act.)
Conservation Law 139

The United States subsequently entered into similar treaty 

agreements with four other nations—Canada, Mexico, Japan and 

Russia—to protect migratory birds. The statute makes it 

unlawful to pursue, hunt, take, capture, kill or sell certain 

migratory birds listed by statute.

The statute does not discriminate between the taking of live or 

dead birds and grants full protection to any bird parts including 

feathers, eggs and nests. Over 800 species are currently on the 

list.

In United States v. Bresette,42 the court determined whether 

treaties with the Chippewa had reserved their usufructuaryi

rights, whether those rights included the taking of migratory 

birds and their feathers, and whether Congress had abrogated 

those rights with passage of the Migratory Bird Treaty Act of 1918. 

In the Bresette case, tribal members (of the Red Cliff Band of the 

Lake Superior Chippewa Tribe and Fond du Lac Band of Lake 

Superior Chippewa) living on their reservations (Red Cliff 

Reservation and Fond du Lac Reservation) sold dream catchers 

that contained feathers (Canada goose, blue/snow goose, and 

red-tailed hawk), which were obtained from land on or near the 

Fond du Lac Reservation. 

The tribal members were charged with violations of the Migratory 

Bird Treaty Act, and the court held that Chippewa tribe reserved 

full usufructuary rights under cession treaties in 1842 and 1854 

with the United States. The tribe and its members reserved right 

to hunt, fish, and gather, including taking feathers, for personal 

use and for commercial purposes. The commercial sale of dream 

catchers, according to the court, is consistent with Chippewa 

beliefs.

 i Usufructuary rights [pron: yoòzə frúkchoo èrree] are the rights to make a 

modest living by “hunting and gathering off the land.”
140 Conservation Law

Having found that these defendants had a treaty right to sell the 

feathers, the court’s next inquiry was whether the Migratory Bird 

Treaty Act had abrogated these treaty rights. Applying the Dion

standard for determining abrogation, court examined the Act’s 

statutory language and its legislative history and held that 

“[g]iven the absence of statutory language implicating treaty 

rights, the court must conclude that Congress did not abrogate 

defendants’ treaty rights in enacting the Migratory Bird Treaty 

Act.”

Finally, the court considered the issue of whether, even if the 

defendants had an unabrogated treaty right to sell the migratory 

bird feathers, the Act was a permissible, nondiscriminatory 

conservation measure under Puyallup.

The court held that the “migratory birds of Northern Minnesota 

and Wisconsin are not faced with extinction due to the likes of 

[tribal members]” and thus was not a non-discriminatory 

conservation method intended to prevent the extinction of birds.

Therefore, tribal members had a treaty right to take bird feathers 

which had not been abrogated and this treaty right was not 

subject to a Puyallup conservation limitation.

4.11 Lacey Act

The Lacey Act, 16 U.S.C. § 3371 et seq., prohibits transport of or 

traffic in fish, wildlife, or plants taken, possessed or sold in 

violation of any federal, state, or tribal law.

Mere possession of wildlife or fish in territory within the exclusive 

jurisdiction of the United States (which includes Indian Country, 

see 18 U.S.C. § 1151), that was taken in violation of tribal law is 

also prohibited. Congress intended the Lacey Act, which 

prohibits transporting, selling, or acquiring fish taken or 
Conservation Law 141

possessed in violation of Indian tribal law or state law, to apply 

to Indians as well as non-Indians. Enforcement of the Lacey Act

is the responsibility of the Secretary of Interior under 16 U.S.C. § 

3375(a) and has been delegated to the U.S. Fish and Wildlife 

Service.

The Bureau of Indian Affairs also has concurrent jurisdiction to 

enforce the Lacey Act in Indian Country. This means that a tribal 

conservation officer with a Special Law Enforcement Commission 

from the Bureau of Indian Affairs has authority to enforce the 

Lacey Act within the exterior boundaries of the reservation.

In United States v. Sohappy,43 the Ninth Circuit stated that, in 

enacting the Lacey Act, Congress “wished to curb trafficking in 

illegally acquired wildlife in order to help support the web of 

federal, state and Indian tribal law protecting wildlife” and thus 

authorized prosecution of Indians who violate its provisions.

Federal prosecutions of Indians who violate tribal fishing or 

hunting laws was seen as necessary by the court because 

“Indians who traffic in illegal wildlife harm the...goal of wildlife 

preservation just as much as non-Indian traffickers,” and “the 

stiff Lacey Act penalties are necessary to ‘deter those violators 

who can net $100,000 per year by trafficking illegally caught 

salmon.’” 

As of 2015, the Lacey Act has been applied to takings by a tribal 

member in violation of a different tribe’s conservation code, but 

not to takings by a tribal member in violation of the same tribe’s 

code.44 In Big Eagle, a member of the Crow Creek Sioux Tribe, 

was charged in federal court with a Lacey Act violation for 

acquiring, possessing, transporting, and selling fish taken in 

violation of Lower Brulé tribal law. Big Eagle argued that the 

federal court had no subject matter jurisdiction to hear the case 

because the Lacey Act does not apply to Indians, but the court 
142 Conservation Law

held that the federal government can regulate fishing 

concurrently with the Indian tribes in the interest of 

conservation.

The court further held that the Lower Brulé Tribe, like all tribes, 

has the power to manage use of its territory and resources by 

both members and nonmembers and may regulate fishing by 

nonmembers of the tribe on tribal land. A tribe with authority to 

regulate fishing has the right to determine who may enter the 

reservation, define conditions upon which they may enter, 

prescribe rules of conduct, expel those who enter the reservation 

without proper authority, expel those who violate tribal, state, or 

federal laws, and refer those who violate state or federal laws to 

state or federal officials—even if that person is a member of a 

different tribe.

In Brown, tribal members from the Leech Lake and White Earth 

Bands of the Minnesota Chippewa Tribe took fish by gill net for 

commercial purposes; this taking violated their own tribe’s 

conservation code, which “prohibits taking fish for commercial 

purposes within the reservation, except for non-game fish when 

authorized by a permit from the band's conservation committee.”

They were prosecuted by the United States, but the government 

did not argue at trial that Congress abrogated Chippewa fishing 

rights through the Lacey Act. The Lacey Act itself does not 

abrogate rights45:

“Nothing in this chapter shall be construed as ... repealing, 

superseding, or modifying any right, privilege, or immunity 

granted, reserved, or established pursuant to treaty, 

statute, or executive order pertaining to any Indian tribe, 

band, or community.”
Conservation Law 143

The tribal members moved to dismiss the indictments, arguing 

that the government could not prosecute them because the right 

to fish on tribal waters under an 1837 treaty had not been 

abrogated. 

Under Dion, there must be “clear evidence that Congress actually 

considered a conflict between its intended action on the one hand 

and Indian treaty rights on the other, and chose to resolve that 

conflict by abrogating the treaty” before treaty rights can be 

abrogated.46 The court found that “although Congress may 

abrogate Indian treaty rights, it must make its intention to do so 

‘clear and plain.’”47

Without a showing by the government that Congress abrogated 

the rights asserted by the tribal members, the court held that the 

historic fishing rights of the tribe barred prosecution of tribal 

members from the same tribe for taking fish within the Leech 

Lake Reservation and selling them contrary to tribal conservation 

law. While there is dispute as to whether the Lacey Act applies to 

tribal members who violate their own tribe’s conservation law, it 

is clear that it applies to members of other tribes.

Additionally, even though tribes have the power to exclude nonIndians from hunting or fishing on Indian lands under 

Washington v. Washington State Commercial Passenger Fishing 

Vessel Association,48 the Supreme Court held that a tribe has no 

power to regulate non-Indian hunting and fishing on fee lands 

owned by non-Indians within the reservation in Montana v. 

United States.49 In Montana, the Crow Tribe passed a resolution 

prohibiting hunting and fishing by non-Indians. The resolution 

applied to all lands within the reservation boundaries, including 

land owned in fee by non-Indians. The Supreme Court held that

the extent of the tribe’s power to regulate hunting or fishing by 

non-Indians extended only to lands belonging to the tribe or held 

in trust by the United States.
144 Conservation Law

The federal trespass statute, 18 U.S.C. § 1165, does not apply to 

fee lands within reservations. Fee lands are not considered to be 

within Indian Country. However, the Lacey Act amendments still 

apply to fee lands within reservations.50 Nothing in the Lacey Act

diminishes or increases the authority of a tribe or state “to 

regulate activities of persons within reservations,” so existing 

authority held by the tribe or state on fee lands within 

reservations does not change under 16 U.S.C. § 3378 (c)(3).
1 See Menominee Tribe v. United States, 391 U.S. 404 (1968).

2 618 F.2d 665 (10th Cir. 1980).

3 See Menominee at 404.

4 See U.S. v. Felter, 752 F.2d 1505 (10th Cir. 1985).

5 See Northern Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 

1987).

6 Jones v. Meehan, 175 U.S. 1, 11 (1899). See e.g. Tulee v. 

Washington, 315 U.S. 681 (1942); Seufert Bros. Co. v. United 

States, 249 U.S. 194 (1919); United States v. Winans, 198 U.S. 

371 (1905); Washington v. Yakima Indian Nation, 439 U.S. 463, 

484 (1979).

7 See Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31 (1970); 

See also Winters v. United States, 207 U.S. 564, 576 (1908).

8 See Choctaw Nation v. United States, 318 U.S. 423, 431 (1943); 

See also U. S. v. State of Minn., 466 F. Supp. 1382, 1385 (D. Minn. 

1979) aff'd sub nom. Red Lake Band of Chippewa Indians v. State 

of Minn., 614 F.2d 1161 (8th Cir. 1980).

9 Choctaw Nation v. United States, 119 U.S. 1, 28 (1886).

10 198 U.S. 371 (1905).

11 ART. III, 1859 TREATY BETWEEN THE UNITED STATES AND THE YAKIMA 

INDIAN NATION. 12 Winans, at 381.

13 Id.

14 Id.

15 Id. at 384. 16 Id. at 381. 17 See Puyallup Tribe v. Department Of Game, 391 U.S. 392, 398 

(1968), infra. 18 Seufurt Bros. Co. v. United States, 249 U.S. 194 (1919).

19 384 F. Supp 312 (W.D. Wash. 1974).

20 See Tulee v. Washington, 315 U.S. 681 (1942).

21 See Whakiakum Band of Chinook Indians v. Bateman, 655 F.2d 

176 (9th Cir. 1981).

22 See United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th 

Cir. 1990).

23 493 F.2d 564 (9th Cir. 1974), cert denied, 419 U.S. 1019 

(1974).

24 420 U.S. 194 (1975).

 
 25 391 U.S. 392, 398 (1968).

26 414 U.S. 44 (1973).

27 433 U.S. 165 (1977).

28 462 U.S. 324 (1983).

29 Mescalero, at 343-44.

30 420 U.S. 194 (1975).

31 See Lower Brule Sioux Tribe v. South Dakota, 711 R.2d 809, 

(8th Cir.1983), cert. denied, 464 U.S. 1042 (1984).

32 See e.g., Montana, supra; Mescalero, supra. 33 See United States v. Pollmen, 364 F. Supp. 995 (D. Mont. 1973).

34 Pub.L 86-634, §2 (July 12, 1960), 74 Stat.469.

35 600 F.2d 1283 (9th Cir. 1979).

36 507 F.2d 231 (9th Cir. 1974).

37 531 F.2d 408 (9th Cir. 1976).

38 476 U.S. 734 (1986).

39 16 U.S.C. § 668(a). 40 Andrus v. Allard, 444 U.S. 51, 56 (1979).

41 667 F. Supp. 1485 (S.D. Fla.1987).

42 761 F. Supp. 658 (D. Minn. 1991).

43 770 F. 2d 816 (9th Cir. 1985), cert denied, 447 U.S. 906 (1986).

44 See United States v. Big Eagle, 684 F. Supp. 241 (D. S.D. 1988), 

affirmed, United States v. Big Eagle, 881 F.2d 539, (8th Cir. 

1989), reh’g denied, Big Eagle v. United States, 493 U.S. 1984 

(1990), cert. denied.), Cf. United States v. Brown, 777 F.3d 1025, 

1034 (8th Cir. 2015).

45 16 U.S.C. §3378(c)(2). 46 Dion at 740.

47 Brown at 1034, quoting Dion at 738.

48 443 U.S. 658 (1979).

49 450 U.S. 544 (1981).

50 See 16 U.S.C. § 3372(a)(3). 
Indian Child Welfare Act 145

Chapter Five

Indian Child Welfare Act

5.1 Purpose ...............................................................145

5.2 Text of ICWA .......................................................146

5.3 Exclusive Jurisdiction, Full Faith and Credit.......160

5.4 Leading ICWA Cases ............................................162

5.5 Notice, Time, Invalidation (§§ 1912-1914) ...........165

5.6 Order Of Preference (§§ 1915 -1916)....................166

5.7 Notification At Eighteen (§§ 1917-1922)..............167

5.1 Purpose

From the allotment and assimilation periods in the 1880s, 

Federal policies related to Indian education and youth largely 

revolved around teaching English instead of tribal languages, 

encouraging individual rather than tribal identity, and adopting 

mainstream religion.1

To that end, state courts, child welfare agencies, and private 

adoption agencies worked to remove as many as 25 to 35 per cent 

of Indian children from their families and tribes in certain states 

by claiming that traditional Indian child-rearing practices were 

against the child’s best interests. The result was a loss of 

language, a loss of cultural identity, and the loss of Indian family 

structures. 

By 1978, Congress recognized the need to re-establish tribal 

authority over the adoption of American Indian children, 

strengthen families, and preserve traditional languages and 

cultures. As a result, the Indian Child Welfare Act (ICWA)2 was 

passed to protect the integrity of Indian tribes and ensure their 

future by requiring that Indian children, once removed from their 

parents, be placed in homes that reflect their unique traditional 

values. 
146 Indian Child Welfare Act

The overriding purpose of ICWA is the protection, preservation, 

and advancement of the integrity of Indian families. It expands 

and enhances tribal authority over decision-making, enables the 

preservation of tribal culture and identity by granting tribal 

courts either exclusive or concurrent jurisdiction over child 

custody and adoption matters involving an Indian child,3 and 

recognizes that the tribe has an interest in the child which is 

distinct from but on a parity with the interest of the parents.4

ICWA addresses proceedings regarding foster care placement, 

adoptions, pre-adoptive placements and termination of parental 

rights, but does not address custody disputes between parents 

arising out of divorce proceedings. 

5.2 Text of ICWA

25 U.S.C. § 1901 Congressional findings 

Recognizing the special relationship between the United States 

and the Indian tribes and their members and the Federal 

responsibility to Indian people, the Congress finds—

(1) that clause 3, section 8, article I of the United States 

Constitution provides that “The Congress shall have Power . . . To 

regulate Commerce . . . with Indian tribes” and, through this and 

other constitutional authority, Congress has plenary power over 

Indian affairs;

(2) that Congress, through statutes, treaties, and the general 

course of dealing with Indian tribes, has assumed the 

responsibility for the protection and preservation of Indian tribes 

and their resources;

(3) that there is no resource that is more vital to the continued 

existence and integrity of Indian tribes than their children and that 

the United States has a direct interest, as trustee, in protecting 
Indian Child Welfare Act 147

Indian children who are members of or are eligible for membership 

in an Indian tribe;

(4) that an alarmingly high percentage of Indian families are 

broken up by the removal, often unwarranted, of their children 

from them by nontribal public and private agencies and that an 

alarmingly high percentage of such children are placed in nonIndian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over 

Indian child custody proceedings through administrative and 

judicial bodies, have often failed to recognize the essential tribal 

relations of Indian people and the cultural and social standards 

prevailing in Indian communities and families.

25 U.S.C. § 1902 Congressional declaration of policy 

The Congress hereby declares that it is the policy of this Nation to 

protect the best interests of Indian children and to promote the 

stability and security of Indian tribes and families by the 

establishment of minimum Federal standards for the removal of 

Indian children from their families and the placement of such 

children in foster or adoptive homes which will reflect the unique 

values of Indian culture, and by providing for assistance to Indian 

tribes in the operation of child and family service programs.

25 U.S.C. § 1903 Definitions 

For the purposes of this Act [25 U.S.C. §§ 1901 et seq.], except as 

may be specifically provided otherwise, the term—

(1) “child custody proceeding” shall mean and include--

(i) “foster care placement” which shall mean any action 

removing an Indian child from its parent or Indian custodian 

for temporary placement in a foster home or institution or the 

home of a guardian or conservator where the parent or 

Indian custodian cannot have the child returned upon 
148 Indian Child Welfare Act

demand, but where parental rights have not been 

terminated;

(ii) “termination of parental rights” which shall mean any 

action resulting in the termination of the parent-child 

relationship;

(iii) “preadoptive placement” which shall mean the 

temporary placement of an Indian child in a foster home or 

institution after the termination of parental rights, but prior 

to or in lieu of adoptive placement; and

(iv) “adoptive placement” which shall mean the permanent 

placement of an Indian child for adoption, including any 

action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an 

act which, if committed by an adult, would be deemed a crime or 

upon an award, in a divorce proceeding, of custody to one of the 

parents.

(2) “extended family member” shall be as defined by the law or 

custom of the Indian child’s tribe or, in the absence of such law or 

custom, shall be a person who has reached the age of eighteen 

and who is the Indian child’s grandparent, aunt or uncle, brother 

or sister, brother-in-law or sister-in-law, niece or nephew, first or 

second cousin, or stepparent;

(3) “Indian” means any person who is a member of an Indian tribe, 

or who is an Alaska Native and a member of a Regional 

Corporation as defined in section 7 of the Alaska Native Claims 

Settlement Act (85 Stat. 688, 689) [43 U.S.C. § 1606];

(4) “Indian child” means any unmarried person who is under age 

eighteen and is either (a) a member of an Indian tribe or (b) is 

eligible for membership in an Indian tribe and is the biological child 

of a member of an Indian tribe;
Indian Child Welfare Act 149

(5) “Indian child’s tribe” means (a) the Indian tribe in which an 

Indian child is a member or eligible for membership or (b), in the 

case of an Indian child who is a member of or eligible for 

membership in more than one tribe, the Indian tribe with which the 

Indian child has the more significant contacts;

(6) “Indian custodian” means any Indian person who has legal

custody of an Indian child under tribal law or custom or under 

State law or to whom temporary physical care, custody, and 

control has been transferred by the parent of such child;

(7) “Indian organization” means any group, association, 

partnership, corporation, or other legal entity owned or controlled 

by Indians, or a majority of whose members are Indians;

(8) “Indian tribe” means any Indian tribe, band, nation, or other 

organized group or community of Indians recognized as eligible for 

the services provided to Indians by the Secretary because of their 

status as Indians, including any Alaska Native village as defined 

in section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 

688, 689), as amended [43 U.S.C. § 1602(c)];

(9) “parent” means any biological parent or parents of an Indian 

child or any Indian person who has lawfully adopted an Indian 

child, including adoptions under tribal law or custom. It does not 

include the unwed father where paternity has not been 

acknowledged or established;

(10) “reservation” means Indian country as defined in section 1151 

of title 18, United States Code and any lands, not covered under 

such section, title to which is either held by the United States in 

trust for the benefit of any Indian tribe or individual or held by any 

Indian tribe or individual subject to a restriction by the United 

States against alienation;

(11) “Secretary” means the Secretary of the Interior; and
150 Indian Child Welfare Act

(12) “tribal court” means a court with jurisdiction over child 

custody proceedings and which is either a Court of Indian 

Offenses, a court established and operated under the code or 

custom of an Indian tribe, or any other administrative body of a 

tribe which is vested with authority over child custody 

proceedings.

25 U.S.C. § 1911 Indian tribe jurisdiction over Indian child 

custody proceedings 

(a) Exclusive jurisdiction. An Indian tribe shall have jurisdiction 

exclusive as to any State over any child custody proceeding 

involving an Indian child who resides or is domiciled within the 

reservation of such tribe, except where such jurisdiction is 

otherwise vested in the State by existing Federal law. Where an 

Indian child is a ward of a tribal court, the Indian tribe shall retain

exclusive jurisdiction, notwithstanding the residence or domicile of 

the child.

(b) Transfer of proceedings; declination by tribal court. In any State 

court proceeding for the foster care placement of, or termination of 

parental rights to, an Indian child not domiciled or residing within 

the reservation of the Indian child’s tribe, the court, in the absence 

of good cause to the contrary, shall transfer such proceeding to the 

jurisdiction of the tribe, absent objection by either parent, upon the 

petition of either parent or the Indian custodian or the Indian 

child’s tribe: Provided, that such transfer shall be subject to 

declination by the tribal court of such tribe.

(c) State court proceedings; intervention. In any State court 

proceeding for the foster care placement of, or termination of 

parental rights to, an Indian child, the Indian custodian of the child 

and the Indian child’s tribe shall have a right to intervene at any 

point in the proceeding.

(d) Full faith and credit to public acts, records, and judicial 

proceedings of Indian tribes. The United States, every State, every 
Indian Child Welfare Act 151

territory or possession of the United States, and every Indian tribe 

shall give full faith and credit to the public acts, records, and 

judicial proceedings of any Indian tribe applicable to Indian child 

custody proceedings to the same extent that such entities give full 

faith and credit to the public acts, records, and judicial proceedings 

of any other entity.

25 U.S.C. § 1912 Pending court proceedings 

(a) Notice; time for commencement of proceedings; additional time 

for preparation. In any involuntary proceeding in a State court, 

where the court knows or has reason to know that an Indian child 

is involved, the party seeking the foster care placement of, or 

termination of parental rights to, an Indian child shall notify the 

parent or Indian custodian and the Indian child’s tribe, by 

registered mail with return receipt requested, of the pending 

proceedings and of their right of intervention. If the identity or 

location of the parent or Indian custodian and the tribe cannot be 

determined, such notice shall be given to the Secretary in like 

manner, who shall have fifteen days after receipt to provide the 

requisite notice to the parent or Indian custodian and the tribe. No 

foster care placement or termination of parental rights proceeding 

shall be held until at least ten days after receipt of notice by the 

parent or Indian custodian and the tribe or the Secretary: Provided, 

That the parent or Indian custodian or the tribe shall, upon request,

be granted up to twenty additional days to prepare for such 

proceeding.

(b) Appointment of counsel. In any case in which the court 

determines indigency, the parent or Indian custodian shall have 

the right to court-appointed counsel in any removal, placement, or 

termination proceeding. The court may, in its discretion, appoint 

counsel for the child upon a finding that such appointment is in the 

best interest of the child. Where State law makes no provision for 

appointment of counsel in such proceedings, the court shall 

promptly notify the Secretary upon appointment of counsel, and 
152 Indian Child Welfare Act

the Secretary, upon certification of the presiding judge, shall pay 

reasonable fees and expenses out of funds which may be 

appropriated pursuant to the Act of November 2, 1921 (42 Stat. 

208; 25 U.S.C. 13).

(c) Examination of reports or other documents. Each party to a 

foster care placement or termination of parental rights proceeding 

under State law involving an Indian child shall have the right to 

examine all reports or other documents filed with the court upon 

which any decision with respect to such action may be based.

(d) Remedial services and rehabilitative programs; preventive 

measures. Any party seeking to effect a foster care placement of, 

or termination of parental rights to, an Indian child under State law 

shall satisfy the court that active efforts have been made to provide 

remedial services and rehabilitative programs designed to prevent 

the breakup of the Indian family and that these efforts have proved 

unsuccessful.

(e) Foster care placement orders; evidence; determination of 

damage to child. No foster care placement may be ordered in such 

proceeding in the absence of a determination, supported by clear 

and convincing evidence, including testimony of qualified expert 

witnesses, that the continued custody of the child by the parent or 

Indian custodian is likely to result in serious emotional or physical 

damage to the child.

(f) Parental rights termination orders; evidence; determination of 

damage to child. No termination of parental rights may be ordered 

in such proceeding in the absence of a determination, supported 

by evidence beyond a reasonable doubt, including testimony of 

qualified expert witnesses, that the continued custody of the child 

by the parent or Indian custodian is likely to result in serious 

emotional or physical damage to the child.
Indian Child Welfare Act 153

25 U.S.C. § 1913 Parental rights; voluntary termination 

(a) Consent; record; certification matters; invalid consents. Where 

any parent or Indian custodian voluntarily consents to a foster 

care placement or to termination of parental rights, such consent 

shall not be valid unless executed in writing and recorded before 

a judge of a court of competent jurisdiction and accompanied by 

the presiding judge’s certificate that the terms and consequences 

of the consent were fully explained in detail and were fully 

understood by the parent or Indian custodian. The court shall also 

certify that either the parent or Indian custodian fully understood 

the explanation in English or that it was interpreted into a 

language that the parent or Indian custodian understood. Any 

consent given prior to, or within ten days after, birth of the Indian 

child shall not be valid.

