Homeland

Security

FEDERAL LAW ENFORCEMENT 

TRAINING CENTERS

OFFICE OF CHIEF COUNSEL

ARTESIA LEGAL DIVISION

ARTESIA, NM

INDIAN LAW

HANDBOOK

Second Edition

March 2017
For Christy and Rian - RJD
Foreword i

Foreword

March 2017

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 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 committment, our 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, civil 

liability and 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 second edition of 

this text; we hope that the Indian Law Handbook can serve all law 

enforcement students and law enforcement officers in Indian 

Country.

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

enforcement officers and agents is the LGD website:

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

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.

Robert J. Duncan

Editor

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

Current Instructors

Artesia, New Mexico

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

laude), 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 assigned to the Artesia Legal 

Division as an Attorney-Advisor (Instructor) and serves as the 

Editor of the Indian Law Handbook, which earned a DHS/OGC 

Excellence in Training Award in 2016. Mr. Duncan has also been 

a guest lecturer at the International Law Enforcement Academy—

Roswell (ILEA) and has contributed to The Informer and the Legal 

Division Workbook. Prior to joining FLETC, he was the AttorneyAdvisor and Associate Professor of Transnational Law at Bacone 

College; Mr. Duncan also served as an arbitrator for the Cherokee 

Nation and advised colleges and universities on Title IX, VAWA and 

Clery Act issues in private practice. He served as a reserve law 

enforcement officer in Oklahoma for ten years and taught state, 

local and tribal law enforcement officers in the Oklahoma Council 

on Law Enforcement Training and Education Reserve Academy. 

Mr. Duncan 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. Mr. 

Haefner 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 
iii Current Instructors

Artesia Training Facility, Mr. Haefner was promoted to Associate 

Chief Counsel and assumed the supervision and guidance of the 

instructional legal division staff. Mr. Haefner is licensed to practice 

law in Ohio. Mr. Haefner may be contacted at (575) 746-5799 or 

Joseph.Haefner@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 is assigned to the Artesia Legal 

Division as an Attorney-Advisor (Instructor) and Editor of the Legal 

Division Workbook and is a frequent guest lecturer at the 

International Law Enforcement Academy—Roswell (ILEA). She 

began her legal career as an Assistant State Attorney in 

Jacksonville, Florida, during which she was assigned to the Special 

Prosecutions Unit to conduct wiretap operations and investigate 

and prosecute large-scale 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, she 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. Ms. Heldmyer has also 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, a DHS/OGC Excellence in Training Award and three 

commendation letters from the Director of the Federal Bureau of 

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

michelle.heldmyer@fletc.dhs.gov.
Current Instructors iv

Henry W. McGowen is a graduate of the University of Texas (B.A. 

Economics); St. Mary’s University School of Law (J.D.) where he 

was inducted into the Order of Barristers; and University of Notre 

Dame (Executive Certificate in Management and Leadership). He is 

assigned to the Artesia Legal Division as an Attorney-Advisor 

(Instructor) and is a frequent guest lecturer at the International 

Law Enforcement Academy—Roswell (ILEA). Prior to joining 

FLETC, he spent a decade abroad working in international legal 

development and judicial reform programs supported by the U.S. 

State Department and was the program manager for the Kosovo 

Judicial Institute (KJI), a post-graduate magistrate school 

established to provide continuing legal education for sitting judges 

and prosecutors and initial legal magistrate training for prospective 

judges and prosecutors adapting to a post-conflict environment. 

During his tenure at KJI, he developed and delivered curriculum 

in areas of war crimes and comparative law, promoted policy 

change for the former Yugoslav judicial system, introduced new 

laws promulgated by the United Nations administration until the 

establishment of the Kosovo Assembly, and taught subsequent 

domestic law passed by the Kosovo Assembly. Mr. McGowen has 

also taught international law at Saint Mary’s School of Law, court 

procedure and capstone courses in the graduate program (M.S. 

Criminal Justice) at Saint Leo University, and comparative and 

transnational law at Law Enforcement Academy—Roswell (ILEA). 

He previously served as a judge and a prosecutor, and held a postgraduate clerkship as a briefing attorney for Hon. Lucius Bunton 

in the Western District of Texas. Mr. McGowen may be contacted 

at (575) 748-8105 or henry.mcgowen@fletc.dhs.gov.
v Past Contributors

Past Contributors

David Hall is a graduate of the University of Central Oklahoma 

(B.A.) and the University of Oklahoma (J.D.). He served in the 

Artesia Legal Division from 2012-2015 and was recognized by a 

DHS/OGC Excellence in Training Award for his contributions to 

the first edition of the Indian Law Handbook.
Table of Contents vi

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.............................................110

Chapter 5 – Indian Child Welfare Act...................................134

Chapter 6 – Juvenile Law....................................................157

Chapter 7 – Chapter 109A Felonies ....................................178

Chapter 8 – Rights of Inmates ............................................202
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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 Removal “On Reasonable Terms” ............................8

1.4 Johnson v. M’Intosh................................................9

1.5 Cherokee Nation v. Georgia ...................................12

1.6 Worcester v. Georgia .............................................15

1.7 Mexican Cession and Western Tribes .....................17

1.8 Treaty-making Gives Way to Plenary Power ...........24

1.9 Indian Reorganization Act.....................................28

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

1.1 Introduction

There are three sovereign entities in the United States1 – federal, 

state, and tribal. Tribal governments are unique among the three, 

as they possess a separate sovereignty that has never been 

formally incorporated into the American constitutional 

framework.

This means that there are laws “dealing specifically with Indian 

tribes and Indian people”2 that are outside the mainstream ideas 

of the Constitution. This body of law, Indian law, is thus 

“constitutionally, historically, and jurisprudentially 

characterized by exceptionalism.”3 To reduce the instances of 

exceptionalism, courts often revise and reimagine Indian law to 

bring Indians into the Constitutional structure of government as 

individuals in a “separate minority population.”4

It is important to note that “Indian” is a term of art in Federal 

law, and is thus a word with a specific legal meaning separate 

and distinct from its meaning in ordinary use or language.
2 Survey of Indian Law History

Generally speaking, an “Indian” is a person who has some degree 

of Indian blood and is either (1) a member of a federallyrecognized Indian tribe or (2) recognized as “eligible for the 

special programs and services provided by the United States to 

Indians because of their status as Indians.”5

An “Indian tribe” is any Indian tribe, band, nation, pueblo or 

other organized group or community recognized as such by the 

United States. Recognition may come from treaties or statutes, 

including the Alaska Native Claims Settlement Act. As such, 

Indian tribes are subject to the jurisdiction of the United States 

but still retain powers of self-government.

The United States recognized Indian tribes by treaty, thus an 

Indian was any person who was a member when the treaty was 

made. The degree of Indian blood refers to some lineal 

descendent to an enrolled member (including freedmen), not 

necessarily to a person who is racially or genetically Indian.

Thus, “Indian” and “non-Indian” concepts are matters of political 

recognition distinguishable from racial, genetic, cultural, or 

ethnic identity.

The idea of recognition through political status—especially in 

criminal jurisdiction—is unique to Indian law and exists for 

historical reasons of some complexity.

This chapter follows the history of Indian law from early 

European settlement onward; it is intended to provide context for 

the remainder of this text.

1.2 Discovery through PROCLAMATION OF 1763

American Indian law traces its history to early English 

settlement. As early as 1607, England began establishing 
Survey of Indian Law History 3

settlements in present-day Virginia. These settlements were 

formed as colonies, established through royal charters; the 

establishment of colonies also allowed England to prevent other 

European countries from making their own treaties with Indians. 

Over the next approximately 150 years, England, Spain and 

France would all claim territory throughout the North American 

continent. For the English, armed conflicts were often avoided in 

favor of treaties.

“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

This pattern of treaty-making started to decline with the loss of 

English control in the colonies. By 1760, “wars with the Dutch, 

royal indebtedness, the stirrings of revolution in Britain, [and] an 

entrenched colonial government...”7 worried the British and 

“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

Unauthorized land speculation and incursion into Indian 

country was a patent violation of treaty terms and presented a 

very real threat of war with the tribes:

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

reasons for initial hostility or neutrality among the Indian 
4 Survey of Indian Law History

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 tribes like the Six 

Nations of the Iroquois Confederacy had great resentment for the 

British. The Six Nations also realized that 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 should the continued breach of treaty terms 

lead to war. Incursions into Indian territory—belonging to 

Indians, claimed by the French, but settled by British land 

speculators—could lead to an unwinnable multi-front war.