(b) Foster care placement; withdrawal of consent. Any parent or 

Indian custodian may withdraw consent to a foster care placement 

under State law at any time and, upon such withdrawal, the child 

shall be returned to the parent or Indian custodian.

(c) Voluntary termination of parental rights or adoptive placement; 

withdrawal of consent; return of custody. In any voluntary 

proceeding for termination of parental rights to, or adoptive 

placement of, an Indian child, the consent of the parent may be 

withdrawn for any reason at any time prior to the entry of a final 

decree of termination or adoption, as the case may be, and the 

child shall be returned to the parent.

(d) Collateral attack; vacation of decree and return of custody; 

limitations. After the entry of a final decree of adoption of an Indian 

child in any State court, the parent may withdraw consent thereto 

upon the grounds that consent was obtained through fraud or 

duress and may petition the court to vacate such decree. Upon a 

finding that such consent was obtained through fraud or duress, 

the court shall vacate such decree and return the child to the 

parent. No adoption which has been effective for at least two years 
154 Indian Child Welfare Act

may be invalidated under the provisions of this subsection unless 

otherwise permitted under State law.

25 U.S.C. § 1914 Petition to court of competent jurisdiction 

to invalidate action upon showing of certain violations 

Any Indian child who is the subject of any action for foster care 

placement or termination of parental rights under State law, any 

parent or Indian custodian from whose custody such child was 

removed, and the Indian child’s tribe may petition any court of 

competent jurisdiction to invalidate such action upon a showing 

that such action violated any provision of sections 101, 102, and 

103 of this Act [25 U.S.C. §§ 1911-1913].

25 U.S.C. § 1915 Placement of Indian children

(a) Adoptive placements; preferences. In any adoptive placement 

of an Indian child under State law, a preference shall be given, in 

the absence of good cause to the contrary, to a placement with

(1) a member of the child’s extended family;

 (2) other members of the Indian child’s tribe; or

 (3) other Indian families.

(b) Foster care or preadoptive placements; criteria; preferences. 

Any child accepted for foster care or preadoptive placement shall 

be placed in the least restrictive setting which most approximates 

a family and in which his special needs, if any, may be met. The 

child shall also be placed within reasonable proximity to his or her 

home, taking into account any special needs of the child. In any 

foster care or preadoptive placement, a preference shall be given, 

in the absence of good cause to the contrary, to a placement with—

(i) a member of the Indian child’s extended family;

(ii) a foster home licensed, approved, or specified by the 

Indian child’s tribe;
Indian Child Welfare Act 155

(iii) an Indian foster home licensed or approved by an 

authorized non-Indian licensing authority; or

(iv) an institution for children approved by an Indian tribe or 

operated by an Indian organization which has a program 

suitable to meet the Indian child’s needs.

(c) Tribal resolution for different order of preference; personal 

preference considered; anonymity in application of preferences. In 

the case of a placement under subsection (a) or (b) of this section, 

if the Indian child’s tribe shall establish a different order of 

preference by resolution, the agency or court effecting the 

placement shall follow such order so long as the placement is the 

least restrictive setting appropriate to the particular needs of the 

child, as provided in subsection (b) of this section. Where 

appropriate, the preference of the Indian child or parent shall be 

considered: Provided that where a consenting parent evidences a 

desire for anonymity, the court or agency shall give weight to such 

desire in applying the preferences.

(d) Social and cultural standards applicable. The standards to be 

applied in meeting the preference requirements of this section shall 

be the prevailing social and cultural standards of the Indian 

community in which the parent or extended family resides or with 

which the parent or extended family members maintain social and 

cultural ties.

(e) Record of placement; availability. A record of each such 

placement, under State law, of an Indian child shall be maintained 

by the State in which the placement was made, evidencing the 

efforts to comply with the order of preference specified in this 

section. Such record shall be made available at any time upon the 

request of the Secretary or the Indian child’s tribe.
156 Indian Child Welfare Act

25 U.S.C. §1916 Return of custody 

(a) Petition; best interests of child. Notwithstanding State law to 

the contrary, whenever a final decree of adoption of an Indian child 

has been vacated or set aside or the adoptive parents voluntarily 

consent to the termination of their parental rights to the child, a 

biological parent or prior Indian custodian may petition for return 

of custody and the court shall grant such petition unless there is a 

showing, in a proceeding subject to the provisions of section 102 

of this Act [25 U.S.C. § 1912], that such return of custody is not in 

the best interests of the child.

(b) Removal from foster care home; placement procedure. 

Whenever an Indian child is removed from a foster care home or 

institution for the purpose of further foster care, preadoptive, or 

adoptive placement, such placement shall be in accordance with 

the provisions of this Act [25 U.S.C. §§ 1901 et seq.], except in the 

case where an Indian child is being returned to the parent or 

Indian custodian from whose custody the child was originally 

removed.

25 U.S.C. §1917 Tribal affiliation information and other 

information for protection of rights from tribal relationship; 

application of subject of adoptive placement; disclosure by 

court

Tribal affiliation information and other information of protection of 

rights from tribal relationship; application of subject of adoptive 

placement; disclosure by court 

Upon application by an Indian individual who has reached the age 

of eighteen and who was the subject of an adoptive placement, the 

court which entered the final decree shall inform such individual 

of the tribal affiliation, if any, of the individual’s biological parents 

and provide such other information as may be necessary to protect 

any rights flowing from the individual’s tribal relationship.
Indian Child Welfare Act 157

25 U.S.C. § 1918 Reassumption of jurisdiction over child 

custody proceedings 

(a) Petition; suitable plan; approval by Secretary. Any Indian tribe 

which became subject to State jurisdiction pursuant to [Public Law 

280] the provisions of the Act of August 15, 1953 (67 Stat. 588), as 

amended by title IV of the Act of April 11, 1968 (82 Stat. 73, 78), 

or pursuant to any other Federal law [, may reassume jurisdiction 

over child custody proceedings. Before any Indian tribe may 

reassume jurisdiction over Indian child custody proceedings, such 

tribe shall present to the Secretary for approval a petition to 

reassume such jurisdiction which includes a suitable plan to 

exercise such jurisdiction.

(b) Criteria applicable to consideration by Secretary; partial 

retrocession.

(1) In considering the petition and feasibility of the plan of a 

tribe under subsection (a), the Secretary may consider, 

among other things:

(i) whether or not the tribe maintains a membership 

roll or alternative provision for clearly identifying the 

persons who will be affected by the reassumption of 

jurisdiction by the tribe;

(ii) the size of the reservation or former reservation 

area which will be affected by retrocession and 

reassumption of jurisdiction by the tribe;

(iii) the population base of the tribe, or distribution of 

the population in homogeneous communities or 

geographic areas; and

(iv) the feasibility of the plan in cases of multitribal 

occupation of a single reservation or geographic area.
158 Indian Child Welfare Act

(2) In those cases where the Secretary determines that the 

jurisdictional provisions of section 101(a) of this Act [25 

U.S.C. § 1911(a)] are not feasible, he is authorized to accept 

partial retrocession which will enable tribes to exercise 

referral jurisdiction as provided in section 101(b) of this Act 

[25 U.S.C. § 1911(b)], or, where appropriate, will allow them 

to exercise exclusive jurisdiction as provided in section 

101(a) [25 U.S.C. § 1911(a)] over limited community or 

geographic areas without regard for the reservation status 

of the area affected.

(c) Approval of petition; publication in Federal Register; notice; 

reassumption period; correction of causes for disapproval. If the 

Secretary approves any petition under subsection (a), the 

Secretary shall publish notice of such approval in the Federal 

Register and shall notify the affected State or States of such 

approval. The Indian tribe concerned shall reassume jurisdiction 

sixty days after publication in the Federal Register of notice of 

approval. If the Secretary disapproves any petition under 

subsection (a), the Secretary shall provide such technical 

assistance as may be necessary to enable the tribe to correct any 

deficiency which the Secretary identified as a cause for 

disapproval.

(d) Pending actions or proceedings unaffected. Assumption of 

jurisdiction under this section shall not affect any action or 

proceeding over which a court has already assumed jurisdiction, 

except as may be provided pursuant to any agreement under 

section 109 of this Act [25 U.S.C. § 1919].

25 U.S.C. § 1919 Agreements between States and Indian 

tribes 

(a) Subject coverage. States and Indian tribes are authorized to 

enter into agreements with each other respecting care and custody 

of Indian children and jurisdiction over child custody proceedings, 

including agreements which may provide for orderly transfer of 
Indian Child Welfare Act 159

jurisdiction on a case-by-case basis and agreements which 

provide for concurrent jurisdiction between States and Indian tribe.

(b) Revocation; notice; actions or proceedings unaffected. Such 

agreements may be revoked by either party upon one hundred and 

eighty days’ written notice to the other party. Such revocation shall 

not affect any action or proceeding over which a court has already 

assumed jurisdiction, unless the agreement provides otherwise.

25 U.S.C. § 1920 Improper removal of child from custody; 

declination of jurisdiction; forthwith return of child: danger 

exception 

Where any petitioner in an Indian child custody proceeding before 

a State court has improperly removed the child from custody of the 

parent or Indian custodian or has improperly retained custody 

after a visit or other temporary relinquishment of custody, the court 

shall decline jurisdiction over such petition and shall forthwith 

return the child to his parent or Indian custodian unless returning 

the child to his parent or custodian would subject the child to a 

substantial and immediate danger or threat of such danger.

25 U.S.C. § 1921 Higher State or Federal standard 

applicable to protect rights of parent or Indian custodian of 

Indian child 

In any case where State or Federal law applicable to a child 

custody proceeding under State or Federal law provides a higher 

standard of protection to the rights of the parent or Indian 

custodian of an Indian child than the rights provided under this 

title [25 U.S.C. §§ 1911-1923], the State or Federal court shall 

apply the State or Federal standard.

25 U.S.C. § 1922 Emergency removal or placement of child; 

termination; appropriate action 

Nothing in this title [25 U.S.C. §§ 1911-1923] shall be construed to 

prevent the emergency removal of an Indian child who is a resident 
160 Indian Child Welfare Act

of or is domiciled on a reservation, but temporarily located off the 

reservation, from his parent or Indian custodian or the emergency 

placement of such child in a foster home or institution, under 

applicable State law, in order to prevent imminent physical 

damage or harm to the child. The State authority, official, or agency 

involved shall insure that the emergency removal or placement 

terminates immediately when such removal or placement is no 

longer necessary to prevent imminent physical damage or harm to 

the child and shall expeditiously initiate a child custody 

proceeding subject to the provisions of this title [25 U.S.C. §§ 1911-

1923], transfer the child to the jurisdiction of the appropriate 

Indian tribe, or restore the child to the parent or Indian custodian, 

as may be appropriate. 

5.3 Exclusive Jurisdiction, Full Faith and Credit

In Public Law 280 states, state courts generally have jurisdiction. 

The legislative history of ICWA supports the view that Congress 

intended Public Law 280 states to retain jurisdiction over all child 

custody proceedings as defined in ICWA because tribes in Public 

Law 280 states can seek to reassume exclusive jurisdiction over 

child custody proceedings. 

In passing ICWA, Congress recognized that Public Law 280 states 

should retain, at least initially, jurisdiction over child 

dependency proceedings until the tribes had the capability to 

reassume exclusive jurisdiction.

In Doe v. Mann,5 the Elem Indian Colony was located in a Public 

Law 280 state but never petitioned for reassumption of 

jurisdiction over child custody proceedings. The court found that 

the explicit references to Public Law 280 in ICWA demonstrated

that Congress intended Public Law 280 states to have jurisdiction 

over Indian child dependency proceedings until tribes resumed 

exclusive jurisdiction under §1918. 
Indian Child Welfare Act 161

The court declined to hold that a Public Law 280 state could not 

assert jurisdiction, and noted that the tribe could submit a 

petition to reassume jurisdiction and that Congress could 

recognize the tribal sovereignty interests through Congressional 

action.

In states other than Public Law 280 states, tribal courts hold 

exclusive jurisdiction under 25 U.S.C. § 1911 over any child 

custody proceeding involving an Indian child who resides or is 

domiciled within the reservation of such tribe. In addition, the 

tribal court maintains exclusive jurisdiction over an Indian child 

who is a ward of the tribal court, regardless of the residence or 

domicile of the child. 

The most critical step, therefore, is to determine that a child is 

an Indian child; otherwise ICWA does not apply. When a state 

court has reason to believe a child involved in a child-custody 

proceeding is an Indian, the court shall seek verification of the 

child’s status either from the Bureau of Indian Affairs or the 

child’s tribe. 

The determination that a child either is or is not a member of that 

tribe or eligible for enrollment is conclusive. Absent a contrary 

determination by the child’s alleged tribe, a determination by the 

Bureau of Indian Affairs that a child is or is not an Indian child 

is conclusive. Circumstances under which a state court has 

reason to believe a child involved in a custody proceeding is an 

Indian include but are not limited to the following:

a. Any party to the case, Indian tribe, Indian organization 

or public or private agency informs the court that the 

child is an Indian child;

b. Any public or state licensed agency involved in child 

protection services or family support has discovered 

information which suggests that the child is an Indian 

child;
162 Indian Child Welfare Act

c. The child who is the subject of the proceeding gives the 

court reason to believe he or she is an Indian child;

d. The residence or the domicile of the child, his or her 

biological parents, or the Indian custodian is known by 

the court to be or is shown to be a predominantly Indian 

community; or

e. An officer of the court involved in the proceeding has 

knowledge that the child may be an Indian child.

A state court is required under 25 U.S.C. § 1911 to transfer a 

proceeding for foster care placement or termination of parental 

rights to an Indian child who is not domiciled within the 

reservation of such tribe, unless good cause is shown as to why 

the transfer should not take place. 

Either of the parents, the tribe, or the child’s Indian custodian 

may petition the State court for the transfer of jurisdiction to 

tribal court. Either parent may also object to the transfer to tribal 

court but must show “good cause” as to why the transfer to tribal 

court should not take place. The tribal court may also choose to 

decline jurisdiction over the case. This declination of jurisdiction 

would cause the case to remain in state court.

Finally, ICWA requires that the U.S. government, state 

governments and other Indian tribes give full faith and credit to 

the public acts, records, and judicial proceedings of any Indian 

tribe applicable to Indian child custody proceedings.

5.4 Leading ICWA Cases

As of 2015, the only Supreme Court case involving ICWA is 

Mississippi Band of Choctaw Indians v. Holyfield.6 In Holyfield, A 

Choctaw woman, domiciled on the reservation, left the 

reservation to give birth to her twin, illegitimate children. 
Indian Child Welfare Act 163

She and the father of her children, a Choctaw man, also 

domiciled on the reservation, signed consents in state chancery 

court allowing the adoption of the children by non-Indians. 

The Choctaw tribe filed a motion to vacate the adoption of the 

twins, claiming that it had exclusive jurisdiction over the 

children’s adoption under ICWA. The chancery court dismissed 

the motion and was affirmed by the state supreme court. 

The case reached the U.S. Supreme Court, which held that 

because the children’s parents were domiciled on the reservation, 

the children were domicilaries under ICWA. The fact that the 

parents left the reservation prior to the birth of the twins did not 

change the children’s domicile. The Court found that both the 

parents and the appellant (the tribe) had an equal interest in the 

placement of the children. 

Thus, the tribe had exclusive jurisdiction over the children’s 

adoption. Tribal jurisdiction could not be defeated by the 

individual actions of tribal members. The Court found that ICWA

is “based on the fundamental assumption that it is in the Indian 

child’s best interest that its relationship to the Tribe be 

protected.”

The Court vacated the adoption decree finding that the twins 

were domiciled in the Choctaw reservation and therefore the 

Choctaw Tribal Court had exclusive jurisdiction over the matter. 

Once the Supreme Court had vacated the adoption decree, the 

matter was left to be decided in the Choctaw Tribal Court. The 

Choctaw Tribal Court allowed the Holyfields to keep custody of 

the twins.

In Adoptive Couple v. Baby Girl,7 the Supreme Court held ICWA

was not applicable to a non-custodial Indian father. As Holyfield

is the only ICWA case decided by the Supreme Court, lower 

federal courts have defined many of ICWA’s contours.
164 Indian Child Welfare Act

In Sandman v. Dakota,8 an Indian mother’s case for return of 

her children was dismissed for lack of jurisdiction where 5 

children were taken from her custody by tribal social worker 

when she was arrested for assault and battery and adjudicated 

dependent by tribal judge. It was proper for the court to place the 

children with a maternal aunt and uncle, because 25 U.S.C. § 

1911(a) gives Indian tribes exclusive jurisdiction to determine 

custody of Indian children in child welfare situations such as 

proceeding that gave rise to this action.

In Navajo Nation v. Norris,9 state court had concurrent 

jurisdiction with tribal court over Indian baby’s adoption where 

birth parents were domiciled off-reservation and voluntarily 

repudiated application of both Indian Child Welfare Act and tribal 

court jurisdiction. 

In Norris, the child’s birth father was a full-blood member of the 

Navajo Nation and an enrolled member of the Navajo Nation. The 

child’s mother was one-half Navajo and one-half Yakama, and an 

enrolled member of the Yakama Nation. They moved outside of

the Yakama reservation onto non-tribal land, discovered they 

were expecting, and met with an adoption attorney. Prior to 

meeting with the adoption attorney, the parents were unaware of 

the existence of ICWA.

One day after the child was born, the parents transferred 

physical custody of the child to adoptive parents and executed 

custody documents that contained an objection to the 

application of ICWA and to tribal court jurisdiction.

The tribes attempted to invalidate the adoption under ICWA, but 

their suit was dismissed when the state court considered the 

provisions of ICWA and made a reasoned determination that the 

parents’ off-reservation domicile conferred concurrent 

jurisdiction upon the state court; the Ninth Circuit found that 

the district court’s dismissal of the tribe’s did no harm to the 

dictates embodied in ICWA.
Indian Child Welfare Act 165

In Native Village of Stevens v. Smith,10 a tribal counsel decision 

that it was in a minor child’s best interest to remove the child 

from his home and place child under tribal custody must be given 

full faith and credit by the state under 25 U.S.C. § 1911(d). For 

purposes of tribe’s eligibility for federal foster care payments 

under 42 U.S.C. § 672(a), the child’s removal was result of judicial 

determination.

5.5 Notice, Time, Invalidation (§§ 1912-1914)

ICWA requires that in any state court proceeding involving an 

Indian child, the party seeking the foster care, or placement 

thereof, shall give notice to the parent, or Indian custodian, and 

Indian tribe by registered mail of the pending proceedings and 

their right to intervene. 

If the parent or Indian custodian is found to be indigent, the 

court shall appoint counsel for that party. The court also has the 

right to appoint counsel for the child upon a finding that doing 

so would be in the best interest of the child. Under ICWA, each 

party has a right to examine all reports or other documents 

associated with the pending action.

Remedial services and rehabilitative programs must have been 

actively pursued and proved unsuccessful before seeking 

adoption to prevent the breakup of the Indian family. Also, no 

foster care placement may take place without a determination—

supported by clear and convincing evidence—that continued 

custody of the child by the parent or Indian custodian is likely to 

result in serious emotional or physical damage to the child. 

Finally, no termination of parental rights may be ordered in the 

absence of a determination—supported by evidence beyond a 

reasonable doubt—that the continued custody of the child by the 

parent or Indian custodian is likely to result in serious emotional 

or physical damage to the child.
166 Indian Child Welfare Act

A parent or Indian custodian of a child may voluntarily consent 

to a foster care placement or a termination of parental rights. 

However, such consent shall not be valid unless it is executed in 

writing and recorded before a judge in a court that has 

jurisdiction over the matter. 

The court must certify that the terms and consequences of the 

consent were fully explained in detail and were fully understood 

by the parent or Indian custodian. The court must also certify 

that either the parent or the Indian custodian fully understood 

the explanation in English or that it was interpreted into a 

language that the parent or Indian custodian understood. Any 

consent given prior to, or within ten days after, birth of the Indian 

child is not valid.

The parent, Indian custodian or Indian tribe may petition the 

court to invalidate a prior placement or adoption. No adoption 

which has been effective for at least two years may be invalidated 

unless otherwise permitted under state law. The petition to 

invalidate an adoption may be based on any action under 25 

U.S.C. §§ 1911-1913.

In M. v. H.,11 the court held that if a party wishes to defeat the 

biological parent’s petition for return of custody, he or she must 

prove that such return is not in the child’s best interest by 

showing (1) that remedial and rehabilitative programs designed 

to prevent the breakup of Indian family had been implemented 

without success; and (2) that such return of custody is likely to 

result in serious harm to the child. The serious harm element 

must be proved beyond reasonable doubt and must be 

established by testimony of qualified expert witnesses.

5.6 Order Of Preference (§§ 1915 -1916)

Any adoptive placement of an Indian child under state law must 

follow the preferences in §§ 1915 -1916: first placing the child 
Indian Child Welfare Act 167

with a member of his or her extended family, then other members 

of the Indian child’s tribe, and finally other Indian families. 

Deviation from this order is only allowed upon a showing of good 

cause. However, the order of preference can be changed by 

resolution of the Indian child’s tribe.

A biological parent or Indian custodian may petition the court for 

return of the child whenever a final decree of adoption of an 

Indian child has been vacated or set aside, or the adoptive 

parents voluntarily consent to the termination of their parental 

rights to the child. The court is required to grant the petition 

unless there is a showing that such return of custody is not in 

the best interest of the child.

5.7 Notification At Eighteen (§§ 1917-1922)

An Indian individual who was the subject of an adoptive 

placement has the right under §1917 to petition the court to 

learn the identity of his or her biological parents as well as their 

related tribal affiliation. The individual can petition the court for 

this information once he or she turns eighteen years of age. The 

court must provide the requested information to the individual. 

This notification requirement contrasts with that of adoptive nonIndian children. In general, non-Indian adoption records are 

kept confidential, even from the adopted child once he or she 

becomes an adult.

States and Indian tribes are authorized under §1918 to enter into 

agreements regarding the custody, care and jurisdiction of Indian 

child-care cases. However, such agreements can be revoked by 

either party. Under §1920, state courts must relinquish 

jurisdiction of an Indian child in a custody proceeding if the 

petitioner to the court has improperly retained or obtained 

custody of the Indian child. 
168 Indian Child Welfare Act

The only exception to this requirement is when the court finds 

that returning the child to his parent or custodian would subject 

the child to a substantial and immediate danger or threat of such 

danger.

Federal, state and tribal courts are required under §1921 to 

apply the higher standard of protection for the rights of the 

parent or Indian custodian when dealing with the placement of 

an Indian child. 

Any sovereign may remove an Indian child from his parents 

under §1922 if the child is in imminent physical danger of harm. 

However, the removing sovereign must expeditiously initiate a 

child custody proceeding in order to take further action.
1 See Nizhone Meza, Indian Education: Maintaining Tribal 

Sovereignty Through Native American Culture and Language 

Preservation, 2015 B.Y.U. Educ. & L.J. 353, 354 (2015).

2 See 25 U.S.C. §1901 et. seq.

3 See In re H.D., 343 Ill. App. 3d 483, 278 Ill. Dec. 194, 797 N.E.2d 

1112 (4th Dist. 2003).

4 See Dwayne P. v. Superior Court, 103 Cal. App. 4th 247, 126 

Cal. Rptr. 2d 639 (4th Dist. 2002), review denied, (Jan. 15, 2003).

5 415 F.3d 1038 (9th Cir. 2005).

6 490 U.S. 30 (1989).

7 570 U.S. ___ (2013).

8 816 F Supp. 448 (W.D. Mich. 1992).

9 331 F.3d. 1041 (9th Cir.2003).

10 770 F2d 1486 (9th Cir. 1986) cert. den. 106 S Ct 1640 

(1986).

11 651 P.2d 1170 (Alaska 1982), cert. den. 103 S. Ct. 1983 

(1983).

 
Juvenile Law 169

Chapter Six

Juvenile Law

6.1 Early Juvenile Justice Models .............................169

6.2 Leading Cases on Juvenile Rights........................170

6.3 Passage of the JJDPA ..........................................174

6.4 Arrest Requirements under JJDPA ......................175

6.5 Jurisdiction in Juvenile Cases.............................180

6.6 Federal Jurisdiction ............................................183

6.7 Delinquency Proceedings.....................................184

6.8 District Court Proceedings ..................................185

6.1 Early Juvenile Justice Models

At the onset of nineteenth-century American jurisprudence, 

juvenile justice was strongly influenced by the legal doctrine of 

parens patriae (a Latin term that means “parent of the country”). 

The parens patriae doctrine allowed the state to serve as the 

guardian (or parent) of juveniles. In line with their “parental” role, 

juvenile courts emphasized an informal, non-adversarial, and 

flexible approach to cases. Cases were treated as civil 

(noncriminal) actions, and the ultimate goal was to guide a 

juvenile offender toward life as a responsible, law-abiding adult.