Rather than continue to violate treaties and risk war with 

Indians, the Crown issued the PROCLAMATION OF 1763. Under this

royal decree, only the Crown could purchase land from Indian 

tribes. All other private purchases of Indian land, even those 

made from the Indians themselves, were null and void under 

English law.10

By 1774, Britain had lost its firm control over the colonies. With 

the American Revolution was close at hand, colonists had already 

elected delegates to represent their interests in a Continental 

Congress. With Indian tribes able to support Britain or choose to 

simply fight the victor without committing to any side, the 

Continental Congress pledged itself to “secure and preserve the 

friendship of the Indian nations”11 by restraining land 

speculators from encroaching on Indian countryi. The failure of

the British government—and thus King George III—to stop land 

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

States Code; in this chapter, “Indian country” means land belonging to the 

tribes prior to the establishment of “Indian Country” as defined by United 

States Code, Title 18.
Survey of Indian Law History 5

speculation and honor treaties made prior to his PROCLAMATION 

OF 1763 was so significant that it earned a mention in the 

Declaration of Independence:

“He has excited domestic insurrections amongst us, and 

has endeavoured to bring on the inhabitants of our 

frontiers, the merciless Indian Savages, whose known rule 

of warfare, is an undistinguished destruction of all ages, 

sexes and conditions.”12

To prevent a two-front war, the Continental Congress 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, Britain surrendered all land

claims in 1781 to the American colonies and “the powers of 

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

Great Britain, passed definitively to [the United States].”13

The right to government did not mean that an effective 

government had been created. The Continental Congress had few 

means to enforce its treaty obligations with Indian tribes on the 

states, because there was no central power to restrain settlers or 

land speculators from entering onto Indian lands in the United 

States.

Without such a central power, there was nothing to create a 

boundary line between the new States and existing Indian 

nations; this was worrisome to George Washington, who wrote a 

series of letters to Congress.14 His hope was to prevent war from 

breaking out, because “[i]n defiance of the proclamation of 
6 Survey of Indian Law History

Congress,” Washington 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.”15

To forestall war, President Washington made several strong 

treaties promoting friendship and commerce with Indian tribes 

and repeatedly urged Congress to pass laws restraining 

encroachment on Indian land. 

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

This grant of power—the Indian Commerce Clause—was 

intended to prohibit the acquisition of Indian land by the several 

states, which largely prevented war with Indian tribes on the 

frontier and early treaties with Indian tribes were treated by the 

Supreme Court in the same way as treaties with European 

powers17 for this reason.

In 1789, Congress also established the War Department and 

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

Secretary of War were “granting of lands to persons entitled 

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

duties “relative to Indian affairs.”18 Through an exclusive right to 

acquire property under the Indian Commerce Clause, the War 

Department attempted to manage 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, acquired Indian land by illegal purchase or 

outright fraud; this acquisition of land defeated the War 

Department’s goals of managing Indian affairs and preventing 

war. As a result, Congress passed additional acts in 1790 to 

preserve the exclusive right of the government to acquire property 

from Indian tribes.19

Undeterred by the War Department’s efforts, land speculation 

and incursions into Indian land took place with increasing 

regularity. Rising tensions led to the 1806 appointment of a

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. 

Without the knowledge of Indian agents, the British and Spanish 

covertly supplied arms to a small number of Indian tribes that 

actively fought against the United States in protest of land 

incursions by speculators. 

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

land speculators and Indian agents would overrun Indian lands 

fueled a civil war. A progressive faction of the Creek 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 majority of Muscogee 

(Creek) people did not wish to fight with the United States, but

the United States did not attempt to the legitimate tribal 

government. The traditionalist adopted the name “Red Sticks”

because of the scarlet war clubs they carried,20 and fought 

against the United States in several border raids and minor 

skirmishes.
8 Survey of Indian Law History

Shortly after the start of these skirmishes, General Andrew 

Jackson led a disproportionately large force of “3,500 militia men 

along with 1,000 Georgia volunteers”21 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 

massacre of Red Sticks in the Battle of Horseshoe Bend. 

Diplomacy or war were no longer open to the Creek: they had 

international allies to mediate disputes or negotiate peace with 

the United States and the British and French were in no position 

to intervene in a military conflict because of the Napoleonic 

Wars.22

Jackson’s campaign demonstrated that military victory over 

Indian tribes was now possible thanks to modern arms and 

tactics. Moreover, Jackson had stirred public sentiment against 

the Indians with news of his victories. Land speculators now saw 

an opportunity to push forward towards Indian Country on an

unprecedented scale.