Many of our modern juvenile law phrases – “delinquent” instead 

of “defendant,” “detention” rather than “arrest,” “adjudication” 

rather than “trial,” “commitment” instead of “incarceration” –

come from these early court efforts. Since the focus was on 

rehabilitation instead of confinement or punishment, there were 

few procedural rules that the courts were required to follow.

By 1925, nearly two-thirds of the states had adopted, in one form 

or another, a separate juvenile justice system that followed this 

model. In 1929, President Herbert Hoover established the 

Wickersham Commission for the purpose of investigating the 
170 Juvenile Law

causes of criminal activity and to make recommendations for 

appropriate public policy in the wake of Prohibition.

The Commission reported that in the state system a “child 

offender is generally dealt with on a noncriminal basis and has 

been protected from prosecution and conviction for crime...[but 

the child offender] approaches the courts of the United States on 

the same footing as the adult. The concept of juvenile 

delinquency is unknown to the Federal Penal Code.”1

By 1931, federal attention was turned toward eliminating 

organized crime rather than prosecuting juvenile offenders. The 

Attorney General recommended that the Department of Justice 

be authorized to return juveniles charged with violating federal 

law to the juvenile authorities of their home state, with discretion 

to prosecute in capital cases and on areas of jurisdiction unique 

to the federal government (especially Indian Country).

Congress responded by passing the Federal Juvenile 

Delinquency Act of 1938. The 1938 Act, like its state 

counterparts, provided that a juvenile (defined as anyone under 

the age of eighteen) charged with violating federal law would be 

processed as a delinquent rather than tried as an adult criminal.

A juvenile found delinquent under the 1938 Act would either be 

placed on probation "for a period not exceeding his minority" or 

committed to the "custody of the Attorney General," who could 

subsequently place the youth in "any public or private agency or 

foster home for . . . custody, care, subsistence, education, and 

training."

6.2 Leading Cases on Juvenile Rights

Thirty years after the Act was passed, the United States Supreme 

Court heard a number of cases that would redefine proceedings 
Juvenile Law 171

in the juvenile courts and bring juvenile proceedings more 

squarely in line with proceedings involving adult offenders. 

In Kent v. United States,2 a sixteen-year old with a past history of 

housebreaking and purse snatching was charged in the District 

of Columbia with housebreaking, robbery, and rape. The juvenile 

court had exclusive jurisdiction under the District of Columbia 

Code, and the Supreme Court previously held that "it is implicit 

in [the Juvenile Court] scheme that noncriminal treatment is to 

be the rule – and the adult criminal treatment the exception 

which must be governed by the particular factors of individual 

cases."3 Given the serious nature of the charge, however, the 

juvenile was transferred to adult court without any hearing or 

other aspects of due process. He appealed, and the case was 

heard by the Supreme Court.

As to the lack of due process in Kent, the “courts have relied on 

the premise that [juvenile] proceedings are ‘civil’ in nature, and 

not criminal” as reasons not to afford juveniles the right to bail, 

to indictment by grand jury, to a speedy and public trial, to trial 

by jury, to immunity against self-incrimination, to confrontation 

of his accusers, and right to counsel.

The Supreme Court found in Kent that “there may be grounds for 

concern that the child receives the worst of both worlds: that he 

gets neither the protections accorded to adults nor the solicitous 

care and regenerative treatment postulated for children” and held 

that "that the [transfer or waiver] hearing must measure up to 

the essentials of due process and fair treatment.”

Shortly after Kent was decided, the Court decided In re Gault.4 In 

Gault, a juvenile who had previously been on probation for a 

minor theft made an obscene phone call to his neighbor. The 

juvenile was arrested without notice to his parents, was held 

without arraignment, and was denied notice of the charges. He 
172 Juvenile Law

was also not provided counsel or advised of his rights against 

self-incrimination.

Following his arrest, he was subjected to a formal hearing in 

which no witnesses appeared. The arresting officer testified 

before a judge that “said minor is under the age of eighteen years, 

and is in need of the protection of this Honorable Court, [and 

that] said minor is a delinquent minor,” the judge committed 

Gault as a juvenile delinquent to the State Industrial School "for 

the period of his minority [that is, until 21], unless sooner 

discharged by due process of law.”

As in Kent, the juvenile court at issue had virtually unlimited 

discretion, and did not afford the following basic rights that were 

available to adults: notice of the charges; right to counsel; right 

to confrontation and cross-examination; privilege against selfincrimination; right to a transcript of the proceedings; and right 

to appellate review.

If the juvenile was tried as an adult for the same crime, he would 

be subject to a fine of not less than $5 and not more than $50, 

or imprisonment for not more than two months – instead, he was 

sentenced to six years in a juvenile facility.

The Supreme Court reversed the juvenile’s commitment, and 

held that when juvenile proceedings may result in confinement 

or incarceration there must be due process: constitutional 

privilege against self-incrimination is applicable in the case of 

juveniles as it is with respect to adults; that adequate written 

notice must be afforded to juveniles and to their parents or 

guardian; that juveniles have a right to be represented by counsel 

and, if they are unable to afford counsel, to have counsel 

appointed; and that juveniles must be afforded the rights of 

confrontation and sworn testimony of witnesses available for 

cross-examination.
Juvenile Law 173

The Supreme Court decided In re Winship shortly after.5 Holding 

that the Due Process Clause of the Constitution required “the 

essentials of due process and fair treatment during the 

adjudicatory stage when a juvenile is charged with an act that 

would constitute a crime if committed by an adult,” the Court 

required charges that may result in a period of confinement to be 

proved beyond a reasonable doubt.

In re Winship followed an adjudicatory hearing conducted 

pursuant to a state juvenile court act. In Winship, a family court 

judge found that a 12-year-old boy had entered a locker and 

stolen $112 from a woman’s pocketbook. The petition to the court 

that the juvenile was delinquent also alleged that the theft, "if 

done by an adult, would constitute the crime or crimes of 

Larceny."

The state judge acknowledged that the proof offered in the 

petition might not establish guilt beyond a reasonable doubt as 

required by the Fourteenth Amendment, but held that the state 

juvenile court act permitted a lesser burden of proof because 

"[a]ny determination at the conclusion of [an adjudicatory] 

hearing that a [juvenile] did an act or acts must be based on a 

preponderance of the evidence.” 

The juvenile was adjudicated as a delinquent and committed for 

a period of six years by the state judge. The Supreme Court 

reversed the commitment, noting “the constitutional safeguard of 

proof beyond a reasonable doubt is as much required during the 

adjudicatory stage of a delinquency proceeding as are those 

constitutional safeguards applied in Gault—notice of charges, 

right to counsel, the rights of confrontation and examination, and 

the privilege against self-incrimination.”
174 Juvenile Law

Note, however, that juveniles do not have a right to a jury trial. 

In McKeiver v. Pennsylvania,6 the Supreme Court affirmed the 

Pennsylvania Supreme Court in a consolidated case. In the 

consolidated case – a case arising from two different incidents 

but decided together – a sixteen-year-old was charged with 

robbery, larceny, and receiving stolen goods (all felonies under 

Pennsylvania law) and a fifteen-year-old was charged with 

assault and battery on a police officer and conspiracy 

(misdemeanors under Pennsylvania law). Both juveniles 

requested a jury trial, were denied, and appealed to the Supreme 

Court of Pennsylvania to determine the question of “whether 

there is a constitutional right to a jury trial in juvenile court.” The 

Pennsylvania Supreme Court held that there was no such right, 

and was affirmed by the United States Supreme Court. The 

applicable due process standard under Gault and Winship is 

fundamental fairness. As other adjudicative processes are fair 

without trial by jury, the Court concluded that trial by jury in the 

juvenile court’s adjudicative stage is not a constitutional 

requirement.

Kent, Gault, and Winship demonstrated to Congress a need for 

closer alignment of policies and procedures in the District of 

Columbia, the several states, U.S. territories, possessions, and 

tribal governments; the result was a comprehensive juvenile 

justice statute.

6.3 Passage of the JJDPA

To improve outcomes for youth and address inconsistencies 

between the rights of adults and juveniles, Congress passed the 

Juvenile Justice and Delinquency Prevention Act (JJDPA) in 1974.

When originally passed, the JJDPA focused largely on preventing 

juvenile delinquency and on rehabilitating juvenile offenders. 

Subsequent revisions to the act added sanctions and 
Juvenile Law 175

accountability measures to some existing federal grant programs, 

and new grant programs to the act’s purview.

During the 1980s and 1990s, most states revised their juvenile 

justice systems to include more punitive measures and to allow 

juveniles to be tried as adults in more instances. In 1997, 

Congress created the Juvenile Accountability Block Grant (JABG),

allowing the Attorney General to make grants to states and units 

of local government to strengthen their juvenile justice systems 

and foster accountability within their juvenile populations. 

Through its reauthorizations in 1988 and most recently in 2002, 

the JJDPA has expanded into a federal-state partnership with 

funding set aside for Indian tribes and Congress has essentially 

followed the lead of the states to include a greater emphasis on 

punishing juveniles for their crimes. 

This has marked a significant change in the philosophy of the 

juvenile justice system, both at the state level and at the federal 

level, from its original conception. Juvenile justice in general has 

thus moved away from emphasizing the rehabilitation of 

juveniles and toward a greater reliance on sanctioning them for 

their crimes.

With JJDPA providing federal funding for state and tribal juvenile 

justice programs, juvenile matters are often handled by state or 

tribal authorities whenever possible. The federal government has 

unique jurisdiction over crimes in Indian Country, however, and 

the most serious crimes committed on reservations tend to be 

prosecuted in federal court as a result.

6.4 Arrest Requirements under JJDPA

The requirements placed on federal law enforcement officers 

when arresting juveniles are outlined in the Juvenile Justice and 
176 Juvenile Law

Delinquency Prevention Act. Specifically, 18 U.S.C. §5033 states:

Whenever a juvenile is taken into custody for an alleged act

of juvenile delinquency, the arresting officer shall 

immediately advise such juvenile of his legal rights, in 

language comprehensive to a juvenile, and shall 

immediately notify the Attorney General and the juvenile’s 

parents, guardian, or custodian of such custody. The 

arresting officer shall also notify the parents, guardian, or 

custodian of the rights of the juvenile and of the nature of 

the alleged offense. The juvenile shall be taken before a 

magistrate judge forthwith. In no event shall the juvenile 

be detained for longer than a reasonable period of time 

before being brought before a magistrate judge. 

There are special procedures that must be followed when 

arresting a juvenile: 

• Immediately advise the juvenile of their Miranda rights in 

words that a juvenile can understand.

In Miranda v. Arizona,7 the Supreme Court determined that "in 

order to combat [the pressures surrounding in-custody 

interrogations] and to permit a full opportunity to exercise the 

privilege against self-incrimination, the accused must be 

adequately and effectively apprised of his rights and the exercise 

of those rights must be fully honored."

Whether a waiver is ‘knowing and voluntary’ is a question 

directed to a defendant’s state of mind, which can be inferred 

from his actions and statements."8 Further, as the Supreme 

Court has stated, “the question of waiver must be determined on 

‘the particular facts and circumstances surrounding [the] case, 

including the background, experience, and conduct of the 

accused.’”9 The Court carefully scrutinizes whether a waiver is 
Juvenile Law 177

made knowingly and voluntarily by a juvenile who “is not equal 

to the police in knowledge and understanding of the 

consequences of the questions and answers being recorded and 

who is unable to know how to protect his own interests or how to 

get the benefits of his constitutional rights.”10

With this in mind, the court will look to the totality of the 

circumstances in determining whether the waiver is knowingly 

and voluntarily made.11 If the juvenile understands and waives 

his Miranda rights, statements obtained lawfully and without 

delay in bringing the juvenile before the magistrate judge will be 

admissible in court.

• Immediately notify the nearest Assistant United States 

Attorney (AUSA) of the juvenile’s arrest and the charge(s).

The requirements for arresting juveniles are numerous, 

therefore, whenever practical, an officer who intends or expects 

to arrest a juvenile should first make reasonable attempts to 

obtain the approval and guidance of the nearest Assistant United 

States Attorney (AUSA) before the arrest takes place. There are 

virtually no federally owned and operated pretrial or postconviction juvenile bed spaces, therefore the AUSA needs 

notification of a pending arrest to arrange local contract juvenile 

bed space with the U.S. Marshal.

At an initial appearance before the magistrate, the juvenile will 

likely be released to his parents, guardians, custodians, or other 

responsible party upon the party’s promise to ensure the 

juvenile’s presence at court proceedings. Pretrial detention is 

sometimes ordered if the court determines that detention is 

required to secure the juvenile’s timely appearance in court or to 

ensure his safety or the safety of others.12
178 Juvenile Law

A juvenile who is detained must be housed with similarly situated 

juvenile offenders until he or she is ordered transferred to adult 

status and reaches eighteen or, if prosecuted as a juvenile 

delinquent, until he or she reaches age twenty-one. Notifying the 

AUSA of the juvenile’s arrest and the charge(s) will make the 

process of ensuring a juvenile is taken forthwith to a magistrate 

and that local contract juvenile bed space is available if the need 

for pretrial confinement arises.

• Immediately notify the parents or guardian of the juvenile’s 

arrest, the charges, and the juvenile’s legal rights under 

Miranda. 

The statutory requirement of notification to parents is intended 

to furnish an additional safeguard to insure that the juvenile’s 

basic right to due process is not violated13 but does not 

automatically invalidate a waiver of Miranda rights. The presence 

of parents or counsel is not required for a confession to be valid, 

but requests by parents to communicate and confer with the 

juvenile before questioning should be honored by the police—

even if the conference results in the juvenile declining to waive 

his rights.14

The failure to notify a juvenile’s parents does not require a per se

exclusion of the juvenile’s confession; instead, "the admissibility 

of [the juvenile’s] statements is still a function of whether they 

were knowingly and voluntarily made”15 and is closely examined 

by the courts to see “whether the government’s conduct was so 

egregious as to deprive [the juvenile] of his right to due process 

of law.”16

• Take the juvenile forthwith before a United States 

magistrate judge.
Juvenile Law 179

The requirement of “forthwith” requires more speed than 

“without unnecessary delay,” so that “a magistrate may explain 

and protect the juvenile’s rights - among others, the right against 

compulsory self-incrimination and the right to the assistance of 

counsel.”17

In United States v. Binet,18 a juvenile was detained for four hours 

and was questioned before being brought to a magistrate to be 

arraigned. The juvenile made incriminating statements, which

were suppressed by the court. Even though there was only a fourhour delay before the incriminating statements were made, the 

court held there was no possible investigatory motive for the 

questioning (such as establishing age or identity) and that both 

the delay and prearraignment questioning were solely for the 

purpose of obtaining a confession.

In United States v. DeMarce,19 a juvenile was detained for eighty 

hours. Unlike Binet, the delay was apparently unintentional and 

was not for the purpose of seeking a confession. Even so, the 

juvenile made incriminating statements that were suppressed. In 

most cases, statements made as a result of questioning or 

interrogation before a magistrate may explain the right against 

compulsory self-incrimination and the right to the assistance of 

counsel to a juvenile will likely be suppressed.

• Do not make routine booking photos, fingerprints or media 

releases and do not release any information without a court 

order.

Routine booking photos and fingerprints of juveniles are not 

permitted under 18 U.S.C. § 5038(d), except when there is a 

specific investigatory need. The federal juvenile statutes provide 

for fingerprinting and photographing of juveniles only after a 

finding of guilt for certain types of drug and violent offenses.
180 Juvenile Law

As a result, routine booking photographs and fingerprints should 

not be taken upon arrest of a person known to be a juvenile 

unless they are required for investigative purposes (e.g., where 

the identity, age, or criminal record of the arrestee is not settled). 

Press releases and other publicity identifying the juvenile directly 

or indirectly are not permitted under 18 U.S.C. § 5038, unless 

and until the juvenile is transferred by the court to adult status.20

A juvenile may be arrested on a warrant issued either on a 

complaint or a juvenile information. Where arrest is not needed, 

the court may be asked to issue a summons on the complaint or 

information. In either case, it is advisable to have the complaint 

and/or information placed under seal by the clerk’s office to avoid 

public disclosure of the juvenile’s identity.21

The government should not make public the name or the picture 

of any juvenile (or any reports, documents, fingerprints, and the 

like pertaining to them) without prior approval of the district 

court as required by 18 U.S.C. §§ 5031-5038.

6.5 Jurisdiction in Juvenile Cases

The first inquiry into any case involving a juvenile is whether or 

not the court has jurisdiction to hear the matter. Original 

jurisdiction of a court is the power to hear a case for the first 

time, as opposed to appellate jurisdiction, when a court has the 

power to review a lower court’s decision.

Recall the JJDPA itself is not a grant of original jurisdiction; it is 

a federal statute that in many cases allows the United States to

surrender juvenile offenders to the appropriate legal authorities 

of such State even though the United States had original 

jurisdiction for the underlying offense.
Juvenile Law 181

Nearly every state legislature has extended original jurisdiction 

to state juvenile courts when a federal law has been violated,22

thus juvenile offenders of federal criminal law are primarily the 

responsibility of state juvenile court authorities that have original 

jurisdiction based on state statute. Under 18 U.S.C. §5032:

Whenever any person under twenty-one years of age has 

been arrested, charged with the commission of an offense 

punishable in any court of the United States or of the 

District of Columbia, and, after investigation by the 

Department of Justice, it appears that such person has 

committed an offense or is a delinquent under the laws of 

any State or of the District of Columbia which can and will 

assume jurisdiction over such juvenile and will take him 

into custody and deal with him according to the laws of 

such State or of the District of Columbia, and that it will 

be to the best interest of the United States and of the 

juvenile offender, the United States attorney of the district 

in which such person has been arrested may forego his 

prosecution and surrender him as herein provided, unless 

such surrender is precluded under section 5032 of this 

title.

Congress intended to subject juveniles to jurisdiction of state 

court if: that state has jurisdiction over juveniles, will accept 

jurisdiction, and has available programs and services adequate 

for needs of juveniles.23

In some cases, states are unable or unwilling to assume 

jurisdiction, in which case the Attorney General must certify to 

the appropriate district court of the United States that any of the 

following conditions of 18 U.S.C. §5032 applies: 

(1) the juvenile court or other appropriate court of a State 

does not have jurisdiction or refuses to assume jurisdiction 
182 Juvenile Law

over said juvenile with respect to such alleged act of 

juvenile delinquency;

(2) the State does not have available programs and services 

adequate for the needs of juveniles;

(3) the offense charged is a crime of violence that is a felony 

and that there is a substantial Federal interest in the case 

or the offense to warrant the exercise of Federal 

jurisdiction;

(4) that the offense charged is a crime described in section 

401 of the Controlled Substances Act (21 U.S.C. 841), and 

that there is a substantial Federal interest in the case or 

the offense to warrant exercise of Federal jurisdiction; or

(5) that the offense charged is a crime described in the 

Controlled Substances Import and Export Act (21 U.S.C. 

952(a), 953, 955, 959, 960(b)(1), (2), (3)), or 18 U.S.C. § 

922(x), or 18 U.S.C. §§ 924(b), (g), or (h), and that there is 

a substantial Federal interest in the case or the offense to 

warrant exercise of Federal jurisdiction.

Since the passage of the statute, the Attorney General’s authority 

to make this certification has been redelegated to the United 

States Attorneys under 28 C.F.R. 0.57. The certification 

procedure in 18 U.S.C. § 5032 encompasses recognition of 

general policy of federal abstention in juvenile proceedings; 

procedure was designed to insure that only where there is no 

jurisdiction except in federal court are federal courts to intrude 

into juvenile delinquency jurisprudence.24

Under the statute, if the United States Attorney does not certify 

that any of the listed circumstances apply, the juvenile shall be 

surrendered to the appropriate legal authorities of the state, the 

District of Columbia, or commonwealth, territory, or possession 

of the United States where the offense occurred. The definition of 

state in 18 U.S.C. §5032 does not include tribal governments, 
Juvenile Law 183

however, and the United States Attorney is not required to 

consult with tribal authorities before certifying federal 

jurisdiction.25

6.6 Federal Jurisdiction

If a state is unable or unwilling to assume jurisdiction and the 

United States Attorney files a certification that one or more of the 

circumstances listed in 18 U.S.C. §5032 applies, the juvenile 

delinquent is not surrendered to the authorities of a state, the 

District of Columbia, or commonwealth, territory, or possession 

of the United States. Any further proceedings against the juvenile 

shall be in an appropriate district court of the United States 

provided that the juvenile is:

• under 21 years of age when the information is filed, 

• alleged to have violated federal criminal law before reaching the 

age of 18.

The court may be convened at any time and place within the 

district, in chambers or otherwise, and the United States 

Attorney is required to proceed by information unless the case is 

any misdemeanor, other than a petty offense, in which consent 

to trial before a magistrate judge has been filed. In cases when a 

consent to trial has been filed, proceedings may be instituted 

against a juvenile by a violation notice or complaint, provided 

that the certification required by §5032 has been filed in open 

court at the time of arraignment.

Juveniles may request in writing upon advice of counsel to be 

proceeded against as an adult because the JJDPA permits a 

juvenile to choose between being tried as adult with right to jury 

trial and as juvenile in delinquency proceeding with no jury; there 

is no constitutional right to jury trial in juvenile delinquency 

proceedings.26
184 Juvenile Law

If the certification has been filed, the juvenile has not requested 

in writing upon advice of counsel to be proceeded against as an 

adult, the courts will determine if the juvenile should be 

proceeded against as an adult.

6.7 Delinquency Proceedings

The juvenile delinquency proceeding itself proceeds essentially 

like a bench trial. Where detention may follow the proceeding, 

recall that juveniles have constitutional rights under the due 

process clause to adequate notice, to the assistance of counsel, 

to the privilege against self-incrimination, and to confront and 

cross-examine adverse witnesses.27 The due process clause also 

requires proof beyond a reasonable doubt.28 Juveniles do not 

have a constitutional right to a jury trial in juvenile court, and 

the federal statutes do not provide for one.29

The Federal Rules of Evidence appear to apply to juvenile 

delinquency proceedings.30 The Rules of Criminal Procedure do 

not apply in any circumstance where their application is 

inconsistent with the juvenile statutes.31 The entire proceeding is 

subject to the limitations set forth in 18 U.S.C. § 5038 on 

disclosure of the identity of the juvenile defendant and 

information about the juvenile proceedings. The usual methods 

of complying with these limitations include filing documents in 

the case under seal, using the juvenile’s initials or "John Doe" to 

describe the juvenile in any pleadings, and conducting 

proceedings in a closed courtroom or in chambers.32

Upon an adjudication of delinquency, the judge has discretion to 

impose any of the conditions listed in 18 U.S.C. § 5037, including 

restitution, probation (and conditions of probation), and official 

detention, but not fines. There is no supervised release for 

juvenile delinquents, therefore juveniles sentenced to official 
Juvenile Law 185

detention are committed to the custody of the Attorney General 

and the Federal Bureau of Prisons designates a place of 

confinement. 

Under 18 U.S.C. § 5039, juveniles adjudicated delinquent who 

are under 21 may not be placed in an institution in which they 

have "regular contact" with adults convicted of crimes or awaiting 

trial on criminal charges. There are at present no long-term 

federal facilities for juveniles. The Bureau of Prisons ordinarily 

places juveniles in state juvenile or private facilities under 

contract, but where possible, juveniles are placed in foster homes 

or community-based facilities located in or near their home 

communities.

6.8 District Court Proceedings

Not all federal juvenile offenders commit violent offenses or have 

a history of responding unfavorably to interventions and 

preventive measures in the community, and so the court 

considers a number of factors before juveniles are tried as adults 

in district court.

Transfer to district court is mandatory when a juvenile who is 

alleged to have committed any of the following acts after his 

sixteenth birthday and has previously been found guilty of the 

same act or a comparable State felony:

• an offense described in 18 U.S.C. §32 (damage or destroy 

aircraft or aircraft facilities or commits violence on an 

aircraft), or;

• an offense described in 18 U.S.C. §81 (arson within 

maritime and territorial jurisdiction on navigation, 

shipping, naval stores), or;

• an offense described in 18 U.S.C. §844(d) (receipt of 

explosives with knowledge or intent; use of explosives to 
186 Juvenile Law

kill, injure, intimidate individual or damage or destroy 

property), or;

• an offense described in 18 U.S.C. §844(e) (bomb 

threat/arson threat, whether real or false), or;

• an offense described in 18 U.S.C. §844(f) (use of fire or 

explosive to damage or destroy U.S. property; injures any 

person, or kills any person), or;

• an offense described in 18 U.S.C. §844(h) (use of any fire 

or explosive in any federal felony), or;

• an offense described in 18 U.S.C. §844(1) (use of fire or 

explosive to damage or destroy property involved in 

interstate commerce; injures any person, or kills any 

person), or;

• an offense described in 18 U.S.C. §2275 (sets fire to 

foreign-flagged ship or U.S.-flagged ship engaged in 

international commerce), or;

• an offense described in 18 U.S.C. §2275 (contempt of 

court), or;

• a controlled substance or drug offense described in 21 

U.S.C. §§ 952 (a), 955, 959, or 960, or;

• an offense which if committed by an adult would be a 

felony offense that has as an element thereof the use, 

attempted use, or threatened use of physical force against 

the person of another, or that, by its very nature, involves 

a substantial risk that physical force against the person of 

another may be used in committing the offense.