1.3 Removal “On Reasonable Terms”

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.”23

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, 
Survey of Indian Law History 9

“[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.”24

With previous land sales and Indian agents handling Indian 

affairs, it was widely believed by the vast number of 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.25

At the time, “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.”26

1.4 Johnson v. M’Intosh

After Jackson’s punitive campaign, demand for Indian land 

greatly increased and public opinion was firmly set against the 

tribes. Eager to accelerate the process of expansion into Indian 

country, land speculators filed a filed a collusive suit in 1823. 

This suit, Johnson v. M’Intosh,27 was meant to test the legality of 

Indian land purchases. It was expected that the court would 

recognize an Indian tribes’ ability to sell land, for individuals to 

hold title, and for individuals holding title to exercise rights of 

possession. This would allow individuals to purchase land, 

instead of waiting on the United States to negotiate for land and 

offer it for sale through a land patent process.

The plaintiff in the case claimed title to Indian land by purchase 

from the Piankeshaw Indians while the defendant claimed title to 
10 Survey of Indian Law History

what was alleged to be the same land through a land patent 

issued by the United States; this simple “action of ejectment” was 

filed in the Supreme Court without the Piankeshaw tribe as party 

to the suit.

In a surprising turn, the Supreme Court held the land belonged 

to the defendant because the United States issued a land patent; 

in doing so, the Supreme Court advanced two principles of 

modern 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.

Under international law at the time of the opinion, discovering 

European powers assumed sovereignty of the lands they claimed.

Indigenous people could be defeated, assimilated, or granted a 

right of occupation; in any case, the land and the right to govern 

it flowed from discovery to European powers regardless of what 

title the Indians held.28

Since the British discovered Indian tribes but neither defeated or 

assimilated them, the Supreme Court noted that the British 

granted Indians a right of occupation only. 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. Thus, any purchaser who acquired 

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

defective chain of title, enforceable only under the domestic 

property law of the tribe and subject to the superior title of the 

Crown.29

Therefore, tribes could not enter into treaties or exchanges for 

land with anyone other than the discovering nation. States may 
Survey of Indian Law History 11

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.”30 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”31 after the Revolution 

and the language in the Commerce Clause32 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 power33 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.

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.”34 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 tribes. 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.

Marshall’s holding that tribes are a dependent domestic nation 

created an unusual relationship between tribes and the United 

States. For tribes, “[t]heir relation to the United States resembles 
12 Survey of Indian Law History

that of a ward to his guardian”35 and thus the United States was

(and still is) duty-bound to protect Indian tribes from state 

intrusion or interference. As later cases demonstrate, M’Intosh

marks the recognition of the trust responsibility that forms the 

basis for the obligation of the United States to provide healthcare, 

policing, and other self-governance functions directly or by 

funding contract.

1.5 Cherokee Nation v. Georgia

As peaceful and orderly purchases of Indian land became 

increasingly important to the Executive Branch’s plan to remove 

tribes westward, Secretary of War John C. Calhoun created the 

Bureau of Indian Affairs in 1824 and appointed Thomas 

McKenney to serve as the bureau’s first head. 

In accordance with promises made by the United States to 

remove Indian tribes, McKenney was to oversee peaceful 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. As 

tribes resisted leaving sacred homelands, states grew 

increasingly frustrated at the lack of progress in extinguishing 

Indian title by treaty alone and urged the federal government to 

take decisive action.

When Andrew Jackson campaigned for President, his reputation 

as an Indian fighter in skirmishes against the Creek, Choctaw, 

Cherokee, Chickasaw, and Seminole demonstrated a willingness 

to use the full power of the federal government to remove Indians 

occupying land in the eastern United States.36

Jackson announced support for a radical Indian removal bill, 

despite the government’s past expenditures on Indian schools 

and public works.37
Survey of Indian Law History 13

Removal was “considered a possible ‘solution’ to the Indian 

problem.”38 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.39

By this time, however, the United States had become a powerful 

force and tribes were left without European allies to supply arms. 

Jackson, however, believed that Indian tribes may once again 

find support from other nations and would soon engage in covert 

war against the United States.40 Any pretense of allowing tribes 

to stay in existing homelands was quickly dropped – regardless 

of treaty.