Transfer is permissible when the following offenses are 

committed after a juvenile’s fifteenth birthday:

• a felony that is a crime of violence;

• an explosives offense described in 21 U.S.C. §841;

• a controlled substance or drug offense described in 21 

U.S.C. §§ 952 (a), 955, 959;

• a youth handgun offense under 18 U.S.C. §922(x); or
Juvenile Law 187

• a firearms offense described in 18 U.S.C. §§ 924 (b), (g),

or (h). 

Transfer is permissible when the following offenses are 

committed after a juvenile’s thirteenth birthday and the juvenile 

is non-Indian or when the governing body of the tribe has elected 

to allow juvenile prosecutions in the appropriate district court of 

the United States instead of the tribal court:

• Murder in the first degree (18 U.S.C. §1111);

• Murder in the second degree (18 U.S.C. §1111);

• Attempt to commit murder or manslaughter;

• Assault with intent to commit murder or a violation of 

18 U.S.C. §2241 or §2242 (109A sexual abuse felonies);

• Assault with intent to commit any other felony; or

• Assault with a dangerous weapon with intent to do 

bodily harm.

For Indian juveniles who have committed the above offenses after 

their thirteenth birthday, and are subject to the criminal 

jurisdiction of an Indian tribal government (meaning the tribe can 

assert criminal jurisdiction in tribal court for the offense), the 

governing body of the tribe must first elect to allow juvenile 

prosecutions in the appropriate district court of the United States 

instead of the tribal court.

This is not a “case-by-case” election; the governing body of the 

tribe must elect to allow all juvenile prosecutions to be heard

appropriate district court of the United States instead of the tribal 

court, or it must elect to allow no juvenile prosecutions

Take note that the specific provisions of 18 U.S.C. §5032 modify 

the general rule that the United States would prosecute “any 

Indian” for offenses listed in the Major Crimes Act under 18 

U.S.C. §1153 if committed in Indian Country:
188 Juvenile Law

• murder;

• manslaughter;

• kidnapping;

• maiming;

• felony under Chapter 109A (sex crimes);

• incest;

• felony assault under 18 U.S.C. §113 (including crimes of 

domestic violence);

• assault against an individual who has not attained the 

age of 16 years;

• felony child abuse or neglect;

• arson;

• burglary;

• robbery; or

• felony under 18 U.S.C. §661 (larceny over $1,000).

If a juvenile commits an offense other than those specifically 

listed in 18 U.S.C. §5032 that may result in mandatory or 

permissive transfer, courts weigh six additional factors when 

assessing whether transfer of a qualified juvenile to adult status 

is in the interest of justice:

(1) age and social background of the juvenile; 

(2) nature of the alleged offense; 

(3) extent and nature of the juvenile’s prior delinquency 

record; 

(4) juvenile’s present intellectual development and 

psychological maturity; 

(5) nature of past treatment efforts and the juvenile’s 

response to such efforts; and

(6) the availability of programs designed to treat the 

juvenile’s behavioral problems.

As part of the nature of the alleged offense, the court is also 

required to consider the extent to which the juvenile played a 
Juvenile Law 189

leadership role in an organization, or otherwise influenced other 

persons to take part in criminal activities, involving the use or 

distribution of controlled substances or firearms. Such a factor, 

if found to exist, shall weigh in favor of a transfer to adult status, 

but the absence of this factor does not preclude a transfer.

To ensure that the extent and nature of a juvenile’s prior 

delinquency record is considered, prior juvenile court records of 

such juvenile must be received by the court, or the clerk of the 

juvenile court must certify in writing that the juvenile has no 

prior record, or must certify that the juvenile’s record is 

unavailable and provide the reason for its unavailability before 

any finding of delinquency or before a transfer to adult 

prosecution. The district court may use its discretion to weigh all 

factors listed under §5032 in any way that seems appropriate, 

and may weigh the seriousness of an offense more heavily than 

the other criteria.33

If a transfer motion for adult prosecution is granted, the AUSA 

must either seek to indict the juvenile, or supersede the pending 

indictment of the juvenile’s adult codefendants and treat the 

juvenile as an adult defendant for all trial and sentencing 

purposes. If the U.S. Attorney’s Office proceeds with a juvenile 

adjudication, it will proceed as a speedy closed trial that follows 

nearly all the same rules as a criminal prosecution. The 

proceeding is conducted before a district court judge, since a 

magistrate cannot impose jail time on a juvenile under 18 U.S.C. 

§ 3401(g).

Once a juvenile has entered a plea of guilty or the proceeding has 

reached the stage that evidence has begun to be taken with 

respect to a crime or an alleged act of juvenile delinquency 

subsequent criminal prosecution or juvenile proceedings based 

upon such alleged act of delinquency is barred.
190 Juvenile Law

Whenever a juvenile transferred to district court is not convicted 

of the crime upon which the transfer was based or another crime 

which would have warranted transfer had the juvenile been 

initially charged with that crime, further proceedings concerning 

the juvenile are conducted pursuant to the provisions of 18 

U.S.C. §§ 5031 et seq.
1 2 REPORT ON THE CHILD OFFENDER IN THE FEDERAL SYSTEM OF 

JUSTICE (1931).

2 383 U.S. 541 (1966)

3 Harling v. United States, 111 U.S. App. D.C. 174, 177-178 

(1961).

4 387 U.S. 1 (1967).

5 397 U.S. 358 (1970).

6 403 U.S. 528 (1971).

7 384 U.S. 436 (1966); see also Legal Division Handbook 2015 at 

12.1.

8 United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1993).

9 North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 

60 L. Ed. 2d 286 (1979)(quoting Johnson v. Zerbst, 304 U.S. 458, 

464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). 

10 Gallegos v. Colorado, 370 U.S. 49, 54 (1962).

11 See Fare v. Michael C., 442 U.S. 707, 724-25 (1979); see also

United States v. Burrous, 147 F.3d 111, 116 (2d Cir. 1998) ("In 

the case of interrogation of a juvenile, we examine the totality of 

the circumstances culminating in the waiver."

12 See 18 U.S.C. § 5034. 13 See United States v. White Bear, 668 F.2d 409, 412 (8th Cir. 

N.D. 1982).

14 See United States v. Doe, 219 F.3d 1009, 1017 (9th Cir. 

2000).

15 United States v. Doe, 226 F.3d 672, 679 (6th Cir. 2000).

16 United States v. Juvenile Male, 595 F.3d 885, 902 (9th Cir. 

2010), quoting United States v. D.L., 453 F.3d 1115, 1120 (9th 

Cir. 2006), internal quotation marks omitted.

17 United States v. Glover, 372 F.2d 43, 46 (2d Cir. 1967). 18 442 F.2d 296 (2d Cir. 1971).

19 513 F.2d 755 (8th Cir. 1975).

20 See United States v. A.D., 28 F.3d 1353 (3rd Cir. 

1994)(publicity limitations discussed).

21 See Horn v. Madison County, 22 F.3d 653 (6th Cir. 1994) 

(discussing personal liability if violation of juvenile defendant’s 

rights was proximate cause of injury).

 
 22 See Ala. Code §12-15-1 (“When used in this chapter, the 

following words and phrases shall have the following meanings . 

. . Delinquent Act. An act committed by a child that is designated 

a violation, misdemeanor, or felony offense under the law of this 

state . . . or under federal law . . . .”); see also Ariz.Rev.Stat.Ann. 

§8-201; Cal.Wel.& Inst. Code §602; Colo.Rev.Stat. §19-2-104;

Conn.Gen.Stat.Ann. §46b-120; Del.Code Ann. tit.10, §1009; Fla. 

Stat.Ann. §985.03; Ga.Code Ann. §15-11-2; Hawaii Rev.Stat. 

§571-11; Idaho Code §20-505; Ill.Comp.Stat.Ann. ch.705 §405/5-

105; Iowa Code §232.2; La.Child.Code art. 804; Mich.Comp.Laws 

Ann. §712A.2; Minn.Stat.Ann. §260B.007; Miss.Code §43-21-

105; N.D. Cent Code §27-20-02; Ohio Rev. Code §2152.02;

Okla.Stat.Ann. tit.10 §7301-1.3; Ore.Rev. Stat. §419C.005;

Pa.Stat.Ann. tit.42 §6302; R.I.Gen.Laws §14-1-3; S.D.Cod.Laws 

§26-8C-2; Tenn. Code Ann. §37-1-102; Tex.Fam.Code Ann. 

§51.03; Utah Code Ann. §78-3a-104; Vt.Stat.Ann. tit.33 §5502;

Va. Code §16.1-228; Wash.Rev.Code Ann. §13.40.020; Wis.Stat. 

Ann. §938.02. 23 See State in Interest of S., 349 A2d 105 (1975).

24 See United States v Juvenile, 599 F. Supp. 1126 (1984, D. 

Or.).

25 See United States v. Hayes, 590 F.2d 309, 310 (9th Cir. Cal. 

1979).

26 See United States v C.L.O. 77 F3d 1075 (8th Cir., 1996); see 

also McKeiver, infra. 27 See Gault, infra. 28 See Winship, infra. 29 See McKeiver, infra. 30 See Fed. R. Evid. 1101.

31 See Fed. R. Crim. P. 54(b)(5). 32 See generally, United States v. A.D., 28 F.3d 1353 (3d Cir. 

1994).

33 See United States v. Nelson, 68 F.3d 583, 588-590 (2d Cir. 

1995).
Chapter 109A Felonies 191

Chapter Seven

Chapter 109A Felonies

7.1 Sex Crimes are Major Crimes...............................191

7.2 Distinguishing Acts and Contacts ........................193

7.3 Sexual Acts .........................................................194

7.4 Sexual Contact ....................................................196

7.5 Aggravated Sexual Abuse .....................................197

7.5.1 Aggravated Sexual Abuse Factors.........................199

7.5.2 By Force or by Threat of Force ............................199

7.5.3 Rendering the Victim Incapable of Refusing ........200

7.5.4 With Children Under 12.......................................201

7.6 Sexual Abuse .......................................................203

7.6.1 Degree of Fear in Sexual Abuse Cases ..................203

7.6.2 Inability to Consent ............................................205

7.7 Sexual Abuse of Minor or Ward ............................206

7.7.1 Sexual Abuse of a Minor ......................................207

7.7.2 Sexual Abuse of a Ward........................................208

7.8 Abusive Sexual Contact - Generally .....................208

7.8.1 Abusive Sexual Contact - Minor ...........................211

7.8.2 Abusive Sexual Contact - Ward ............................211

7.8.3 Abusive Sexual Contact - Other Circumstances....212

7.9 Duty to Notify or Report......................................212

7.9.1 Reporting Definitions and Duties.........................213

7.9.2 Mandatory Reporting to FBI ................................216

7.9.3 Confidentiality, Protection from Liability ............217

7.9.4 Failing to Report or Maintain Privacy..................218

7.10 Statute of Limitations .........................................220

7.1 Sex Crimes are Major Crimes

Children in Indian Country are vulnerable to physical and sexual 

abuse. Finding that incidents of child abuse on reservations are 

grossly underreported, Congress mandated reporting of actual or

suspected child abuse occurring in Indian Country and allows 

for criminal prosecution when reports are not made as required 
192 Chapter 109A Felonies

by law. Congress also included certain sexually-motivated 

felonies among the offenses enumerated in the Major Crimes Act.

These “Chapter 109A felonies” consist of five categories of federal 

sexual offenses in The Sexual Abuse Act, passed in 1986, revised 

in 1996 and codified in 18 U.S.C. §§ 2241 through 2248. The 

1996 revisions:

• Reformed and modernized federal law regarding rape and 

other sexual offenses;

• Defined offenses in gender neutral terms;

• Defined offenses in a way that focuses on the defendant’s 

conduct;

• Expanded the offenses to reach all forms of sexual abuse;

•Abandoned the doctrines of resistance and spousal 

immunity; and

• Expanded federal jurisdiction to include federal prisons.

The crimes included in the Act are:

• Aggravated Sexual Abuse (requires act);

• Sexual Abuse (requires act);

• Sexual Abuse of a Minor (requires act);

• Sexual Abuse of a Ward (requires act); and

• Abusive Sexual Contact (requires contact, not act).

As a result, if any of the federal sexual abuse offenses are 

committed by an Indian in Indian Country, the federal courts 

have jurisdiction over such offenders and prosecution would be 

through the appropriate United States Attorney’s Office.

Likewise, if a non-Indian commits one of these offenses against 

an Indian in Indian Country, the offender can be prosecuted 

under the Indian Country Crimes Act, 18 U.S.C. §1152.
Chapter 109A Felonies 193

Incest is one of the enumerated felonies under the Major Crimes 

Act.1 Generally speaking, the crime of incest involves sexual 

intercourse between members of a family, or those among whom 

marriage would be illegal because of blood relations. This crime 

is not defined by federal law, but is instead defined by 

assimilating the incest statute of the state where the crime was 

committed. In a federal prosecution for incest, the elements of 

the state statute must be proven beyond a reasonable doubt.

Example: Weddell Anderson is a member of the Running Bull 

Tribe and he lives on the Running Bull Reservation, which is 

located in the State of New Mexico. For the past three years, 

Anderson and his adult niece, who also lives on the reservation, 

have had an incestuous relationship. If Anderson and his niece 

are indicted for the crime of incest, the United States will 

prosecute them under the State of New Mexico’s incest statute.

7.2 Distinguishing Acts and Contacts

To understand the differences among the various Chapter 109A 

felonies, it is vital to know the difference between a sexual act 

and a sexual contact. Conduct defined as a sexual act is treated 

much more seriously than conduct that includes only sexual 

contact.

Thus, the law enforcement officer must become familiar with the 

types of sexual acts, as well as what constitutes a sexual contact. 

It is also of critical importance that law enforcement officers,

prosecutors, and investigators help social workers, health care 

professionals, and others involved in the process understand the 

legal meaning of “penetration” under federal law in these cases.

A common misconception is that “penetration” involves an actual 

intrusion, however slight, into the interior of the vagina or the 

rectum. This is not required, as discussed below. Incorrect use 
194 Chapter 109A Felonies

of terms can mean the difference, in some instances, between 

declining a case for lack of resources (if it is believed not to involve 

penetration) and sending an offender to prison for a substantial 

number of years (if the matter is accepted and penetration is 

proved at trial).

7.3 Sexual Acts

There are four ways in which sexual acts, as defined in §2246(2), 

are committed.

The first way in which a sexual act may be committed is through 

contact between the penis and the vulva, or contact between the 

penis and the anus. Section 2246(2)(A) defines one form of sexual 

act: “contact between the penis and the vulva or the penis and 

the anus.” It specifically states that “contact involving the penis 

occurs upon penetration, however slight.” So, if the penis 

“penetrates” either the vulva or the anus, the defendant has 

engaged in the sexual act.

The anatomical terms used are “vulva” and “anus,” not “vagina” 

and “rectum.” The “vulva” is commonly held to mean the external 

genital organs of the female, including specifically the labia 

majora. Similarly, the “anus” is the tissue that constitutes the 

opening of the rectum, which includes the outer surface of the 

tissue.

Consequently, “penetration” need not involve insertion of the 

penis into the vagina or rectum. Rubbing the penis against the 

vaginal opening between the labia majora constitutes a sexual 

act, as does pushing the penis up against the anus and 

penetrating the external opening to any degree.

Because penetration can be slight and involve the outer layers of 

the vulva or rectum, physical injury or trauma to the victim may
Chapter 109A Felonies 195

not be present even when a defendant confesses to act involving 

penetration.

The second way in which a sexual act may be committed is 

through oral sexual acts, defined in Section 2246(2)(B) as 

involving contact between the mouth and the penis, between the 

mouth and the vulva, or between the mouth and the anus.

No penetration is required, and the definitions are such that oral 

contact with the external surfaces of the penis, vulva, or anus 

would fall within the definition of the sexual act.

The third way in which a sexual act may be committed is defined 

in Section 2246(2)(C) as digital penetration or penetration by any 

object “however slight, of the anal or genital opening of another 

by a hand or finger, or by any object, with an intent to abuse, 

humiliate, harass, degrade, or arouse or gratify the sexual desire 

of any person.”

There are four key points to remember in cases involving digital 

penetration or penetration by an object.

First, this type of sexual act always requires that the prohibited 

act be done with the specified unlawful intent, that is, with 

“intent to abuse, humiliate, harass, degrade, arouse or gratify the 

sexual desire of any person.”

Second, it need not be the defendant whose sexual desires are 

intended to be aroused or gratified.

Third, the anatomical terms change from “vulva” and “anus” to 

“genital opening” and “anal opening.” Without definitions of 

those terms, it is still possible to argue that “penetration” 

includes penetration of the outer labia or the outer surface of the 

anal tissue.
196 Chapter 109A Felonies

Fourth, penetration through clothing is sufficient to support a 

prosecution under this statute.2

The fourth way in which a sexual act may be committed is 

through the direct touching of child’s genitalia. Section 2246(2)(D)

defines this sexual act as “the intentional touching, not through 

the clothing, of the genitalia of another person who has not 

reached the age of 16.”

As with digital penetration or penetration by an object, the 

statute requires the intent to abuse, humiliate, harass, degrade, 

arouse, or gratify the sexual desire of any person. Touching is not 

restricted to touching with the defendant’s hands or fingers, and 

the victim’s full “genitalia” as defined by statute are included but 

since “genitalia” commonly means one’s reproductive organs, it 

does not include the victim’s anus, buttocks, groin, inner thighs, 

or breasts.

Sexual acts are required in any prosecution for aggravated sexual 

abuse, sexual abuse, or sexual abuse of a ward or minor.

7.4 Sexual Contact

"Sexual contact” is distinguished from a "sexual act" in Chapter 

109A. “Sexual contact” is defined as “the intentional touching, 

either directly or through the clothing, of the genitalia, anus, 

groin, breast, inner thigh, or buttocks of any person with an 

intent to abuse, humiliate, harass, degrade, or arouse or gratify 

the sexual desire of any person.”

Clothing has been expanded by the courts beyond wearing 

apparel, and includes items such as blankets.3 The requisite 

intent is the same as that required under §2246(2)(C) and (D) for 

digital penetration and direct genital touching: “with an intent to 
Chapter 109A Felonies 197

abuse, humiliate, harass, degrade, or arouse or gratify the sexual 

desire of any person.”

Note that there is no age restriction and depending on the way 

that the contact was achieved, it can be:

1) Aggravated abusive sexual contact

• By force or fear/threat;

• By rendering the victim incapable of refusing;

• With children under 12 years of age; or

• With children between 12 and 16 years of age through 

force or threats.

2) Abusive sexual contact

• By threats or fear (fear other than the high degree of fear 

associated with an aggravated sexual contact); or

• Sexual contact of a person unable to consent.

7.5 Aggravated Sexual Abuse

Aggravated sexual abuse is defined in 18 U.S.C. §2241. It is the 

most serious of the federal sexual abuse statutes, and always 

involves a sexual act rather than sexual contact:

(a) By force or threat.-Whoever, in the special maritime and 

territorial jurisdiction of the United States or in a Federal Prison, 

knowingly causes another person to engage in a sexual act

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any 

person will be subjected to death serious bodily injury, or 

kidnapping; or 
198 Chapter 109A Felonies

attempts to do so, shall be fined under this title, imprisoned for 

any term of years or life, or both. 

(b) By other means.- Whoever, in the special maritime and 

territorial jurisdiction of the United States, or in a Federal prison, 

knowingly-

(1) renders another person unconscious and thereby engages in a 

sexual act with that person; or

(2) administers to another person by force or threat of force, or 

without the knowledge or permission of that person, a drug, 

intoxicant, or other similar substance and thereby-

(A) substantially impairs the ability of that other person to appraise 

or control conduct; and

(B) engages in a sexual act with that other person; or attempts to 

do so, shall be fined under this title, imprisoned for 

any term of years or life, or both.

(c) With children.- Whoever crosses a State line with intent to 

engage in a sexual act with a person who has not attained the age 

of 12 years, or in the special maritime and territorial jurisdiction of 

the United States or in a Federal prison, knowingly engages in a 

sexual act with another person who has not attained the age of 12 

years, or knowingly engages in a sexual act under the 

circumstances described in subsections (a) and (b) with another 

person who has attained the age of 12 years but has not attained 

the age of 16 years 9 and is at least 4 years younger than that 

person), or attempts to do so, shall be fined under this title, 

imprisoned for any term of years or life, or both. 

If the defendant has previously been convicted of another Federal 

offense under this subjection, or of a State offense that would have 
Chapter 109A Felonies 199

been an offense under either such provision had the offense 

occurred in a Federal prison, unless the death penalty is imposed, 

the defendant shall be sentenced to life in prison.

(d) State of mind proof requirement.- In a prosecution under 

subsection (c) of this section, the Government need not prove that 

the defendant knew that the other person engaging in the sexual 

act had not attained the age of 12 years.

Attempts to commit aggravated sexual abuse also constitute in 

themselves aggravated sexual abuse. That the defendant and the 

victim are married is not a defense, so committing these acts 

upon one’s spouse is criminal.

7.5.1 Aggravated Sexual Abuse Factors

Engaging in a sexual act under the following five circumstances 

is aggravated sexual abuse: (1) by force; (2) by threat or placing 

the victim in fear that any person will be killed, kidnapped, or 

subjected to serious bodily injury; (3) by knowingly rendering the 

victim unconscious by knowingly administering drugs or 

intoxicants; (4) without the victim’s knowledge or permission; or 

(5) with children under 12 or with children between 12 and 16 

when more than a four year age difference exists between the 

defendant and the victim.

7.5.2 By Force or by Threat of Force

Aggravated sexual abuse may occur when the defendant 

knowingly causes another person to engage in a sexual act by 

either using force against the victim, or threatening or placing 

the victim in fear that someone will be killed, kidnapped, or 

subject to serious bodily injury. “Knowingly” means that the 

defendant is aware of the act and does not act through ignorance, 

mistake or accident. The defendant need not know that his or her 

acts are unlawful.
200 Chapter 109A Felonies

The force requirement may be satisfied by showing either: the use 

or threatened use of a weapon, sufficient force to overcome, 

restrain, or to injure a person; or the use of a threat or harm 

sufficient to coerce or compel the submission of the victim.

Various court decisions have found the following evidence of force 

sufficient: restraint is sufficient to satisfy the force element if the 

victim cannot escape from the sexual act and no evidence of 

trauma is required;4 use of force was appropriately found where 

the defendant slapped and choked his victim;5 evidence that 

included defendant pushing victim to the floor and victim stating 

that defendant was stronger and that he hurt her established the 

force element.6

In United States v. Lauck,7 the defendant walked alongside the 

victim, put his arm around her and held her to stop her from 

walking, backed her into a corner, and held her there for several 

minutes while fondling and groping the victim. The defendant 

unsuccessfully argued that no “significantly violent” actions or 

threats took place; the court held that under 18 U.S.C. §2244 the 

force used to make the contact does not have to be part of the 

sexual contact itself.

7.5.3 Rendering the Victim Incapable of Refusing

When the defendant knowingly makes the victim incapable of 

refusing to engage in a sexual act and “thereby” engages in the 

sexual act with the victim, the defendant has committed 

aggravated sexual abuse. Deliberately causing a person to be 

unable to assert his or her will is legally as reprehensible as 

overcoming the victim’s will with force or threats. The victim can 

be rendered incapable of refusing consent under the statute in 

two ways:

• Knowingly rendering the victim unconscious, “thereby” 

engaging in a sexual act with the unconscious victim; or
Chapter 109A Felonies 201

• Knowingly administering a drug, intoxicant, or other similar 

substance to the victim by force or threat of force, or without the 

victim’s knowledge or permission, “thereby” substantially 

impairing the victim’s ability “to appraise or control conduct” and 

engages in a sexual act with the impaired victim.

Example: If the defendant cuts off the victim’s oxygen through 

strangulation until s/he passes out, then commits a sexual act 

with the victim, the defendant has committed aggravated sexual 

abuse.

Example: If the defendant forcibly administers an intoxicant 

(“date rape” drug) by holding the victim’s throat and pouring 

liquid into the victim’s mouth and the victim becomes intoxicated 

to a degree that prevents awareness or refusal, the defendant has 

committed aggravated sexual abuse.