Facing armed conflict with state skirmishers and the 

impossibility of federal aid with Jackson as president, tribes 

accepted removal treaties as a means of self-protection. These 

treaties, however, did not protect tribes from the states. The first 

significant and organized state push for widespread Indian 

removal came 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.”41

When gold was discovered on Cherokee land, 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.”42

Shortly after the annexation of the Cherokee Nation, the 

Supreme Court decided an unrelated case involving treaties. 
14 Survey of Indian Law History

In Foster v. Neilson,43 the Supreme Court held 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.”

As the Cherokee Nation a treaty with the United States to provide 

for a homeland and as Georgia took actions in violation of that 

treaty, it stood to reason that the actions of the Georgia 

legislature were null and void as repugnant to the Constitution.

The Cherokee brought suit in 1831 and alleged that 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.”44

The Cherokee argued the Supreme Court had the power to 

restrain Georgia’s incursion into Cherokee territory, since 

President Jackson failed to restrain the state and the United 

States was a superior sovereign.

“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,”45

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.46

Marshall’s holding prevented the Supreme Court from 

intervening directly, but also required the United States to take 

action when the tribes were threatened. 
Survey of Indian Law History 15

1.6 Worcester v. Georgia

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.47 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.48

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, Christian 

missionaries and preachers sought licenses from the President 

of the United States to enter Indian Country and assist the tribes 

they encountered; Worchester had such a license.

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:49
16 Survey of Indian Law History

“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.”50

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.”51 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 

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...”52

In 1832, Congress formally mandated the Bureau of Indian 

Affairs and approved the appointment of a Commissioner of 

Indian Affairs; the Commissioner was to manage and direct all 

Indian affairs, including removal of tribes to “outside” territory. 
Survey of Indian Law History 17

The push for removal 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 1838.53 Forced 

along by soldiers, nearly 14,000 Cherokee were removed along 

the “Trail of Tears” to Indian Territory (present-day Oklahoma). 

Over 4,000 died from exhaustion and exposure to cold among the 

Cherokee alone.

Expansion eventually won out over tribal sovereignty; other 

tribes were removed in a similar fashion as the Cherokee. The 

Supreme Court later recognized that tribes removed under the 

Indian Removal Act were not afforded even a basic level of 

medical care, a requirement after M’Intosh. This omission formed 

the basis of many continued healthcare related trust 

responsibilities.54

1.7 Mexican Cession and Western Tribes

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 land title to Indian tribes 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 

with property rights were recognized by the Mexican legal system, 

title to Indian property held in fee simple was also recognized by 
18 Survey of Indian Law History

the United States under the TREATY OF GUADELOUPE HIDALGO. “[I]n 

contrast to Anglo-American law, Mexican law recognized Native 

Americans as Mexican citizens,”55 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.”56

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

a great deal of territory through several federal offices: the 

General Land Office (Treasury) and the Bureau of Indian Affairs 

(Interior).

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 

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 
Survey of Indian Law History 19

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.”57

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.

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: 58
20 Survey of Indian Law History

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

other good Navajoes [sic]; 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.”59

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 

reservation that was within—although smaller than—their 

traditional territory.”60

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. 
Survey of Indian Law History 21

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 of the Commission’s findings, 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.

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.61

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.”62 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 

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 
22 Survey of Indian Law History

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.”63

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.64

Crow Dog appealed his conviction to the Supreme Court,65 and 

argued that the laws passed by the United States were meant to 

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, 
Survey of Indian Law History 23

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.”66

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.67

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.”68 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 

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 
24 Survey of Indian Law History

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.”69

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.”70

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 

reduce the role of traditional peacemaking in serious crimes; the 

practical effect was to further control Indian tribes.

1.8 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 
Survey of Indian Law History 25

favor of direct legislation. This practice was upheld in United 

States v. Kagama71:

“[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 

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 
26 Survey of Indian Law History

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 

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

1934, Indian land holdings amounted to 52 million acres.72

Lone Wolf v. Hitchcock made clear that the plenary power of 

Congress would be exercised over an Indian tribe regardless of 

any treaty rights the tribe might assert.73
Survey of Indian Law History 27

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.”74

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.”75 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 

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.”
28 Survey of Indian Law History

1.9 Indian Reorganization Act

From 1903 to 1933, the federal government did little to improve 

the fortunes of Indian tribes. That changed in 1934, when “a new 

generation of bureaucrats who had been brought to Washington 

by Franklin D. Roosevelt”76 worked to reverse past damage by

creating new policies and programs for Indian self-sufficiency. 

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, two-thirds of the land they owned fifty 

years earlier.”77

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.

“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.”78

This so-called Indian New Deal led to 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.”79

Many Indian tribes were removed to areas with few natural 

resources or opportunity for economic growth; agriculture and 
Survey of Indian Law History 29

other industry was greatly curtailed, but the Roosevelt

administration 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.’”80

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,”81 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.”82

Tribes like the Cherokee and Navajo chose to keep their current 

form of government and engage in nation-building projects83

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”84 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.”85

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:86

“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.”87

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.

By 1975, Indian tribes enjoyed increasing support from the 

Executive Branch to be recognized as “self-governing sovereign 

political communities” which retained “elements of ‘quasisovereign’ 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 nonIndians.88
32 Survey of Indian Law History

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 

emphasized “the distinctive obligation of trust incumbent upon 

the Government.”89

1.10 Indian Self-Determination Act and Beyond

Even with increasing Executive support for self-government, the 

Department of the Interior would only provide law enforcement 

and other tribal services directly through the Bureau of Indian 

Affairs. 

In 1975, the Indian Self–Determination and Education Assistance 

Act (ISDA) required 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,90 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.”91
Survey of Indian Law History 33

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 

government to a new three-branch system.92 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.”93 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”94 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 
34 Survey of Indian Law History

person is expected to apply towards goals of reconciliation 

and hozho.”95

Many tribes have followed this example, and have renewed efforts 

to establish courts that meet the same standards as courts 

established under the Constitution, as well as tribes’ efforts to 

provide services directly to enrolled members.

Today, tribal governments play a vital role in the administration 

of services to tribal members and have been granted increasing 

authority to engage in self-governance, including increased 

criminal jurisidiction. Indian law, which has a complex history 

that reflects changing federal policy, is still relevant and 

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

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

(1996).

3 Kristen A. Carpenter & Angela R. Riley, Indigenous Peoples and 

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

173, 201-02 (2014).

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 DECLARATION OF INDEPENDENCE (U.S. 1776)

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

14 See FRANCIS PAUL PRUCHA, DOCUMENTS OF UNITED STATES INDIAN 

POLICY, 1 (2000).

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

1018 (2014).

16 U.S. CONST., ART. I, SEC. 8, CL. 3. 17 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.”)

18 Chap. VII. 1 Stat. 49, A CENTURY OF LAWMAKING FOR A NEW 

NATION: U. S. CONGRESSIONAL DOCUMENTS AND DEBATES, Law 

Library of Congress.

19 See e.g. NONINTERCOURSE ACT OF 1790; 25 U.S.C. §177. 20 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).

21 Id.

22 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.”)

23 Robertson, at 95.

24 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).

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

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

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

27 21 U.S. 543, 5 L. Ed. 681 (1823)

28 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.”)

29 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.”)

30 M’Intosh, at 580.
 31 M’Intosh, at 586.

32 See U.S. CONST. ART. I, SEC. 8, CL. 3. 33 M’Intosh, at 603.

34 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).

35 Cherokee, at 17.

36 See generally ROBERT REMINI, ANDREW JACKSON AND HIS INDIAN 

WARS (2001).

37 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.”)

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

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

39 See generally TREATY OF NEW ECHOTA. 40 Id.

41 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).)

42 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).

43 27 U.S. 253 (1829),

44 Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, 11 (1831). 45 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).

46 See Id., at 20.

47 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.”)

48 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.”)

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

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

50 Worcester, at 560.

51 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).

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

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

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

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

54 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.”)

55 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).

56 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).

57 Castillo at 36.

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

(1993).

59 Id.

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

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

61 See Matal, at 294-95.

62 Moppett, at 293.
 63 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).

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

Ethnocentrism with A Native American Cultural Defense, 35 Am. 

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

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

66 Id., at 567.

67 See Id., at 571.

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

Navajo, 76 JUDICATURE 15, 17 (1992).

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

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

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

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

71 118 U.S. 375, 382, 6 S. Ct. 1109, 1113, 30 L. Ed. 228 (1886).