Example: If the defendant administers an intoxicant (“date rape” 

drug) without the victim’s knowledge and the victim becomes 

intoxicated to a degree that prevents awareness or refusal, the 

defendant has committed aggravated sexual abuse.

7.5.4 With Children Under 12

It is aggravated sexual abuse under 18 U.S.C. §2241(c) for a 

defendant to knowingly engage, or knowingly attempt to engage, 

in a sexual act with a child under the age of 12 years. This offense 

does not require the use of threats or force, or the administration 

of a drug or alcohol or similar substances. This offense does not 

require that the defendant know the child is less than 12 years 

old. Thus, there is strict liability as to the age of the child element 

under 18 U.S.C. §2241 (d).

Unlike the case with statutory rape of a child between 12 and 16, 

which is contained in §2243(a) and discussed below, the age of 

the defendant does not matter in a prosecution for aggravated 

sexual abuse with a child under the age of 12. A seven-year-old 
202 Chapter 109A Felonies

boy could be proceeded against as a juvenile offender for 

engaging in a sexual act with an 11-year-old girl; the 11-year-old 

girl could also be proceeded against as a juvenile offender for 

engaging in a sexual act with the seven-year-old boy.

In one of the 1996 revisions, Congress added a definition to 

§2241 (c), making it a separate offense to cross a state line with 

the intent to engage in a sexual act with a child under 12.

This crime is not specific to Indian Country and does not include 

crossing into or out of Indian Country with the required intent. 

Therefore, a defendant could be charged when crossing from one 

state to another with intent to sexually abuse a child under 12 in 

Indian Country, even if the suspect was stopped before he was 

able to initiate or complete the act.

After the revisions, §2241(c) also includes crime of committing 

sexual abuse “under the circumstances described in subsection 

(a) and (b)” with victims between 12 and 16. This crime consists 

of a person, at least four years older than the victim, who 

knowingly causes a child between the ages of 12 and 16 to engage 

in a sexual act to engage in a sexual act: 

• by force or threat;

• by rendering the victim unconscious;

• by administering drugs or intoxicants through force or 

threats; or

• without the child’s knowledge or permission.

While aggravated sexual abuse through use of force or threats, 

or by rendering the victim unconscious or incapable of refusing 

consent, was already a criminal offense regardless of the victim’s 

age, the penalty for this crime is greatly enhanced for second 

offenders. Under this statute, second offenders now face a 

mandatory term of life imprisonment for sexual abuse.
Chapter 109A Felonies 203

7.6 Sexual Abuse

Sexual abuse is defined in 18 U.S.C. §2242, and always involves 

a sexual act, rather than sexual contact:

Whoever, in the special maritime and territorial jurisdiction of the 

United States or in a Federal prison, knowingly-

(1) causes another person to engage in a sexual act by threatening 

or placing that other person in fear (other than by threatening or 

placing that other person in fear that any person will be subjected 

to death, serious body injury, or kidnapping); or

(2) engages in a sexual act with another person if that person is-

(A) incapable of appraising the nature of the conduct; or

(B) physically incapable of declining participation in, or 

communicating unwillingness to engage in, that sexual act; or 

attempts to do so, shall be fined under this title, imprisoned not 

more than 20 years, or both.

One type of sexual abuse occurs when the defendant knowingly 

causes another person to engage in a sexual act by threatening 

or placing the victim in fear (other than the high degree of fear 

specified in §2241 (a)(2) that someone will be killed, kidnapped, 

or subjected to serious bodily injury).

Under this statute, the requirement of threats or placing the 

victim in fear may be satisfied by showing that the threat or 

intimidation created apprehension or fear of harm to self or 

others in the victim’s mind.

7.6.1 Degree of Fear in Sexual Abuse Cases

The degree of fear for purposes of establishing Sexual Abuse is a 

lesser degree of fear than required for Aggravated Sexual Abuse:
204 Chapter 109A Felonies

• Sexual Abuse fear is apprehension or fear of harm to self or 

others; and

• Aggravated Sexual Abuse fear is fear that someone will be 

killed, kidnapped, or subjected to serious bodily injury.

The definition of “fear” for purposes of Sexual Abuse is very 

broad. The defendant’s actions can implicitly put the victim in 

fear of bodily harm. For a child, an older person creates 

substantial risk that physical force will be used, so the jury can 

infer, simply from the nature of the circumstances, that the child 

was put in fear by the parent’s attempts to perform a sexual act. 

The following three examples illustrate the element of fear in 

different contexts:

• The element of fear can be established where the defendant, a 

self-proclaimed spiritual leader and live-in boyfriend of victim’s 

mother, selected the victim as his assistant in conducting 

religious ceremonies and convinced the victim that she would be 

rejected by the spirits if she did not comply with his sexual 

dictates. The victimization lasted for seven years, between the 

ages of 14 to 21. The defendant also completely dominated the 

victim’s life by choosing her clothing, isolating her from family 

and friends, and slapping her;

• The evidence was sufficient to show that the victim, a 13-yearold, was placed in fear because the defendant’s conduct at least 

implicitly made her afraid of at least some bodily harm; and

• The fear element was satisfied in an indictment when the 

government alleged that the victim’s father was a strict 

disciplinarian, and asked his daughter to take nap with him in 

order to have sex. The court rejected the defendant’s argument 

that §2242(1) requires fear on the date and time in question. 
Chapter 109A Felonies 205

Court held that a strong disciplinarian parent may create a 

general fear in the child sufficient to sustain a conviction under 

§2242(1).

7.6.2 Inability to Consent

It is sexual abuse under §2242(2) if a defendant engages in a 

sexual act with a victim who is either:

(A) Incapable of appraising the nature of the conduct; or

(B) Physically incapable of declining participation in, or 

communicating unwillingness to engage in, the sexual act.

It is sexual abuse under §2242(2) if a defendant engages in a 

sexual act with a victim who is either:

(A) Incapable of appraising the nature of the conduct; or

(B) Physically incapable of declining participation in, or 

communicating unwillingness to engage in, the sexual act.

If the defendant happens across a victim who is already impaired 

and cannot refuse, and then takes advantage of the 

circumstance, the crime is sexual abuse. The sexual abuse 

statute is commonly used to prosecute in circumstances where 

the victim knowingly and voluntarily became intoxicated (usually 

through alcohol or marijuana). 

Example: The victim was incapable of declining participation in 

a sexual act where, on the night of abuse, the victim drank eight 

beers and smoked a marijuana cigarette before she went to sleep; 

the victim vaguely remembered her clothes being pulled off and 

she awakened when she realized the defendant was on top of her 

performing a sexual act.8
206 Chapter 109A Felonies

7.7 Sexual Abuse of Minor or Ward

Sexual abuse of a minor or ward is defined in 18 U.S.C. §2243, 

always involves a minor or ward, and always involves a sexual 

act rather than sexual contact. As with aggravated sexual abuse 

and sexual abuse, attempts are included within the definition of 

the crime. Attempts to commit sexual abuse of a minor are in 

themselves sexual abuse of a minor. Attempts to commit sexual 

abuse of a ward are in themselves sexual abuse of a ward.

The statute reads as follows:

Sexual abuse of a minor or ward of a minor:

(a) Of a minor.-Whoever crosses a State line with intent to 

engage in a sexual act with a person who has not attained 

the age of 12 years, or, in the special maritime and territorial 

jurisdiction of the United States or in a Federal prison, 

knowingly engages in a sexual act with another person who 

– has attained the age of 12 years but has not attained the 

age of 16 years; and is at least four years younger than the 

person so engaging; or attempts to do so, shall be fined 

under this title, imprisoned not more than 15 years, or both.

(b) Of a ward. – Whoever, in the special maritime and territorial 

jurisdiction of the United States or in a Federal prison,

knowingly engages in a sexual act with another person who 

is – in official detention; and under the supervisory, or 

disciplinary authority of the person so engaging; or attempts 

to do so, shall be fined under this title, imprisoned not more 

than fifteen years, or both.

(c) Defenses. – In a prosecution under subsection (a) of this 

section, it is a defense, which the defendant must establish 

by a preponderance of the evidence that the defendant 

reasonably believed that the other person has attained the 

age of 16 years. 
Chapter 109A Felonies 207

In a prosecution under this section, it is a defense, which the 

defendant must establish by a preponderance of the evidence, that 

the persons engaging in the sexual act were at that time married 

to each other.

(d) State of mind proof requirement. – In a prosecution under 

subsection (a) of this section, the Government need not prove 

that the defendant knew – the age of the other person 

engaging in the sexual act; or (2) that the requisite age 

difference existed between the persons so engaging.

7.7.1 Sexual Abuse of a Minor

Sexual abuse of a minor under 18 U.S.C. §2243(a) is the federal 

version of many states’ statutory rape law. The offense consists 

of engaging in a sexual act with a person between the ages of 12 

and 16 or crossing a state line with the intent to engage in a

sexual act with a person between the ages of 12 and 16. Consent 

is never a defense to sexual abuse of a minor; sexual abuse of a 

minor is a felony.

If the victim is less than 12 years old, an offense has been 

committed, no matter what the age of the defendant. 

If the victim is between the ages of 12 and 16 years old, the age 

of the defendant is relevant. The defendant must be at least four 

years older than the victim to constitute the offense. The 

Government does not have to prove that the defendant knew how 

old the victim was and the Government does not have to prove 

that defendant knew there was a four year age difference between 

them. If the defendant is less than four years older than the 

victim, there is no offense. 

If the victim was at least 16 years of age at the time of the offense, 

the defendant’s reasonable belief that the victim of statutory rape 
208 Chapter 109A Felonies

was at least 16 may be offered as a defense and the court may 

allow witnesses to relate their opinions as to how old the victim 

looked on the night in question.9 Being married to the victim at 

the time of the offense is also a valid defense.

7.7.2 Sexual Abuse of a Ward

Sexual abuse of a ward is defined by 18 U.S.C. §2243(b) and 

consists of engaging in a sexual at with a person who is in “official 

detention” and “under the custodial, supervisory, or disciplinary 

authority” of the defendant at the time of the act. There is no age 

requirement, but marriage is a defense. There is no requirement 

that force or threats be used to constitute the crime.

“Official detention” is defined at 18 U.S.C. §2246(5) and includes: 

being detained by, or at the direction of, a federal officer or 

employee after charge, arrest, conviction, or adjudication of 

juvenile delinquency; or being in the custody of, or in someone’s 

custody at the direction of, a federal officer or employee for 

purposes incident to the detention, such as transportation, 

medical services, court appearances, work, and recreation. 

Official detention specifically does not include persons released 

on bail, probation, or parole.

7.8 Abusive Sexual Contact - Generally

Abusive sexual contact is the fourth category of sexual offenses 

in Chapter 109A. There are various felony alternatives for sexual 

contact under 18 U.S.C. §2244, which track the sexual act 

statutes under18 U.S.C. §§2241-2243.

The various types of abusive sexual contact parallel the elements 

of aggravated sexual abuse, sexual abuse, and sexual abuse of a 

minor or sexual abuse of a ward, except that they involve sexual 

contacts rather than sexual acts:
Chapter 109A Felonies 209

Abusive sexual contact

Sexual conduct in circumstances where sexual acts are punished 

by this chapter. -

Whoever, in the special maritime and territorial jurisdiction of the 

United States or in a Federal prison, knowingly engages in or 

causes sexual contact with or by another person, if to do so would 

violate – section 2241 of this title had the sexual contact been a 

sexual act, shall be fined under this title, imprisoned not more than 

ten years, or both; -section 2242 of this title had the sexual contact 

been a sexual act, shall be fined under this title, imprisoned not 

more than three years, or both;-subsection (a) of section 2243 of 

this title had the sexual contact been a sexual act, shall be fined 

under this title, imprisoned not more than two years, or both; orsubsection (b) of section 2243 of this title had the sexual contact 

been a sexual act, shall be fined under this title, imprisoned not 

more than six months, or both.

In other circumstances. - Whoever, in the special maritime and 

territorial jurisdiction of the United States or in a Federal prison, 

knowingly engages in sexual contact with another person without 

that other person’s permission shall be fined under this title, 

imprisoned not more than six months, or both.

The various types of abusive sexual contacts parallel the elements 

of aggravated sexual abuse, sexual abuse, and sexual abuse of a 

minor or ward, except that they involve sexual contacts, rather 

than sexual acts. The offenses under Section 2244 (a) include: 

aggravated abusive sexual contact: This crime consists of 

knowingly engaging in or causing a sexual contact with another 

person if to do so would violate §2241 had the sexual contact been 

a sexual act. The types of aggravated sexual contact are 

summarized below:
210 Chapter 109A Felonies

Aggravated Abusive Sexual Contact

By force of threat. Whoever knowingly engages in or causes sexual 

contact with another person-

(a) by using force against that other person; Or 

(b) by threatening or placing that other person in fear that any 

person will be subjected to death; serious bodily injury, or 

kidnapping has committed aggravated abusive sexual contact.

Example: A defendant, brandishing a knife, says to a 14 year old, 

“If you tell your parents what I am doing to you, I will kill them.” 

He then proceeds to intentionally touch the child’s genitalia 

through the clothing and has the requisite intent to abuse, 

humiliate, harass, degrade, or arouse or gratify the sexual desire 

of any person. This constitutes an aggravated abusive sexual 

contact.

Under this statute, aggravated abusive sexual contact is a felony 

which carries a maximum penalty of ten years, unless death 

results, then the maximum penalty is death or imprisonment for 

any term or years or for life. However, if the offense was 

committed against a child under the age of 12, the maximum 

penalty shall be doubled.

Knowingly engaging in or causing a sexual contact with another 

person if to do so would violate 18 U.S.C §2242 had the sexual

contact been a sexual act. Abusive sexual contact is summarized 

below:

(a). By threats or fear. Whoever knowingly engages in or causes 

sexual contact with another person by threatening or placing that 

other person in fear (other than by threatening or placing that other 

person in fear that any person will be subjected to death, serious 

bodily injury, OR
Chapter 109A Felonies 211

(b). Sexual contact of a person unable to consent. Whoever 

knowingly engages in or causes sexual contact with another 

person-

(1). If that person is incapable of appraising the nature of the 

conduct, or

(2). If that person is physically incapable of declining participation 

in or communicating unwillingness to engage in the sexual contact 

has committed abusive sexual contact.

7.8.1 Abusive Sexual Contact - Minor 

Any person who knowingly engages in or causes a sexual contact 

with another person commits abusive sexual contact of a minor, 

if to do so would violate §2243(a) had the sexual contact been a 

sexual act. Abusive sexual contact of a minor is summarized 

below:

(a). Whoever knowingly engages in or causes sexual contact with 

another person-

(1). Who is between the ages of 12 and 16, or;

(2). Crosses a state line with the intent to engage in a sexual 

contact with a person between the ages of 12 and 16, and;

(3). The defendant is at least four years older than the victim has 

committed abusive sexual contact of a minor.

Abusive sexual contact of a minor is a felony.

7.8.2 Abusive Sexual Contact - Ward 

Any person who knowingly engages in or causes a sexual contact 

with another person commits abusive sexual contact of a ward, 

if to do so would violate §2243(b) had the sexual contact been a 

sexual act. Abusive sexual contact of a ward is summarized 

below:
212 Chapter 109A Felonies

(a). Whoever knowingly engages in or causes sexual contact with 

another person

(1). Who is in official detention, and;

(2). Under the custodial, supervisory, or disciplinary authority of 

the person engaging in the sexual contact has committed the crime 

of abusive sexual contact of a ward.

(b). Abusive Sexual Contact of a Ward is felony.

(c). However, if the offense was committed against a child under 

the age of 12, the maximum penalty shall be doubled.

7.8.3 Abusive Sexual Contact - Other Circumstances 

Under 18 U.S.C. §2244(b), abusive sexual contact under “other 

circumstances” that would not fit any of the situations described 

in 18 U.S.C. §§2241-2243 may still be prosecuted as a felony. 

When a defendant knowingly engages in a sexual contact with 

another person without that person’s permission, the defendant 

has committed abusive sexual contact. This is a lesser-included 

offense of 18 U.S.C. §2242(1).10

7.9 Duty to Notify or Report

In recognition of the federal government’s trust responsibility to 

protect Indian children and Indian tribes, Congress passed the 

Indian Civil Protection and Family Violence Prevention Act (“Indian 

Child Protection Act”) in 1990.

This statute—found in 25 U.S.C. § §3201-3211 with supporting 

provisions in 18 U.S.C. §1169, 18 U.S.C. §3509(d) and 18 U.S.C. 

§403—addresses problems of child abuse on Indian reservations 

attributed to the lack of a federal mandatory reporting law. 

Congress found that persons employed or funded by the Federal 

Government have perpetrated multiple incidents of sexual abuse 
Chapter 109A Felonies 213

of children on Indian reservations, therefore Congress amended 

Title 18 of the United States Code by adding criminal sanctions 

for failure to report child abuse occurring in Indian Country. 

These criminal sanctions are codified at 18 U.S.C. §1169.

Two additional relevant statues require law enforcement officers 

maintain the privacy of child victims or child witnesses. Criminal 

sanctions apply for failing to maintain confidentiality and failing 

to protect the privacy of a child victim or child witness.

7.9.1 Reporting Definitions and Duties

Child abuse is any case in which an individual who is not 

married, and has not attained 18 years of age has died or exhibits 

evidence of the following:

• Skin bruising or bleeding;

• Malnutrition or failure to thrive; 

• Burns; 

• Fracture of any bone, subdural hematoma, or soft tissue 

swelling, and such condition is not justifiably explained 

or may not be the product of an accidental occurrence; or

• Sexual assault, sexual molestation, sexual exploitation, 

sexual contact, or prostitution.

A number of professionals, paraprofessionals, and lay people who 

may come into contact with children are required under 18 U.S.C. 

§1169(a)(1) to report in these circumstances:

• Law enforcement officer; 

• Probation officer; 

• Worker in a juvenile rehabilitation or detention facility; 

• Person employed in a public agency who is responsible 

for enforcing statutes and judicial orders; 

• Medical personnel; 

• School personnel such as teachers, aides, and child care 
214 Chapter 109A Felonies

workers; and

• Mental health professionals.

Reports of abuse or suspected abuse must be reported 

“immediately.” Under 25 U.S.C. §3203(b)(2), it is presumed that 

either the “local” law enforcement agency or local child protective 

services agency will receive the initial notification of child abuse 

concerning a child in Indian Country. Under this statute, “local 

child protective services agency” means the Federal, Tribal, or 

State agency that has the primary responsibility for child 

protection on any Indian reservation or within any community in 

Indian Country. If the local law enforcement agency receives the 

initial notification, the law enforcement agency is required by law 

to immediately notify appropriate officials of the local child 

protective services agency, immediately initiate an investigation 

of such allegation, take immediate and appropriate steps to 

secure the safety and well-being of the child or children involved, 

and complete a written report that includes: 

• Child’s name, address, age, and sex (gender);

• Grade and school in which child is currently enrolled;

• Name and address of the child’s parents or other person 

responsible for the child’s care; 

• Name and address of the alleged offender;

• Name and address of the person who made the report to 

the agency; 

• Brief narrative as to the nature and extent of the child’s 

injuries, including any previously known or suspected 

abuse of the child or the child’s siblings and the 

suspected date of the abuse; and

• Any other information the agency or the person who 

made the report to the agency believes to be important to 

the investigation and disposition of the alleged abuse.
Chapter 109A Felonies 215

Upon completing the written report of child abuse required by 25 

U.S.C. §3203(c), the law enforcement agency is also required to 

furnish a copy of its report to the child protective services agency.

Example: An officer working on the Rocky Boy Indian 

Reservation receives a call from a physician’s assistant (PA) at an 

Indian Health Services Hospital on the reservation. The 

physician’s assistant reported that she just put a cast on a six 

year old girl’s arm. The nature of the fracture (a spiral fracture) 

and the parent’s explanation for how the fracture occurred, as 

well as the child’s explanation, lead the physician’s assistant to 

believe that the child’s broken bone was not an accident. The 

physician’s assistant is required under the Indian Child Protection 

Act to notify law enforcement; the officer is required under the 

Indian Child Protection Act to immediately notify local child 

protective services, begin an investigation of this allegation of 

child abuse, take immediate appropriate steps to secure the 

safety and well-being of the child, and prepare a final report 

contacting the information required by 18 U.S.C. 3203(c).

If the local child protective services or local law enforcement 

officials have reason to believe that an Indian child has been 

abused in Indian Country, they have a duty to immediately 

investigate and take immediate and appropriate steps to 

safeguard victims. Since victims may be abused by family 

members or parents, 25 U.S.C. §3206(a) allows law enforcement 

officers to take any of the following without first obtaining 

parental consent:

• Photographs; 

• X-rays; 

• Medical examinations and interviews; or

• Psychological examinations and interviews.

Under 25 U.S.C. §3206(b), law enforcement officials that have 

reason to believe that the Indian child has been abused in Indian 

Country shall also be allowed to interview an Indian child without 
216 Chapter 109A Felonies

first obtaining the consent of the parent, guardian, or legal 

custodian. If necessary, local law enforcement officials can obtain 

a court order from a Federal Magistrate or U.S. District Court 

judge for physicians, psychologists, or local child protective 

services officials to conduct required interviews.

Example: A BIA officer, who has reason to believe that a 10-yearold Indian child has been abused on the Pine Ridge Indian 

Reservation in South Dakota, requested that a psychologist who 

works for the Indian Health Services, perform a psychological 

evaluation on the child, under authority of 25 U.S.C §3206(a). 

The psychologist refused, stating that he needed permission from 

the child’s parent before he could perform the evaluation. In this 

situation, the officer can seek an order under 25 U.S.C. §3206 (d)

from the appropriate Federal Magistrate or U.S. District Court 

Judge, directing the psychologist to perform the evaluation, if the 

judge finds that there is “reasonable suspicion” that the Indian 

child has been abused in Indian Country.

7.9.2 Mandatory Reporting to FBI

The FBI has primary responsibility for investigating Indian 

Country crimes, therefore local law enforcement agencies are 

required to report certain abuse crimes to the FBI once a 

preliminary inquiry indicates that a criminal violation has 

occurred and the report involves:

• any unmarried person who is under age eighteen and a 

member of an Indian tribe;

• any unmarried person who is under age eighteen, is 

eligible for membership in an Indian tribe and is the 

biological child of a member of an Indian tribe; or

• any abuser who is a member of an Indian tribe.
Chapter 109A Felonies 217

7.9.3 Confidentiality, Protection from Liability

The duty to report suspected child abuse has a “carrot” and 

“stick” aspect; persons making reports are granted confidentiality 

and protection from liability (the “carrot”).

Under 25 U.S.C. §3203(d), the identity of any person who makes 

a report of child abuse or suspected child abuse to a local law 

enforcement agency or local social services agency is protected 

from disclosure without that person’s permission, except to a 

court of competent jurisdiction or a government (tribal, state or 

federal) employee who needs to know the information in the 

performance of such employee’s duties.

Under 25 U.S.C. §3205, tribal, state, or federal government 

agencies that investigate and treat incidents of child abuse may 

provide information and records to tribal, state, or federal 

government agencies that need to know the information in order 

to perform their duties. Release of records and information under 

these circumstances complies with the Privacy Act of 1974 (Pub.L. 

93–579, 88 Stat. 1896) and the Family Educational Rights and 

Privacy Act of 1974 (20 U.S.C. § 1232g).

Example: An Indian Health Services doctor works on a 

reservation where she treated a four-year-old child for a sexually 

transmitted disease. She reported this to the tribal police who, in 

turn, reported this case to the Federal Bureau of Investigation. 

The FBI agent investigating this case has requested copies of the 

doctor’s records concerning the doctor’s treatment of this child, 

as well as the tribal police officer’s report. Both the doctor and 

the tribal police officer can provide these records to the FBI agent 

for the following reasons:

• The doctor works for a federal agency (IHS) which treats 

incidents of child abuse;
218 Chapter 109A Felonies

• The police officer belongs to a tribal agency that 

investigates incidents of child abuse; and

• The agent belongs to a federal agency (FBI) that needs to 

know this information in order to perform her duties.

Example: Under this provision, a childcare worker makes a good 

faith report of suspected child abuse based on his reasonable 

belief to a tribal officer. The officer could reveal the identity of the 

person who made the report of child abuse to tribal protective 

services worker, an FBI agent, and an Assistant U.S. Attorney 

who may seek an indictment against the alleged abuser in federal 

court, but could not reveal the person’s identity to:

• The Neighborhood Watch Association in the reservation 

community where the alleged abuser lives; 

• A journalist writing an article on the alleged abuse for 

the tribal newspaper’s monthly crime report; or

• The investigating officer’s friend who works in tribal 

government but does not have a “need to know” to further 

her duties.

Under 18 U.S.C. §1169(d), any person who reports child abuse or 

suspected child abuse to the local child protective services 

agency or local law enforcement agency is protected from civil or 

criminal liability for making that report if the report was based 

upon that person’s reasonable belief and was made in good faith. 

7.9.4 Failing to Report or Maintain Privacy

The duty to report suspected child abuse has a “carrot” and 

“stick” aspect; persons making reports are granted confidentiality 

and protection from liability (the “carrot”) but are subject to 

criminal penalties if they fail to report as required by law (the 

“stick”).

Under 18 U.S.C. §1169(a), a required reporter who fails to report 

actual or suspected child abuse, can be prosecuted and punished 
Chapter 109A Felonies 219

by fine, or imprisonment, or both. Under 18 U.S.C. §1169(b), 

anyone who “supervises” or “has authority over” a required 

reporter and inhibits or prevents that person from making the 

report can also be prosecuted and punished by fine, or 

imprisonment, or both.

The rights of child victims and child witnesses are outlined in 18 

U.S.C. 3509(d) and protected by 18 U.S.C. § 3509(d) and 18 U.S.C. 

§403. Through these statutes, Congress has created safeguards 

for the privacy and confidentiality of child victims and child 

witnesses. 

In a federal criminal proceeding involving child physical or sexual 

abuse, 18 U.S.C. §3509(d) requires that all employees of the 

government or any law enforcement agency involved in the case 

shall keep all documents that disclose the name or any other 

information concerning a child in a secure place. A secure place

is one in which a person who has no reason to know the contents 

of the documents cannot access those documents. “A child” is a 

person who is under age 18 who is or alleged to be a victim of a 

crime of physical or sexual abuse or a witness to a crime 

committed against another person. These secured documents or 

the information in them may only be released to persons who 

“need to know” by reason of their participation in the criminal 

proceeding.

Employees of the government or law enforcement officers who 

violate these privacy protections are guilty of an offense under 18 

U.S.C. §403. This section of the federal criminal code punishes 

violations of the privacy of child victims and child witnesses. A

knowing or intentional violation of the privacy protection in 18 

U.S.C. §3509 is criminal contempt. This criminal contempt is a

felony that may be punished by imprisonment, or fine, or both.
220 Chapter 109A Felonies

7.10 Statute of Limitations

For physical and sexual abuse involving a child under the age of 

18 years, 18 U.S.C. §3282 extends the statute of limitations to 

allow prosecutions until the child reaches her or his 25th 

birthday.

Example: A tribal or BIA officer is approached by a 21-year-old 

adult. The officer has established good rapport with this person 

as a result of his community policing. This adult reveals to the 

officer that when he was 15 years old, he received therapy in 

Indian Country from an IHS psychologist. During several 

sessions, the psychologist touched this young man’s genitalia. 

Based on these facts, the tribal or BIA officer may determine that 

the crime of Sexual Contact of a Minor has been committed and 

that crime is still within the statute of limitations because the 

victim has not reached his 25th birthday.
1 See 18 U.S.C. §1153.

2 See United States v. Norman T (A Juvenile), 129 F.3d 1099 

(10th Cir. 1997).

3 See United States v. Sanders, 30 F. 3d 140, 1994 WL 395877 

(9th Cir. 1994), cert. denied, 514 Y,S, 1007 (1995) (unpublished).

4 See United States v. Jones, 104 F.3d 193, 197 (8th Cir. 1996), 

cert. denied, 520 U.S. 1282 (1997).

5 See United States v Graves, 4 F.3d 450 (6th Cir. 1993). 

6 See United States v. Fulton, 987 F.2d 631 (9th Cir. 1992). 

7 905 F.2d 15 (2d Cir. 1990).

8 See United States v. Barrett, 937 F.2d 1346 (8th Cir.), cert 

denied, 502 U.S. 916 (1991).

9 See United States v. Yazzie, 976 F.2d 1252 (9th Cir. 1992).

10 See United States v. Gavin, 959 F.2d 788, 791 (9th Cir. 1992).

 
Rights of Inmates 221

Chapter Eight

Rights of Inmates

8.1 Role of the Detention Officer...............................221

8.2 Balancing Rights and Interests ............................222

8.2.1 Religious Expression ...........................................224

8.2.2 Censoring/Rejecting Incoming Mail.....................227

8.2.3 Censoring/Rejecting Outgoing Mail .....................229

8.2.4 Censorship and Due Process ................................230

8.2.5 Inmate Communication with the Media...............231

8.2.6 Visiting ...............................................................231

8.3 Unreasonable Searches and Seizures....................232

8.4 Visitor Searches ..................................................235

8.5 Cross-Gender Searches ........................................236

8.6 Officer/Inmate Sexual Acts or Contact ................237

8.7 Cruel and Unusual Punishment............................237

8.7.1 Use of Force Under Eighth Amendment ...............239

8.7.2 Inadequate Medical Care .....................................241

8.7.3 Mental Health and Suicide...................................244

8.7.4 Sexual Assault and Rape......................................245

8.7.5 Overcrowding and Facilities ................................247

8.7.6 Due Process.........................................................249

8.7.7 Access to Courts..................................................254

8.8 Barriers to Suits in Federal Court ........................255

8.8.1 Writ of Habeas Corpus.........................................257

8.1 Role of the Detention Officer

The lawful functioning of a detention facility, correctional center, 

or jail depends heavily on officers responsible for carrying out the 

institution’s policies and regulations. Presumably, these policies 

and regulations are based on constitutional principles and 

comply with statutory requirements. 

The primary role of the detention officer and detention facility is 

to maintain internal order and discipline and to create and 

maintain a safe environment for the inmates so that each inmate 
222 Rights of Inmates

may achieve rehabilitation. By keeping order and maintaining a 

safe environment, the detention/correctional officer becomes an 

influential force in an inmate’s life and plays a role in an inmate’s 

positive change.

Keeping order and discipline must be carried out within the limits 

set by the Constitution and the Indian Civil Rights Act; officers 

are responsible for carrying out their duties according to the 

policies, rules, and regulations of the facility. Understanding and 

protecting the rights of inmates is the duty of every detention 

officer.

8.2 Balancing Rights and Interests

Sometimes an inmate’s rights come into conflict with the

legitimate interests of the government. For example, although 

there is a guaranteed right of free speech, that right of free speech 

does not extend to making false and malicious statements that 

harm the reputation of another person.

This is no less true in jails and correctional facilities where an 

inmate may desire to exercise a constitutional right that conflicts 

with the government’s desire to restrict the exercise of that right.

When confinement and the needs of the penal institution impose 

limitations on rights, such as the right to free speech, the courts 

must decide whether the government’s interest outweighs the 

inmate’s interest in exercising the constitutional right.

In Bell v. Wolfish,1 the Supreme Court noted that "convicted 

prisoners do not forfeit all constitutional protections by reason of 

their conviction and confinement in prison.” This is because 

“[l]awful incarceration brings about the necessary withdrawal or 

limitation of many privileges and rights, a retraction justified by 

the considerations underlying our penal system.”2 Thus, while 
Rights of Inmates 223

inmates may lose many of their freedoms at the prison gate, they 

retain “those rights [that are] not fundamentally inconsistent 

with imprisonment itself or incompatible with the objectives of 

incarceration.”3

In Turner v. Safley,4 the Supreme Court balanced the inmate’s 

constitutional right against the prison, jail, or detention center’s 

interests by holding that when a prison regulation interferes with 

an inmate’s constitutional right, the regulation is valid if:

• the regulation is reasonably related to a limited number of 

legitimate penological interests; and

• there is reasonable relationship between a restriction on an 

inmate’s constitutional right and the claimed legitimate 

penological interest.

Legitimate penological interests include:

• Deterrence of crime;

• Rehabilitation of offenders;

• Institutional security and order; or

• Equal opportunity.

Legitimate penological interests, unless otherwise directly related 

to security concerns, do not include:

• Administrative convenience;

• Saving money; and

• Efficiency.

Under Turner, courts examine the relationship between a 

restriction on an inmate’s constitutional right and a legitimate 

penological interest listed above to determine if the relationship 

is reasonable by inquiring:
224 Rights of Inmates

(1) whether there is a valid, rational connection between 

the prison policy and the legitimate governmental interest 

put forward to justify it; 

(2) whether there are alternative means of exercising the 

right; 

(3) what impact that accommodation of the constitutional 

right will have on guards, on other inmates, or on the

allocation of prison resources; and

(4) whether the regulation or policy is an “exaggerated 

response” to prison concerns. 

The burden is on an inmate to show that a challenged regulation 

is unreasonable.5 The Turner balancing test applies in every 

situation where the inmates’ constitutional rights come into 

conflict with a legitimate penological interest. These include:

• First Amendment issues—

religious practices and publication rejection;

• Fourth Amendment issues—

searches;

• Fifth Amendment issues—

due process; and

• Eighth Amendment issues—

cruel and unusual punishment. 

8.2.1 Religious Expression

Inmates have the right to practice religion and attend religious 

services, but that right is not without limitations. Restriction of 

the right to free exercise of religion must be reasonably and 

substantially justified by considerations of prison discipline and 

order.6
Rights of Inmates 225

Congress has provided additional protections to inmates with the 

passage of the Religious Land Use and Institutionalized Persons 

Act (RLUIPA).7 RLUIPA applies to a program or activity that 

receives Federal financial assistance as well as “commerce with 

foreign nations, among the several States, or with Indian tribes,” 

so it applies to facilities managed by the BIA or by tribal 

governments:

No government shall impose a substantial burden on the 

religious exercise of a person residing in or confined to an 

institution, as defined in [42 U.S.C. §1997], even if the 

burden results from a rule of general applicability, unless 

the government demonstrates that imposition of the 

burden on that person –

(1) is in furtherance of a compelling governmental 

interest; and 

(2) is the least restrictive means of furthering that 

compelling governmental interest. 

Adherents of a “minority religion,” such as those persons 

practicing traditional medicine, must be afforded "a reasonable 

opportunity of pursuing his faith comparable to the opportunity 

afforded fellow prisoners who adhere to conventional religious 

precepts,” such as allowing Muslim inmates to grow a short beard 

that cannot hide contraband8 or Navajo inmates to consume 

venison and wear a headband during an annual Ghost Feast.9

However, “prison officials need not provide exactly the same 

religious facilities or personnel to prisoners of every faith” to 

accommodate religious practices.10 RLUIPA does not, for 

example, require a federal, state, or tribal government to provide, 

furnish, or supply every inmate with the materials, facilities and 

staff to exercise the religion of their choosing; failing to do so is 

not a substantial burden under the statute. Likewise, the Free 
226 Rights of Inmates

Exercise Clause does not require that inmates “have the 

particular clergyman of his choice provided to him.”11

Facilities may also be restricted if the restriction is reasonably 

related to one of a limited number of legitimate penological 

interests and there is reasonable relationship between a 

restriction on an inmate’s constitutional right and the claimed 

legitimate penological interest.12 Courts have upheld refusals by 

prison officials to allow inmate spiritual leaders to conduct a Pipe 

Ceremony when no outside Pipe Bearer is available because of 

security concerns, or to allow a sweat lodge ceremony when “the 

ceremony requires the use of an axe to chop wood for a fire, red 

hot stones to heat the lodge, and a pitchfork to transport the 

stones from the fire to the lodge interior.”13

Courts require specific facts in making a determination under 

Turner, however. In Thomas v. Gunter (“Thomas I”),14 prison 

officials restricted use of a sweat lodge without offering any 

specific facts to demonstrate that the restriction was reasonably 

related to a legitimate penological interest. The case was 

remanded and subsequently appealed.

On appeal in Thomas v. Gunter (“Thomas II”),15 prison officials 

provided specific facts that the restriction on a sweat lodge 

located by a “truck delivery entrance where deliveries were made 

during business hours [...]posed a security risk and required 

defendants to station more guards at the entrance” and asserted 

that “daily access to the sweat lodge at the requested time would 

have been in direct conflict with scheduled [work, educational, 

and vocational] activities.” The additional facts allowed the court 

to determine that the regulation satisfied the Turner test. 

Nonessential elements of religion may also be withheld from 

inmates in a disciplinary segregation unit, even if provided to 

inmates in the general population. 
Rights of Inmates 227

Examples of other types of restrictions that have been 

unsuccessfully challenged include:

• Attendance at religious services when the inmate is temporarily 

segregated;

• Wearing religious clothing or medallions that could be mistaken 

for gang identification;

• Ability to wear long hair or beards that could conceal 

contraband;

• Participation in special ceremonies outside of prison facilities 

(sweat lodge); and

• Refusal to provide special meals which comply with religious 

diets.

8.2.2 Censoring/Rejecting Incoming Mail

Receipt of mail by inmates is protected by the Free Speech clause 

of the First Amendment. However, as with other rights, this right 

is not absolute and incoming mail is subject to greater restriction 

than outgoing mail. Publications are often challenged. A

“publication” is defined as “a book (for example, novel, 

instructional manual), or a single issue of a magazine or 

newspaper, plus such other materials addressed to a specific 

inmate as advertising brochures, flyers, and catalogues.”16

In Thornburgh v. Abbott,17 the Supreme Court held that the 

Turner test must be used to determine whether specific 

publications or other general non-legal mail may be censored. A 

publication cannot be rejected “solely because its content is 

religious, philosophical, political, social or sexual, or because its 

content is unpopular or repugnant.”18

However, incoming publications found to be detrimental to 

institutional security may be rejected when the warden 

personally makes the determination that the publication is 
228 Rights of Inmates

“detrimental to the security, good order, or discipline of the 

institution or [...]might facilitate criminal activity.”19 The warden 

is prohibited from establishing an excluded list of publications: 

each issue of a subscription publication is to be reviewed 

separately. 

In Bell v. Wolfish,20 the U.S. Supreme Court held that allowing 

inmates to receive hardback books only from a publisher, book 

club, or bookstore, does not violate the First Amendment rights 

of inmates in light of the smuggling problems that could be 

created if books could enter the institution from any source.

Materials that tend to cause strong feelings of anger, indignation, 

or other type of upset are known as inflammatory materials. In 

the Eighth Circuit, courts have consistently held “[a] regulation 

that allows for censorship of incoming items that are likely to 

incite violence is related to the institutional needs of maintaining 

a controlled and secure environment among the prison 

population.”21 Courts must be deferential to the prison officials' 

views of what material may be inflammatory.22

BOP regulations state that publications cannot be rejected solely 

because the content is sexual in nature, but prison rules 

restricting sexually explicit or obscene materials may be 

considered reasonably related to legitimate penological interests 

in security, discipline, order, public safety, and rehabilitation 

when additional facts are given.23

A policy prohibiting commercially available pornography is valid 

where it is reasonably related to the penological goal of 

rehabilitating sex offenders, even though such offenders

represent only a small fraction of the entire prison population, 

where the need to rehabilitate such offenders is much more 

important than the rights of other inmates to view the material 

in question.24
Rights of Inmates 229

A regulation prohibiting inmates from receiving sexually explicit 

materials through the mail is also related to legitimate 

penological interests where inmates sexually harassed guards by 

displaying publications containing frontal nudity and engaged in 

unwanted sexual behavior25 or where sexually explicit materials 

are generally highly valued as barter in prison and may result in 

prohibited sexual activity.26

Regulations must not be underinclusive, however. A policy of 

prohibiting inmates from receiving obscene materials is not 

reasonably related to a legitimate penological interest where the 

policy bans one type of sexually explicit material (such as reading 

material) but not others (such as commercial pornography).27

8.2.3 Censoring/Rejecting Outgoing Mail

Censorship (refusing to mail the prisoner’s letter) is permissible 

if it furthers an important or substantial governmental interest –

security, order, and rehabilitation – and it is not for the reason of 

suppressing expression. In other words, mail cannot be censored 

simply because the jail administrator wants to eliminate 

unflattering or unwelcome opinions or factually inaccurate 

statements. 

Inmates and their correspondents retain a First Amendment 

right of free speech, and that right has fewer competing interests 

when applied to outgoing mail. In Procunier v. Martinez,28 the 

Supreme Court held “outgoing mail presents substantially less of 

a security threat than does incoming mail,” which makes the 

Turner test less applicable.

Recall that under Turner, the burden is “on the prisoner 

challenging the regulation, not on the prison officials, to show 

that there are obvious, easy alternatives to the regulation” 

restricting incoming mail.29 Under Martinez, the facility, not the 
230 Rights of Inmates

inmate, has the burden of proof that there is no less restrictive 

way of responding to the threat other than refusing to mail the 

letter.

In order to censor or reject an outgoing piece of mail under 

Martinez, the facility must make a stronger case than required 

under Turner that the letter actually threatens security of the 

facility or rehabilitation of the inmate. In general, jail staff may 

read all “non-legal” mail before it is mailed to determine if there 

is a threat to security of the facility or rehabilitation of the inmate, 

such as coded messages, maps or plans of the facility, escape 

plans, or other like communications. 

8.2.4 Censorship and Due Process

Censoring or rejecting letters or publications, whether incoming 

or outgoing, raise another constitutional concern of due process. 

For this reason, the Supreme Court outlined the following 

requirements in Martinez when the decision to censor or withhold 

delivery of a particular letter has been made:

•The inmate must be notified of the rejection of a letter written 

by or addressed to him;

•The author of the letter must be given a reasonable opportunity 

to protest the censorship decision; and

•Complaints about rejection must be referred to a prison official 

other than the person who originally made the decision.

Special rules apply to “legal mail,” or mail to inmates from 

lawyers, persons working for lawyers, courts, and other 

government officials. Jail or prison staff cannot read legal mail 

because it may be protected by a legal privilege (attorney-client), 

as well as by the Constitution. Inmates have the right to freely 

correspond with the courts, lawyers, people working for lawyers, 

and government officials. 
Rights of Inmates 231

While prison officials may not read legal mail, it may be possible 

to get a search warrant to legally monitor an inmate’s mail and 

legal mail may be opened in the presence of the inmate and 

examined at that point for contraband. Because publication 

censorship is such a sensitive legal area, prison officials should 

ensure the official responsible for decisions to reject incoming 

mail/publications thoroughly understands the legal tests, 

agency policies, rules and rejection criteria involved in rejection.

8.2.5 Inmate Communication with the Media

In Pell, the U.S. Supreme Court held that while inmates have 

First Amendment right to free expression, inmates have no right 

to face-to-face communication with the media. Because 

alternative means of correspondence such as writing letters exist, 

there are reasonable alternatives to exercising the First 

Amendment right. Likewise, the press does not have a right of 

access to prisons or inmates.30 Mail between an inmate and 

television, radio stations, newspaper reporters, does not have any 

special privilege afforded to it. 

8.2.6 Visiting

While visitation in jails and prisons implicates the First 

Amendment right of free association, the right for prisoners is 

very limited. Unless an inmate is visiting with his attorney, visits 

and phone calls can be monitored with notice to all parties. In

Block v. Rutherford,31 the Supreme Court upheld a general ban 

on contact visits in a county jail, noting the smuggling threat 

posed by such visits and the difficulty of carving out exceptions 

for certain detainees. Some correctional facilities may allow 

conjugal visits as a matter of policy, but inmates do not have any 

right to contact visits and the institution may choose to allow or 

deny contact visits at its discretion.32
232 Rights of Inmates

In Overton v. Bazzetta,33 the Supreme Court also upheld 

withdrawal of visitation privileges for a limited period as a regular 

means of effecting prison discipline, regulations requiring 

children to be accompanied by a family member or legal 

guardian, and limiting the total number of visitors that inmates 

may receive.

8.3 Unreasonable Searches and Seizures

In prison, “official surveillance has traditionally been the order of 

the day”34 but a prisoner is also entitled to the protection against 

unreasonable searches and seizures under the Fourth 

Amendment and ICRA, even if the expectation of privacy is lesser 

than that of the general public:35

“[T]he right to be free from unreasonable searches and 

seizures is one of the rights retained by prisoners subject, 

of course, to such curtailment as may be made necessary 

by the purposes of confinement and the requirements of 

security.”36

In practical terms, search warrants are generally not required for 

all types of searches and are seldom required for the searches of 

cells and cell blocks that might be made in a prison or jail by the 

facility staff based on the purposes of confinement and 

requirements of security. “The inherent characteristics of a 

prison society...are such that guards must make prompt 

decisions as search problems confront them. The governmental 

interest in preventing and detecting smuggling outweighs the 

individual interest in perfect justice.”37

In United States v. Palmateer,38 a warrantless search of the 

plaintiff prisoner's cell was reasonable within the meaning of the 

Fourth Amendment. In affirming the conviction of the defendant 
Rights of Inmates 233

inmate for possession of narcotic drugs found during the search 

in question, the court stated that the necessity of maintaining 

proper security and discipline of prisoners served as a basis for 

dispensing with warrant requirements. Searches of inmates and 

their persons face increasingly higher levels level of scrutiny by 

the courts when they involve frisks, strip searches, or body cavity 

searches.

A “pat down” or frisk is a quick and limited search which is done 

by patting the outer clothing to detect, through the sense of 

touch, if a concealed weapon is being carried. Random pat 

downs, or frisks, are usually held to be reasonable by reviewing 

courts. Pat downs that are conducted solely for the purpose of 

harassing inmates, rather than for a legitimate penological 

interest, may lead to inmate lawsuits and liability for the facility.

Federal appeals courts across the nation have uniformly 

condemned the traditional practice of strip searching everyone 

booked into the jail, regardless of the reason for arrest, unless 

there is real suspicion that the person might be carrying 

contraband:39

“Real suspicion' justifying the initiation of a strip search 

is subjective suspicion by objective, articulable facts...The 

objective, articulable facts must bear some reasonable 

relationship to suspicion that something is concealed on 

the body of the person to be searched...”40

By the time the arrested person is taken to the detention center, 

the police officer should already have conducted the search 

incident to arrest and, theoretically, should already have found 

any evidence on the person of the arrestee. Detention officers 

should search for contraband, not evidence of crimes for which 

the detainee has been arrested, because they usually lack 

probable cause to conduct an evidence search. 
234 Rights of Inmates

Just as strip searches are disfavored by courts, blanket policies 

subjecting all newly-arrested detainees in a local correctional 

facility to visual body cavity searches have been condemned as

unconstitutional.41

In order for a visual body cavity search to be found reasonable 

under the circumstances, there must be either “particularized 

suspicion, arising either from the nature of the charge or specific 

circumstances relating to the arrestee and/or the arrest.”42 Body 

cavity searches should be performed when there are objective 

facts known to the detention officer and the officer can 

reasonably conclude from those facts, based on her or his 

experience, that the inmate may be concealing contraband. 

Best practices for strip searches and body cavity searches 

include:

• Written policy or guidance limiting strip searches or body cavity 

searches of an arrested person should be strictly followed;

• Unnecessary observation by others should not be allowed 

during a strip search or body cavity search;

• Reasons for searching should be relative to the security of the 

facility, such as contact visits or trips outside the secure 

perimeter of the jail;

• Reasons for conducting a strip search or body cavity search

should be carefully documented;

• Strip searches or body cavity searches should never be 

conducted for the sole purpose of obtaining evidence with only 

reasonable suspicion.

• Body cavity searches should be done only by medical staff and 

in a reasonable manner respecting the inmate’s dignity and in as 

private a manner as possible; and

• A higher standard of cause—such as probable cause—should 

be adopted and used when conducting strip searches or body 

cavity searches.
Rights of Inmates 235

Random blood or urine tests in prison do not violate the Fourth 

Amendment when collection methods are reasonable and when 

the prison system's security interests in detecting the 

unauthorized use of narcotics are implicated.43 Further, urine 

and blood tests are neither communicative nor testimonial and 

are therefore not subject to the privilege against selfincrimination.44

As to blood tests, “such tests are commonplace, the quantity of 

blood extracted is minimal, and for most people the procedure 

involves virtually no risk of harm, trauma, or pain.”45 However, 

failing to collect samples in a reasonable way—such as forced 

catheterization for urine samples—may render the search 

unreasonable.46

8.4 Visitor Searches

In general, visitors to a detention center, jail, or prison have more 

privacy protections than inmates, but less than they would have 

on the street. The courts have approved routine searches of 

visitors, such as pat downs, searches of purses and briefcases, 

and requiring visitors to pass through magnetometers.

A more intrusive search, such as a strip search, requires 

reasonable suspicion. To justify the strip search of a particular 

visitor under the reasonable suspicion standard, prison officials 

must point to specific objective facts and rational inferences that 

they are entitled to draw from those facts in light of their 

experience.47 “Inchoate, unspecified suspicions fall short of 

providing reasonable grounds to suspect that a visitor will 

attempt to smuggle drugs or other contraband into the prison.”48

Even if the detention officer has reasonable suspicion to believe 

that the visitor may have contraband, the officer can only request 
236 Rights of Inmates

that the visitor submit to a strip search. The visitor can refuse, 

be denied a visit with the inmate, and leave the facility.

A jail cannot grant a contact visit with an inmate on the condition 

that the visitor give up his or her constitutional right against an 

unreasonable search and seizure. This means that the facility 

cannot require a visitor, for whom no reasonable suspicion exists, 

to submit to a strip search before the visitor will be allowed to see 

the inmate. 

8.5 Cross-Gender Searches

Issues concerning inmate privacy and cross-gender supervision 

are unresolved among circuits. Cross-gender supervision means 

that a male or female officer supervises, observes, or pat searches 

an inmate or arrestee of the opposite gender.

In Grummet v. Rushen,49 the Ninth Circuit upheld pat-down 

searches of male inmates by female officers that included the 

groin area. Analyzing these claims under both the Fourteenth 

and Fourth Amendment, the court concluded that the pat-down 

searches did not violate the privacy interests of the male inmates 

and found the cross-gender aspect of the searches “reasonable” 

because they were done briefly and professionally while inmates 

were fully clothed.

In Timm v. Gunter,50 the Eighth Circuit held that cross-gender

pat-down searches of male inmates by female officers did not 

violate male inmates' privacy rights. The Court concluded that 

prohibiting female officers from conducting pat-down searches, 

which included the groin area of male inmates “[could] severely 

impede overall internal security.”

In Jordan v. Gardner,51 however, the Ninth Circuit held that 

“routine or random clothed body searches of female inmates 
Rights of Inmates 237

which include touching of and around breasts and genital 

areas...by male corrections officers” constituted an objectively 

cruel and unusual condition of confinement in limited 

circumstances when there is psychological impact from the 

perspective of the female inmates.

8.6 Officer/Inmate Sexual Acts or Contact 

Sexual acts or sexual contacts between an officer and inmate are 

federal felonies, as described in Chapter 109A Felonies.

An officer who knowingly attempts to engage or actually engages 

in a sexual act with an inmate (a ward) has committed sexual 

abuse of a ward under 18 U.S.C. §2243(b). This crime is 

punishable by a fine, or imprisonment for up to fifteen years, or 

both. 

One of the sexual contact offenses with which an officer can be 

charged and prosecuted is abusive sexual contact of a ward, 

under 18 U.S.C. § 2244(a)(4). Abusive sexual contact of a ward is 

a federal felony and carries a maximum penalty of a fine, two 

years imprisonment, or both.

8.7 Cruel and Unusual Punishment

Inmates have a right to be free of cruel and unusual punishment 

under the Eighth Amendment and the Indian Civil Rights Act; 

most lawsuits involving Constitutional violations are based on 

inappropriate use of force, access to medical care, failure to 

protect, overcrowding and other conditions of confinement. The 

basic concept underlying the Eighth Amendment is “nothing less 

than the dignity of man.”52

To incarcerate, society takes from prisoners the means to provide 

for their own needs. Prisoners are dependent on prison officials 
238 Rights of Inmates

to provide food, clothing, and necessary medical care. A prison's 

failure to provide sustenance for inmates “may actually produce 

physical ‘torture or a lingering death.’”53 If government fails to 

fulfill its obligation to provide for inmates, the courts have a 

“responsibility to remedy the resulting Eighth Amendment 

violation.”54

Note that the Eighth Amendment does not provide any rights 

specifically to pre-trial detainees, because they have not yet been 

convicted. Pretrial detainees have been arrested based on 

probable cause, but are awaiting trial and have not yet been 

convicted of any crime. Pretrial detainees are normally housed in 

jail while awaiting trial because there is cause to believe that they 

are dangerous or because they are unable to make bail. In reality, 

however, most jails are used to house persons convicted of minor 

crimes as well.55

Unlike convicted prisoners, the government has no right to 

punish pretrial detainees at all. Therefore, the proper standard 

for analyzing conditions of confinement for pretrial detainees 

arises under the due process clause of the Fifth and Fourteenth 

Amendments instead of the Eighth Amendment. The inquiry is 

whether the pretrial detainees have been denied their liberty 

without due process. The court will not find a denial of due 

process unless the conditions of confinement amount to 

punishment of the detainee.56

To address this disparity, the Supreme Court has held that a pretrial detainee's rights are “at least as great as the Eighth 

Amendment protections available to a convicted prisoner,”57 but 

it repeatedly has left open the question of whether pre-trial 

detainees are entitled to greater rights.58 The Courts of Appeals 

generally have applied the same constitutional standard to 

convicted inmates and pre-trial detainees.59 Pre-trial detainees in 

the federal courts are required to be confined “in a corrections 
Rights of Inmates 239

facility separate, to the extent practicable, from persons awaiting 

or serving sentences or being held in custody pending appeal.”60

8.7.1 Use of Force Under Eighth Amendment

While detention and correctional officers are authorized to use 

force against inmates in appropriate circumstances, that power 

is derived from penological interests rather than an interest in 

search or seizure. Thus, many uses of force in a corrections 

setting are governed by the Eighth Amendment rather than the 

Fourth Amendment. Under the Eighth Amendment, uses of force 

are reviewed with a subjective standard rather than an objective 

reasonableness standard. Corrections officers must be able to 

understand and apply use of force concepts from both the Fourth 

and the Eighth Amendments.

In Whitley v. Alberts,61 the Supreme Court found that “the 

infliction of pain in the course of a prison security measure ... 

does not amount to cruel and unusual punishment simply 

because it may appear in retrospect that the degree of force 

authorized or applied for security purposes was unreasonable.” 

Rather, the Court held in Hudson v. McMillan,62 that “whenever 

prison officials stand accused of using excessive physical force in 

violation of the Cruel and Unusual Punishments Clause,” the 

issue is “whether force was applied in a good faith effort to 

maintain or restore discipline, or maliciously and sadistically to 

cause harm.”

In deciding whether the force used was excessive under the 

Eighth Amendment, the court must consider five factors:

• What was the reason for the use of force?

• How much force was actually used?

• What were the extent of the injuries sustained by the inmate?
240 Rights of Inmates

• Would a reasonable corrections officer have perceived the threat 

as one which required the use of force?

• What efforts were made to temper the use of force?

The Eighth Amendment prohibits use of force “totally without 

penological justification.” In Hope v. Pelzer,63 the Court drew a 

careful distinction by stating “controlling an emergency situation 

and maintaining order are legitimate penological justifications, 

but when safety concerns have abated or an emergency has been 

dispelled, the justification may disappear.”64

Generally speaking, the use of force may be justified under the 

Eighth Amendment if a reasonable detention officer, under the 

circumstances, believes that there are no other available 

alternatives, and the force is used for:

• Enforcing prison rules and discipline, only when alternatives 

less than force cannot accomplish enforcement and discipline;

• Protecting property; or

• Defense of self or others.

In assessing the use of force, “the extent of the injury suffered by 

[the] inmate is one factor,” but an Eighth Amendment excessive 

force claim can be established even without showing “serious 

injury.”65

Given the serious consequences in using deadly force under the 

Eighth Amendment, its proper use is much more limited than the 

use of non-deadly force. Officers need to be very familiar with 

guidance from the Fourth Amendment use of force concepts 

found in the Legal Division Handbook as well their agency’s policy 

about the use of deadly force:

• Deadly force is the use of any force that is likely to cause death 

or serious physical injury.
Rights of Inmates 241

• Deadly force may be used in self-defense or in the protection of 

others from death or serious bodily injury.

Force can never be used to punish inmates; officers who beat 

prisoners for the purpose of inflicting punishment face agency 

discipline, up to and including termination, civil damages and 

criminal charges. A supervisor who ignores improper use of force 

may also face criminal or civil liability for failing to properly 

supervise the officer.

In U.S. v. McQueen,66 a detention officer was charged with 

conspiring to deprive inmates of their rights and obstruction of 

justice and sentenced to twelve months imprisonment when he 

administered a beating to an inmate and sanctioned a fist-fight 

between other inmates.

In U.S. v. Strange,67 a detention officer was charged with one 

count of conspiracy to deprive an inmate of his civil rights and 

one count of deprivation of those rights and sentenced to 21 

months imprisonment when he beat an inmate in retaliation for 

assaulting a deputy sheriff.

In U.S. v. Bailey,68 a detention officer was charged with 

conspiracy to deprive inmates of their civil rights, deprivation of 

rights under 18 U.S.C. § 242, obstruction of justice, and perjury 

and sentenced to 41 months imprisonment when he and another 

detention officer beat an inmate and bragged to other officers 

about the assault.

8.7.2 Inadequate Medical Care

Deliberate indifference to serious medical needs of prisoners 

constitutes the unnecessary and wanton infliction of pain, 

whether the indifference is manifested by “prison doctors in their 

response to the prisoner's needs, by prison guards in 
242 Rights of Inmates

intentionally denying or delaying access to medical care, or 

intentionally interfering with the treatment once prescribed.”69

An inadvertent failure to provide adequate medical care, such as 

when a doctor is negligent in diagnosing or treating a medical 

condition, is not by itself “an unnecessary and wanton infliction 

of pain.” Instead, a prisoner must allege acts or omissions 

sufficiently harmful to evidence deliberate indifference to serious 

medical needs.70

Medical staff can violate the Eighth Amendment by refusing to 

treat inmates. A delay in treating non-life-threatening but painful 

conditions may constitute deliberate indifference if the delay 

exacerbated the injury or unnecessarily prolonged a prisoner's 

pain. Consciously choosing a less effective treatment for reasons 

of cost or convenience to the prison can also constitute deliberate 

indifference.71

A determination of deliberate indifference requires the court to 

look at two elements:

• Seriousness of the prisoner’s medical need or risk of injury; and

• Response to the medical need.

A serious medical need is one “for which treatment has been 

recommended or for which the need is so apparent that even 

laymen would recognize that care is required.”72

While some courts have required a condition to be lifethreatening or cause excruciating pain, others have noted that 

factors might include (1) whether a reasonable doctor or patient 

would perceive the medical need in question as “important and 

worthy of comment or treatment,” (2) whether the medical 

condition significantly affects daily activities, and (3) “the 

existence of chronic and substantial pain.”73
Rights of Inmates 243

The risk “must be cognizable, but the consequences of that risk 

need not yet have materialized, in order to define the time to begin 

to determine whether the defendant disregarded the risk.”74 The 

applicable mens rea of deliberate indifference demands subjective 

knowledge of a substantial health risk and disregard for the 

substantial health risk.75

Detention officers or other custody staff are often found by courts 

to be deliberately indifferent to a serious medical need if they 

prevent an inmate from accessing medical staff or treatment. 

Examples of ways in which custody staff may prevent access to 

medical staff or treatment:

• Custody staff fails to convey written or oral requests for medical 

care through the appropriate channels;

• Custody staff fails to inform medical personnel of an inmate 

with an emergency during the night;

• Custody staff ignores a medical order for bed rest or light work 

duty for an inmate, and instead require the inmate to resume a 

strenuous workload; or

• Custody staff ignores a medical order in favor of security 

regulations.

Courts have also given increasing recognition to the right of an 

inmate to receive hormone therapy or continue gender 

reassignment treatment; the Seventh and Eighth Circuits have

previously held that gender identity disorders may constitute a 

serious medical need to which prison officials may not be 

deliberately indifferent without violating the Eighth 

Amendment.76
244 Rights of Inmates

8.7.3 Mental Health and Suicide

Courts have repeatedly held that treatment of the mental 

disorders of mentally disturbed inmates is a “serious medical 

need.”77 Suicidal ideation or previous suicide attempts also 

present a serious medical need under Estelle.78

It is well settled that detention officers have a legal duty under 

both the United States Constitution and the Indian Civil Rights 

Act to protect inmates from themselves. Therefore, officers need 

to understand:

• How the duty to protect is defined; and

• What steps the facility must take to carry out this duty to 

protect required by the law.

Under tort law, the duty to protect means that the detention 

officer must take reasonable steps to protect those in custody 

from themselves and others. The duty to protect will depend on 

the facts and circumstances of that particular inmate. What is 

reasonable for one inmate who is not a serious suicidal threat 

may not be reasonable for another inmate who, for example, has 

attempted suicide in the past.

As in the case of inadequate medical care, courts will examine 

whether officers and the facility were deliberately indifferent to 

the medical or safety needs of the inmates. Best practices to 

reduce the most common allegations of deliberate indifference 

are:

• Train staff in recognizing behavioral indicators of potential 

suicides, such as statements from the inmates, reports from 

arresting officers, or self-destructive behaviors;

• Identify suicide risks or implement screening procedures such 

as screening questionnaires;
Rights of Inmates 245

• Monitor inmates by making rounds at proper intervals, 

observing cameras, and making sure audio/visual monitoring 

works correctly; and

• Respond by providing immediate emergency care and 

contacting emergency medical services.

Detention officers cannot be held liable for a delay in medical 

personnel’s arrival once jail staff have contacted them, but there 

might be liability if delays are due to the distance that must be 

traveled in order to provide medical care. 

In Indian Country, getting prompt attention from medical 

personnel may be difficult because of distance or location, thus 

detention officers must be adequately trained to respond to 

suicide attempts as medical emergencies and respond as quickly 

as possible.

8.7.4 Sexual Assault and Rape

A jail or prison has a duty to maintain generally acceptable levels 

of safety in the institution. While the institution cannot 

guarantee an inmate’s safety, it has a duty not to be deliberately 

indifferent to the safety needs of inmates.79

In Farmer v. Brennan, the Supreme Court held that deliberate 

indifference “entails something more than negligence, but is 

satisfied by something less than acts or omissions for the very 

purpose of causing harm or with knowledge that harm will 

result.” Thus, it is the equivalent of acting recklessly.80

In other words, deliberate indifference occurs when a prison 

official has actual knowledge that an inmate faces a substantial 

risk of serious harm and the official disregards the risk by failing 

to respond to the risk in a reasonable way.
246 Rights of Inmates

In Farmer, a transsexual inmate was transferred by federal 

prison officials from a correctional institute to a penitentiary—

typically a higher security facility with more troublesome 

prisoners—and placed in its general population. After the 

transfer, the inmate was beaten and raped.81

The court found that placing a transsexual inmate—especially 

one that projected feminine characteristics, was slightly built, 

and was a non-violent offender—into the general population at a 

high-security institution posed a significant threat to internal 

security in general and to the inmate in particular.

The Supreme Court emphasized that a prisoner “need not show 

that a prison official acted or failed to act believing that harm 

actually would befall an inmate; it is enough that the official 

acted or failed to act despite his knowledge of a substantial risk 

of serious harm.”82

Failure to protect usually manifests as inmate-on-inmate sexual 

assault or rape. Courts have held that a jury can infer deliberate 

indifference based upon any of a multitude of factors that are 

typically present in prisoner rape cases:

• deliberate failure of guards to patrol dormitories, particularly at 

night;83

• failure to consider the rape victim profile in making cell 

assignments;84

• failure to consider the victim's appearance, traits, or 

mannerisms that fits a profile for prisoner rape victims;85

• failure to protect where prison officials previously had 

acknowledged an inmate's vulnerability;86

• failure to transfer known or likely sexual predators to areas 

where they could be controlled;87

• housing inmates with known predators that have a history of 

coercing their cellmates for sex;88
Rights of Inmates 247

• knowingly placing an inmate in a cell with an HIV positive 

inmate who has a history of rape;89

• failing to provide protection despite actual knowledge that

threats of rape were made against an inmate;90

• failing to provide protection despite actual knowledge that one 

inmate had attacked the same inmate before;91

• denying formal requests to be removed from a cell because the 

inmate is being raped;92 or

• setting inmates up to be raped or attacked by other prisoners 

as a form of discipline.93

In 2003, Congress passed a sweeping federal law that was 

designed to eliminate the sexual assault of prisoners. The Prison 

Rape Elimination Act of 2003 (PREA) sets a “zero tolerance” 

standard for prison rape, requires data collection and analysis of 

prison rape, provides grants “to prevent and prosecute prisoner 

rape,” and directs the United States Attorney General (AG) to 

adopt “national standards for the detection, prevention, 

reduction, and punishment of prison rape.”94

The Department of Justice (DOJ) and the Department of 

Homeland Security (DHS) have since promulgated implementing 

regulations, pursuant to the statutory mandate to detect, 

prevent, reduce, and punish prison rape.95

Both Congress and the DOJ indicated that compliance with PREA

may reduce Eighth Amendment violations on the part of prison 

officials, but even if an agency complies fully with everything in 

the PREA regulations, it may still be in violation of the Eighth 

Amendment on different grounds.96

8.7.5 Overcrowding and Facilities

Conditions of confinement are often alleged to violate an inmate’s 

right to be free from cruel and unusual punishment; suits based 
248 Rights of Inmates

on overcrowding have become increasingly common in Indian 

Country. Crowding, by itself, does not amount to cruel and 

unusual punishment and is not per se unconstitutional, but 

crowding could produce conditions which cause the facility to 

violate the Eighth Amendment or the Indian Civil Rights Act, such 

as high levels of violence or illness:97

“Cramped conditions promote unrest and violence, making 

it difficult for prison officials to monitor and control the 

prison population...[O]vercrowding may prevent immediate 

medical attention necessary to avoid suffering, death, or 

spread of disease... [and] living in crowded, unsafe, and 

unsanitary conditions can cause prisoners with latent 

mental illnesses to worsen and develop overt symptoms.” 

To address the question of whether or not particular conditions 

rise to a level that violates a Constitutional right, courts look to 

whether there is a culpable state of mind on the part of prison 

officials and whether inmates have alleged, at a minimum, 

deliberate indifference to serious needs.98

The Bureau of Justice Statistics (BJS) has conducted an Annual 

Survey of Jails in Indian Country (SJIC) since 1998, with the 

exception of 2005 or 2006. In 1999, eleven facilities under a 

court order had restrictions on the maximum number of inmates 

held in custody. Other court orders or consent decrees 

restrictions from the Colville Nation and Navajo Nation tribal 

courts in the late 2000s involved items such as hygiene, 

cleanliness, and meals.

• No adequate ventilation system. The court noted that the one 

vent in the facility had been sealed because inmates were 

escaping through it.

• Outdated electrical system. Light bulbs routinely shorted out, 

there was no emergency lighting system installed, the wiring 
Rights of Inmates 249

sometimes sparked, and the circuits were overloaded when 

appliances were used.

• Health hazards. Holding cells, floors, toilets, and sinks were not 

sanitized; plumbing was inadequate and repaired with duct tape; 

cells were too small for the number of inmates placed in them 

and there was no space outside the cells for the inmates to move 

around; and there was no exercise area for the inmates.

• Severe overcrowding. Nearly 300 prisoners were crowded into 

five jails designed for only 113 people. Due to neglect and years 

of overcrowding, the jails were falling apart. Inmates slept on 

floors without mattresses or blankets wherever there was space 

– near leaking toilets, in the hallways, on the dining tables.

• Sanitation. The prison budget did not include money for 

sanitation supplies. The prisons failed to meet even minimal 

standards of sanitation, health, and safety.

• Food Budgets. One tribal jail received a food budget based on 

the design capacity of 17 prisoners, but regularly housed 60 

prisoners. The lack of a proper food budget led to inadequate 

nutrition.

As a result of these conditions, the tribal court ordered closure of 

two of the five tribal jails on the reservation, except for short-term 

confinement not to exceed 48 hours; maximum population limits 

for jails and cells were set; and the tribal legislature agreed to 

appropriate funds for updated facilities and improvements in fire 

safety, health care, nutrition, sanitation, exercise.

8.7.6 Due Process

The Due Process Clause prohibitis infringment of a prisoner's 

liberty interest by the government without due process of law; 

prisoners are afforded protection against arbitrary action by the

government.99
250 Rights of Inmates

Arbitrary action is an action taken by the government to deprive 

an inmate of life, liberty, or property without the due process of 

law as guaranteed by the Fifth and Fourteenth Amendments.100

To determine whether there has been arbitrary action or 

infringement on an inmate's liberty interest by the government 

without due process of law, courts look to the following factors:101

(1) whether the state has interfered with an inmate's protected 

liberty or property interest; and

(2) whether procedural safeguards are constitutionally sufficient 

to protect against unjustified deprivations. 

Some examples of safeguards include:

• Requirement of at least a twenty four (24) hour notice of 

charges, ability to call witnesses, present evidence, and be judged 

by impartial decision maker during disciplinary hearings;102

• Opportunity for defendants to make evidentiary showing that

defendant should be released on bail;103 and

• Restraint on “arbitrary deprivations” of liberty104 or arbitrary 

and purposeless use of authority.105

An inmate's due process rights are generally violated when 

conduct that is not proscribed by rules or policy is punished 

arbitrarily:

• Due process violation when charge failed to specify what rule 

inmate violated when inmate waved at visitor through security 

fence;106 and

• Due process violation when prisoner charged with offense had 

no fair warning or opportunity to know that behavior was 

unlawful.107

These rights are not absolute, however:
Rights of Inmates 251

• No due process violation when prisoner is not deprived of life, 

liberty, or property;108

• No due process violation when inmate was afforded hearing and 

opportunity to respond to allegations of misconduct, even when 

report was allegedly filed in retaliation;109

• No liberty interest in avoiding transfer to “less amenable and 

more restrictive quarters”110 in the same facility;

• No liberty interest in avoiding transfer to discretionary 

segregation;111

• No liberty interest in freedom from intrastate transfer to 

different facility;112

• No liberty interest in discretionary early release from valid 

sentence;113

• No liberty interest in parole unless prisoner has reasonable 

expectation of release;114 and

• No due process violation when prisoner was isolated without 

hearing pending criminal investigation after he killed fellow 

inmate.115

A liberty interest will be created by court order only if the decision 

results in an “atypical and significant deprivation in relation to 

the normal incidents of prison life.”116 Prison life includes many 

hardships that are not atypical or significiant deprivations of 

liberty:

• No atypical and significant hardship in withholding of 

opportunity to participate in work release;117

• No atypical and significant hardship in administrative 

segregation without showing of difference between conditions in 

segregation and conditions in general population;118

• No atypical and significant hardship in placement in 

discretionary segregation for 59 days;119 and
252 Rights of Inmates

• No atypical and significant hardship in placement in shared 

lockdown cell for 12 months with permission to leave only for 

showers, medical appointments, and family visits.120

When a liberty interest is implicated (generally life, liberty, or 

property), and when a prison official intends to take action 

against that interest, due process protections require committed 

offenders be given notice and opportunity to be heard before 

being deprived of privileges.121

Note that in the correctional setting, procedural due process is 

significantly reduced for inmates compared to procedural due 

process generally as a result of balancing of penological interests 

against individual rights.

When facility rules are violated, disciplinary measures must be 

quickly and effectively enforced, and the offending inmates held 

accountable; on the other side of the balance is the inmates’ 

interest in not being punished for violations they did not commit. 

Violations can have serious consequences for inmates:

• An inmate may lose a level of freedom and the privileges 

associated with being in the general population; or

• An inmate may lose or be denied credits, which could directly 

affect an inmate’s release date.

Courts strike a balance between correctional facilities’ interest in 

disciplining inmates for rule violations and inmates’ liberty 

interests by outlining the due process requirements that must be 

guaranteed in any inmate disciplinary hearing that directly affect 

an inmate’s release date:122

• A hearing at which the inmate has a right to be present;
Rights of Inmates 253

• Advance written notice of the charge given to the inmate at least 

24 hours before the hearing that alleges the time and place of the 

alleged incident, the nature of the infraction, and facts 

supporting a belief that an infraction has occurred;

• An impartial hearing officer;

• The right to call witnesses and present evidence on the inmate’s 

own behalf, unless calling a particular witness would be unduly 

hazardous to institutional safety or correctional goals;

• A right to assistance in the hearing where the inmate is unable 

to read or write, where the issues in the case are complex, or 

where the inmate is incapable of collecting evidence and 

presenting it adequately. This may include tribal court advocates 

or other trained lay advocates, but generally does not include 

attorneys; and

• A right to a written decision that outlines any evidence relied 

upon by the hearing officer and the reasons for any decision 

made by the hearing officer.

There are some limitations to a Wolff hearing:

• A hearing is not required for minor infractions;

• A hearing is not required for disciplinary or administrative 

segregation so long as these actions do not affect the inmate’s 

release date; 

• A hearing is required only when a disciplinary hearing could 

result in a later release date;

• An inmate has no right to confront or cross-examine 

witnesses, thus a facility may deny an inmate request that a 

particular witness be called, provided there is adequate 

justification;

• An inmate has no right against self-incrimination;

• An inmate has no right to counsel (whether paid or 

appointed);

• An inmate has no right to a particular advocate; and
254 Rights of Inmates

• A facility controls who can serve as an assistant and can 

prohibit other inmates from serving in this role.

There is a practical reason that inmates have no right to crossexamination. Institutions may consider information from 

anonymous informants, as anonymous informants may be the 

only way that evidence about rule violations could be obtained in 

prison. Many inmate violations are witnessed by other inmates, 

rather than staff, and inmates who testify against other inmates 

(commonly known as “snitches”) place themselves in great 

danger if they openly testify.

Using anonymous informants has the potential for abuse, 

however, because an inmate with a grudge against another 

inmate could simply lie about a rule violation. Thus, two criteria 

must be satisfied before information from an informant can be 

considered: reliability and credibility. (The issues of reliability 

and credibility of informants are more fully addressed in the 

Legal Division Handbook.)

8.7.7 Access to Courts

In Bounds v. Smith, the Supreme Court established that 

prisoners have a constitutional right of access to the courts. 

Prison authorities must assist inmates in the preparation and 

filing of meaningful legal papers by providing “adequate law 

libraries or adequate assistance from persons trained in the 

law”123 and must provide pretrial detainees with meaningful 

access to the courts.124

Almost every class of inmate or pre-trial detainee is entitled to 

this right.125 The Supreme Court has protected the right of access 

to courts by prohibiting state prison officials from actively 

interfering with inmates' attempts to prepare or file legal 
Rights of Inmates 255

documents, or from charging filing fees or transcript fees for 

indigent inmates.126

In Lewis v. Casey,127 the Supreme Court held that the assistance 

must be sufficient to give inmates the means for challenging their 

sentence or conditions of confinement by filing non-frivolous 

lawsuits. This assistance must be in the form of adequate law 

libraries or persons trained in the law to assist inmates in filing 

suits. 

Most institutions have opted to meet this requirement of 

assistance by:

• Providing some form of law library;

• Teaching inmates how to do legal research; and

• Giving inmates tools for completely and comprehensively 

researching criminal law issues and civil rights issues.

For inmates who cannot read or write (including inmates who do 

not speak English), or who are intellectually incapable of 

preparing comprehensible legal pleadings, a library alone is not 

adequate for such inmates. In such cases, the facility should 

provide the inmate with a person who is trained in the law to 

assist the inmate in protecting his due process rights.

8.8 Barriers to Suits in Federal Court 

Following Bounds and Lewis, inmates have steadily burdened the 

courts with frivolous lawsuits and filed directly with district 

courts rather than affording corrections officials time and 

opportunity to address complaints internally before allowing the 

initiation of a federal case. 

Congress enacted the Prison Litigation Reform Act (PLRA) in 

response to a significant increase in prisoner litigation in the 
256 Rights of Inmates

federal courts; PLRA was designed to decrease the incidence of 

litigation within the court system and eliminate unwarranted 

federal-court interference with the administration of prisons. 

Under 42 U.S.C. § 1997e(a), an inmate seeking only money 

damages must complete any prison administrative process 

capable of addressing the inmate's complaint and providing some 

form of relief, even if the process does not make specific provision 

for monetary relief.128

A petition for writ of habeas corpus is not a civil action for 

purposes of PLRA; PLRA was primarily aimed at prisoners' suits 

challenging prison conditions, many of which are routinely 

dismissed as frivolous. Congress has made filing habeas corpus 

petition easier than filing typical civil actions, and Congress gave 

specific attention to perceived abuses in filing habeas petitions 

by enacting the Antiterrorism and Effective Death Penalty Act.129

PLRA has amended the in forma pauperis (or waiver of filing fee 

for indigent persons) provisions of 28 USCA § 1915 to bar 

inmates from bringing a civil action or appeal without prepayment of the court’s filing fees if the inmate had three or more 

prior actions dismissed on grounds that they were frivolous, 

malicious, or failed to state a claim upon which relief may be 

granted.130

Under the Prison Litigation Reform Act (PLRA), exhaustion of 

available administrative remedies is required for any suit 

challenging prison conditions, not just for suits under 42 U.S.C. 

§1983.131 A prison must prove that the prisoner-plaintiff failed to 

exhaust each of his claims; there is no "total exhaustion" rule 

permitting dismissal of an entire action because of one 

unexhausted claim.132
Rights of Inmates 257

Failure to exhaust is an affirmative defense under the PLRA 

unless prison officials inhibit an inmate's ability to utilize 

grievance procedures.133 Inmates are not required to specially 

plead or demonstrate exhaustion in their complaints.134

Oral complaints alone regarding conditions of confinement do not 

excuse an inmate’s failure to exhaust administrative remedies 

before bringing suit under §1983,135 but if prison officials fail to 

respond to a properly filed grievance, an inmate is considered to 

have exhausted remedies under PLRA and may file suit.136

As an example, a complaint that states officials refused medical 

assistance following an alleged beating by prison officers is 

sufficiently "exhausted" where it was clear that the state had 

considered the implied allegation when reviewing prisoner's 

grievance, despite fact that inmate's grievance did not explicitly 

discuss the misconduct by medical personnel.137 For inmates 

bringing suit against tribal correctional facilities, there are 

additional barriers of sovereign immunity that generally prohibit 

bringing suit against the tribe in district court.138

8.8.1 Writ of Habeas Corpus

In federal prisons or in tribal jails with a BIA contract, a writ of 

habeas corpus is the primary mechanism for challenging 

conditions of confinement or violations of ICRA. Federal courts, 

rather than tribal courts, hear these claims through a writ of 

habeas corpus. A writ of habeas corpus is the only means to have 

a detention-related claim under ICRA heard by federal courts 

instead of tribal courts.

The basic purpose of a writ of habeas corpus is to enable those 

unlawfully incarcerated to obtain their freedom; it is fundamental 

that access of prisoners to the courts for the purpose of 

presenting their complaints may not be denied or obstructed.139
258 Rights of Inmates

The Supreme Court has “constantly emphasized the fundamental 

importance of the writ of habeas corpus in our constitutional 

scheme.”140 It is unconstitutional for a writ to be made available 

only to prisoners who could pay a filing fee, even a nominal 

one.141 Post-conviction proceedings must be more than a 

formality for an inmate, regardless of an inmate’s financial 

resources.142

In tribal jails not operated by the BIA or under federal contract, 

most conditions of confinement have been challenged directly in 

the tribal courts. The question the tribal court will ultimately 

have to answer is whether the conditions of confinement amount 

to cruel and unusual punishment under ICRA.143
1 441 U.S. 520, 545 (1979).

2 Price v. Johnston, 334 U.S. 266, 285 (1948); See also Pell v. 

Procunier, 417 U.S. 817, 822 (1974); Wolff v. McDonnell, 418 

U.S. 539, 555 (1974).

3 Hudson v. Palmer, 468 U.S. 517, 523 (1984).

4 482 U.S. 78 (1987).

5 See Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992); see also

Abdullah v. Gunter, 949 F.2d 1032 (8th Cir.1991), cert. denied,

504 U.S. 930, (1992).

6 See Gallahan v. Hollyfield, 670 F.2d 1345, 1346 (4th 

Cir.1982), quoting Sweet v. South Carolina Dept. of Corrections,

529 F.2d 854, 863 (4th Cir.1975); Teterud v. Burns, 522 F.2d 

357 (8th Cir.1975). See also Dreibelbis v. Marks, 742 F.2d 792, 

794 (3d Cir.1984) (right to practice religion may be reasonably 

restricted in order to facilitate the maintenance of proper 

discipline in prison).

7 See 42 U.S.C. § 2000cc. 8 See Holt v. Hobbs, 135 S. Ct. 853, 867 (2015).

9 See Schlemm v. Wall, No. 14-2604, 2015 WL 1787400, at 4 

(7th Cir. Apr. 21, 2015).

10 See Cruz v. Beto, 405 U.S. 319, 322 (1972).

11 Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir.1988).

12 See Turner, supra. 13 Allen v. Toombs, 827 F.2d 563 (1987).

14 32 F.3d 1258 (8th Cir. 1994).

15 103 F.3d 700, 703 (8th Cir. 1997).

16 28 CFR 540.70(a) (1988).

17 490 U.S. 401, 413 (1989).

18 Id.

19 See 28 C.F.R. §540.70; see also 28 C.F.R. §540.71.

20 441 U.S. 520 (1979)

21 Murphy v. Missouri Dep't of Corr., 372 F.3d 979, 986 (8th 

Cir.2004); see also Dean v. Bowersox, 325 Fed.Appx. 470, 472 

(8th Cir.2009).

22 See Murchison v. Rogers, 779 F.3d 882, 887 (8th Cir. 2015).

23 See Thompson v. Patteson, 985 F.2d 202 (5th Cir. 1993); see 

also Gray v. Cannon, 2013 WL 3754191 (N.D. Ill. 2013); see also

 
 

Moses v. Dennehy, 523 F. Supp. 2d 57 (D. Mass. 2007), 

judgment aff'd, 333 Fed. Appx. 581 (1st Cir. 2009).

24 See Ramirez v. Pugh, 486 F. Supp. 2d 421 (M.D. Pa. 2007).

25 See Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999).

26 See Bahrampour v. Lampert, 356 F.3d 969 (9th Cir. 2004).

27 See Cline v. Fox, 319 F. Supp. 2d 685 (N.D. W. Va. 2004).

28 416 U.S. 396 (1974).

29 See O'Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987).

30 See Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974).

31 468 U.S. 576 (1984).

32 See Florence v. Bd. of Chosen Freeholders of Cnty. of 

Burlington, 132 S. Ct. 1510, 1511 (2012).

33 539 U.S. 126, 137 (2003).

34 See Lanza v. State of N.Y., 370 U.S. 139, 143 (1962).

35 See generally Brown v. Kearney, 355 F.2d 199 (5th Cir. 

1966); see also United States v. Hallman, 365 F.2d 289 (3d Cir. 

1966).

36 See Palmigiano v. Travisono, 317 F. Supp. 776, 790 (D.R.I. 

1970).

37 Gettleman v. Werner, 377 F.Supp. 445, 451 (W.D.Pa.1974).

38 469 F.2d 273 (9th Cir. 1972).

39 (See e.g., Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), 

cert. denied, 493 U.S. 977, (1989); Watt v. City of Richardson 

Police Dep't, 849 F.2d 195, 199 (5th Cir.1988); Walsh v. Franco,

849 F.2d 66, 68 (2d Cir.1988); Weber v. Dell, 804 F.2d 796, 801 

(2d Cir.1986), cert. denied, 483 U.S. 1020, 107 (1987); Ward v. 

County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. 

denied, 483 U.S. 1020 (1987); Jones v. Edwards, 770 F.2d 739, 

742 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 

156-57 (5th Cir.1985), cert. denied, 475 U.S. 1066, (1986); Giles 

v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), cert. denied,

471 U.S. 1053 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th 

Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 

(7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th 

Cir.1981), cert. denied, 455 U.S. 942, (1982); Chapman v. 

Nichols, 989 F.2d 393, 395 (10th Cir. 1993).)

40 See Hodges v. Klein, 412 F. Supp. 896, 902 (D.N.J. 1976), 

quoting United States v. Guadalupe-Garza, 421 F.2d 876, 879 

(9th Cir. 1970); see also United States v. Diaz, 503 F.2d 1025 

(3d Cir. 1974).
 41 See Shain v. Ellison, 273 F.3d 56, 64–65 (2d Cir.2001); 

Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir.1994); 

Walsh v. Franco, 849 F.2d 66 (2d Cir.1988); Weber v. Dell, 804 

F.2d 796, 802 (2d Cir.1986).

42 See United States v. Montoya de Hernandez, 473 U.S. 531, 

540 (1985); see also Murcia v. Cnty. of Orange, 226 F. Supp. 2d 

489, 493 (S.D.N.Y. 2002). (“[t]here must be a clear indication or 

plain suggestion that contraband may be located in a body 

cavity...”)

43 See Spence v. Farrier, 807 F.2d 753, 755 (8th Cir.1986).

44 See e.g., United States v. Edmo, 140 F.3d 1289, 1292–93 (9th 

Cir.1998); see also Lucero v. Gunter, 17 F.3d 1347, 1350 (10th 

Cir.1994).

45 Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 625, 109 

S. Ct. 1402, 1417, 103 L. Ed. 2d 639 (1989).

46 See Sparks v. Stutler, 71 F.3d 259 (7th Cir.1995); see also

Levine v. Roebuck, 550 F.3d 684, 687 (8th Cir. 2008).

47 See Terry v. Ohio, 392 U.S. 21, 27 (1968); see also United 

States v. Clay, 640 F.2d 157, 159 (8th Cir. 1981); United States 

v. Asbury, 586 F.2d 973, 976 (2d Cir. 1978); United States v. 

Himmelwright, 551 F.2d 991, 994 (5th Cir. 1977).

48 See Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982).

49 779 F.2d 491, 492 (9th Cir. 1985).

50 917 F.2d 1093, 1099 (8th Cir. 1990).

51 986 F.2d 1521, 1526 (9th Cir. 1993).

52 See Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quoting Trop 

v. Dulles, 356 U.S. 86, 100, (plurality opinion)).

53 Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting In re 

Kemmler, 136 U.S. 436, 447 (1890)).

54 Hutto v. Finney, 437 U.S. 678, 687 (1978).

55 See Johnson-El v Schoemehl, 878 F2d 1043, (CA8 Mo., 1989).

56 See United States v Salerno, 481 U.S. 739 (1987), on remand

829 F.2d. 345 (2d. Cir. 1987).

57 See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 

(1983).

58 See e.g., City of Canton v. Harris, 489 U.S. 378, 388 n.8 

(1989); City of Revere, 463 U.S. at 244.

59 See e.g., Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000) 

(“[T]here is little practical difference between the two 

standards.”; see also Cottrell v. Caldwell, 85 F.3d 1480, 1490 
 

(11th Cir. 1996) (holding that “the applicable standard is the 

same”).

60 18 U.S.C. §3142(i)(2).

61 475 U.S. 312, 319 (1986).

62 503 U.S. 1, 6–7 (1992).

63 536 U.S. 730, 737 (2002).

64 United States v. Budd, 496 F.3d 517, 531 (6th Cir.2007), 

citing Bell v. Wolfish, 441 U.S. 520, 546–47 (1979); see also

United States v. Bunke, 412 Fed.Appx. 760,765 (6th 

Cir.2011)(“In the absence of any legitimate penological 

justification, the pain inflicted upon [the inmate] was, by 

definition, cruel and unusual punishment.”)

65 Hudson, 503 U.S. at 7.

66 727 F.3d 1144 (11th Cir. 2013).

67 370 F.Supp.2d 644 (N.D. Ohio 2005).

68 405 F.3d 102 (1st Cir. 2005).

69 Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

70 Id., at 105-06.

71 See e.g. Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974).

72 Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 

1187 (11th Cir.1994).

73 Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003).

74 Gates v. Cook, 376 F.3d 323, 341 (5th Cir.2004).)

75 See Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006).

76 See White v. Farmer, 849 F.2d 322, 325 (8th Cir.1988); see 

also Merriweather v. Faulkner, 821 F.2d 408, 417 (7th 

Cir.1987), cert. denied, 484 U.S. 935 (1987).

77 Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir.1980), cert. 

denied, 450 U.S. 1041 (1981); Inmates v. Pierce, 612 F.2d 754, 

763 (3d Cir.1979); Bowring v. Godwin, 551 F.2d 44, 47 (4th 

Cir.1977); Finney v. Mabry, 534 F.Supp. 1026, 1037 

(E.D.Ark.1982); Wellman v. Faulkner, 715 F.2d 269, 272 (7th 

Cir. 1983).

78 See Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 

1987); see e.g., Partridge v. Two Unknown Police Officers of City 

of Houston, Tex., 791 F.2d 1182 (5th Cir. 1986).

79 See Farmer v. Brennan, 511 U.S. 825 (1994).

80 Id., at 826.

81 Id., at 849.

82 Id., at 843.
 83 See Alberti v. Klevenhagen, 790 F.2d 1220, 1228 (5th Cir. 

1986).

84 See Gates v. Collier, 501 F.2d 1291, 1308 (5th Cir. 1974), see 

also Pugh v. Locke, 406 F. Supp. 318, 324 (M.D. Ala. 1976).

85 See Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997).

86 See Redman v. County of San Diego, 942 F.2d 1435, 1443 

(9th Cir. 1991).

87 See Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir. 1981).

88 See Redman v. County of San Diego, supra, 1444-45; see also

Withers v. Levine, 615 F.2d 158, 160 (4th Cir. 1980); Kish v. 

County of Milwaukee, 48 F.R.D. 102, 103 (E.D. Wis. 1969).

89 See Billman v. Indiana Dep't of Corr., 56 F.3d 785, 788 (7th 

Cir. 1995); see also Glick v. Henderson, 855 F.2d 536, 541 (8th 

Cir. 1988).

90 See Young v. Quinlan, 960 F.2d 351, 362 (3d Cir. 1992); 

McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991); Roland 

v. Johnson, 856 F.2d 764, 770 (6th Cir. 1988).

91 See Richardson v. Penfold, 839 F.2d 392, 396 (7th Cir. 1988); 

Holland v. DeBruyn, No. 3:95-CV-525RM, 1997 WL 284813, at

*8 (N.D. Ind. Mar. 6, 1997).

92 See Spruce v. Sargent, 149 F.3d 783, 786 (8th Cir. 1988).

93 See LaMarca v. Turner, 995 F.2d 1526, 1532 (11th Cir. 

1993); see also McGill v. Duckworth, 944 F.2d 344, 347 (7th 

Cir. 1991).

94 See Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, 

117 Stat. 972 (2003); see also 42 U.S.C. § 15602. 95 See 42 U.S.C. § 15602(3); see also 28 C.F.R. §115.

96 See National Standards To Prevent, Detect, and Respond to 

Prison Rape, 77 Fed. Reg . 37107 (June 20, 2012).

97 Brown v. Plata, 131 S. Ct. 1910, 1933 (2011).

98 See Wilson v. Seiter, 501 U.S. 294 (1991).

99 See Dent v. West Virginia, 129 U.S. 114, 123 (1889).

100 See In Wolff v. McDonnell, 418 U.S. 539, 558 (1974); see also

Wilkinson v. Austin, 545 U.S. 209, 220-24 (2005).

101 See Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005); Ky. 

Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989), overruled 

on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see 

e.g., Skinner v. Cunningham, 430 F.3d 483, 486 (1st Cir. 2005); 

Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004); Burns v. Pa. 

Dep't of Corr., 544 F.3d 279, 285 (3d Cir. 2008); Coleman v. 
 

Dretke, 395 F.3d 216, 221 (5th Cir. 2004); Bazzetta v. McGinnis, 

430 F.3d 795, 801 (6th Cir. 2005); Scruggs v. Jordan, 485 F.3d 

934, 939 (7th Cir. 2007); Carver v. Lehman, 558 F.3d 869, 872 

(9th Cir. 2009); Estate of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 

1334, 1342-44 (10th Cir. 2007); Kirby v. Siegelman, 195 F.3d 

1285, 1292 (11th Cir. 1999).

102 See Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir. 2005).

103 See U.S. v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004).

104 See Hatch v. D.C., 184 F.3d 846, 849 (D.C. Cir. 1999).

105 See Leslie v. Doyle, 125 F.3d 1132, 1136 (7th Cir. 1997).

106 See Coffman v. Trickey, 884 F.2d 1057, 1058 (8th Cir. 1989).

107 See Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994).

108 See Chambers v. Colo. Dep't of Corr., 205 F.3d 1237, 1242 

(10th Cir. 2000).

109 See Smith v. Mensinger, 293 F.3d 641, 652-54 (3d Cir. 2002).

110 See Torres v. Fauver, 292 F.3d 141, 150 (3d Cir. 2002).

111 See Townsend v. Fuchs, 522 F.3d 765, 7711 (7th Cir. 2008).

112 See Montanye v. Haymes, 427 U.S. 236, 243 (1976).

113 See Cook v. Wiley, 208 F.3d 1314, 1322-23 (11th Cir. 2000).

114 See Barna v. Travis, 239 F.3d 169, 171-72 (2d Cir. 2001).

115 See Skinner v. Cunningham, 430 F.3d 483, 487 (1st Cir. 

2005).

116 Sandin v. Conner, 515 U.S. 472 (1995).

117 See Kitchen v. Upshaw, 286 F.3d 179, 186 (4th Cir. 2002).

118 See Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006).

119 See Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008)

120 See Hernandez v. Velasquez, 522 F.3d 556, 561 (5th Cir.

2008).

121 See Hydrick v. Hunter, 466 F.3d 676, 696 (9th Cir. 2006), 

vacated on other grounds and remanded, 129 S. Ct. 2431 

(2009).

122 See Wolff v. McDonnell, 418 U.S. 539, 564 (1974).

123 Smith v. Bounds, 538 F.2d 541 (4th Cir. 1975), aff'd Bounds 

v. Smith, 430 U.S. 817 (1977).

124 See O'Bryan v. County of Saginaw, Michigan, 437 F. Supp. 

582 (E.D. Mich. 1977).

125 See Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987) (county 

jail inmate on extradition hold entitled to access law library); 

Brown v. Manning, 630 F. Supp. 391 (E.D. Wash. 1985) (indigent 

persons imprisoned for more than three days in county jail 
 

entitled to access); Lloyd v. Corrections Corp. of America (W.D. 

Tenn. 1994) (inmates in private prisons retain right to meaningful 

access to courts); Campbell v. Miller, 787 F.2d 217 (7th Cir. 1986) 

(maximum security inmates retain right); Cornett v. Donovan, 51 

F.3d 176 (9th Cir. 1995) (Bounds applies to involuntarily 

committed inmates at state hospitals); Canell v. Bradshaw, 840 

F. Supp. 1382 (D.Or. 1993) (inmates temporarily housed at 

intake center retain right of access to courts); Berry v. 

Department of Corrections, 697 P.2d 711 (Ariz. App. 1985) 

(mandates meaningful access for short-term inmates held in 

diagnostic facility pending transfer to permanent prison); Griffin 

v. Coughlin, 743 F. Supp. 1006 (N.D. N.Y. 1990) (legal assistance 

provided to protective custody inmates); Boyd v. Wood, 52 F.3d 

820 (9th Cir. 1995) (prisoners housed in out-of-state facilities 

must have access to home-state legal assistance).

126 See e.g., Johnson v. Avery, 393 U.S. 483 (1969); Ex parte 

Hull, 312 U.S. 546, 547–549 (1941); Burns v. Ohio, 360 U.S. 

252, 258 (1959); Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 

590–591, 100 L.Ed. 891 (1956). 127 518 U.S. 343 (1996).

128 See Booth v. Churner, 532 U.S. 731 (2001).

129 See generally Reyes v Keane, 90 F3d 676 (CA2 NY, 1996).

130 See generally Orr v. Clements, 688 F.3d 463 (8th Cir. 2012); 

Hampton v Hobbs, 106 F.3d 1281 (CA6 Ohio, 1997); Roller v 

Gunn, 107 F.3d 227 (CA4 SC, 1997).

131 See Woodford v. Ngo, 126 S. Ct. 2378 (2006).

132 See Small v. Camden County, 728 F.3d 265 (3d Cir. 2013).

133 See Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004).

134 See Jones v. Bock, 549 U.S. 199, 216 (2007).

135 See Albino v. Baca, 697 F.3d 1023 (9th Cir. 2012).

136 See Ebrahime v. Dart, 899 F. Supp. 2d 777 (N.D. Ill. 2012).

137 See Espinal v. Goord, 554 F.3d 216 (2d Cir. 2009).

138 See generally C & L Enters., Inc. v. Citizen Band Potawatomi 

Indian Tribe of Okla., 532 U.S. 411 (2001); Kiowa Tribe of Okla. 

v. Mfg. Techs., Inc., 523 U.S. 751 (1998); Okla. Tax Comm'n v. 

Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505 

(1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); 

Puyallup Tribe, Inc. v. Dep't of Game of State of Wash., 433 U.S. 

165 (1977); United States v. U.S. Fidelity & Guar. Co., 309 U.S. 

506 (1940); Turner v. United States, 248 U.S. 354 (1919); 
 

Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149, 

156 (2d Cir. 2010), cert. granted, 131 S. Ct. 459, vacated and 

remanded, 131 S. Ct. 704 (2011) (per curiam).

139 See Johnson v. Avery, 393 U.S. 483, 485 (1969).

140 Bowen v. Johnston, 306 U.S. 19, 26 (1939).(“The Court has 

steadfastly insisted that ‘there is no higher duty than to 

maintain [the writ of habeus corpus] unimpaired.”)

141 See Smith v. Bennett, 365 U.S. 708 (1961).

142 See Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 

L.Ed.2d 290 (1966); Cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 

585, 100 L.Ed. 891 (1956).

143 See 25 U.S.C. §1302(a)(7)(A).

FLETC

LEGAL DIVISION WEB 

SITE

www.fletc.gov/legal-resouces

THE INFORMER 

Case Law Digests

Podcasts

Articles

Training Programs

Links

Videocasts