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

dissent, fn. 5).

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

74 Kagama, at 384-85.

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

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

76 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).

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

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

1559, 1561 (2001).)

78 Id.

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

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

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

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

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

(1994).

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

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

83 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).

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

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

85 Tso, at 16.

86 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).

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

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

88 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).)

89 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).)

90 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).

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

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

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

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

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

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

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

1115 (2004).

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

9, 2010).
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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 ....................... 37

2.2.1 Subsection (a)....................................................... 37

2.2.2 Sentencing Enhancements Under Subsection (b)... 43

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 Enhanced Jurisdiction Under VAWA ..................... 45

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

2.1 Purpose

The Constitution does not directly apply to Indian tribes, therefore

Indian tribes do not have the same restraints as the federal 

government or state governments. As a result, individual Indians 

do not enjoy protection from civil rights violations by tribal 

governments. As prosecutions in tribal court are based on tribal 

law; there is no restraining power like the Constitution to protect 

against self-incrimination or cruel and unusual punishment.

As internal matters of tribal government are not within bounds of 

federal jurisdiction unless jurisdiction is expressly conferred by 

Congressional enactment,1 only federal law that restrains tribes 

could prevent violations of civil rights by tribal governments.

In 1968, Congress used its plenary power to enact the Indian Civil 

Rights Act (ICRA), to protect individual members of an Indian tribe

by prohibiting Indian tribal governments from exercising certain 

powers of government that violate civil rights.2

Based on the protections found in the United States Constitution, 

ICRA was meant to enhance civil liberties of individual Indians 
36 Indian Civil Rights Act

without unduly undermining Indian self-government and cultural 

autonomy.3

ICRA may act to prevent civil rights violations by aligning the rights 

afforded to defendants in tribal court with those afforded to 

defendants in state and federal court, but it does not abrogate 

tribal sovereign immunity. 

Sovereign immunity means that 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 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.” Suits against tribes for 

money damages in federal court are barred; the writ of habeas 

corpus remains the only remedy available.

Absent a treaty provision or federal law, Indian tribes are assumed 

not to have criminal jurisdiction over non-Indians.6 Limited 

criminal jurisdiction over non-Indians who commit domestic 

violence crimes was restored in 2013; general jurisdiction over nonIndians remains limited.

This grant of jurisdiction over non-Indians who commit limited 

domestic violence crimes signals that 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 selfdetermination and self-governance—and also cautiously seeks to 

align tribal judicial exercise more closely with American state and 

federal practices.”7
Indian Civil Rights Act 37

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

religious practices and social norms form the basis of tribal 

law in many tribes. Separation of religion and the operations 

of the tribal government because separating religion from 

government would have changed tribes beyond recognition; 

the omission ensures that tribal governments protect free 

exercise of religion without losing the basis of tribal law.

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. As a matter of practice, 

many tribal courts have adopted the decisions of the United 

States Supreme Court under a principle of comity. 
38 Indian Civil Rights Act

Supreme Court decisions thus inform most interpretations 

of the right to be free from unreasonable search and seizure 

under ICRA.

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 

infringed when an Indian is convicted in federal court after 

having been convicted of the same crime or a lesser-included 

offense in tribal court, because the tribal court and the 

federal court are not arms of the same sovereign.8

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;
Indian Civil Rights Act 39

These two provisions mirror the provisions of the Fifth 

Amendment to the U.S. Constitution. Note that there is no 

right to criminal prosecution by grand jury indictment.

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. Both 

the Tribal Law and Order Act of 2010 (TLOA) or Violence 

Against Women Reauthorization Act of 2013 (VAWA), allow 

tribes to “opt-in” to enhanced penalties (TLOA) and 

jurisdiction (VAWA), but tribes are first required to provide

counsel at the tribe’s expense before they may “opt-in” to 

these enhancements

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 
40 Indian Civil Rights Act

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 in 

1968 until the enactment of the TLOA in 2010, tribal courts 

were limited to sentencing a defendant to a maximum of 

“imprisonment for a term of one year and a fine of $5,000.00, 

or both” regardless of the offense. This limitation on the 

penalties or punishments that tribal courts could impose 

greatly limited the ability to tribal courts and governments to

punish tribal criminal offenses, even serious violent crimes, 

as anything other than 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;

ICRA combines “Due Process” language from the Fifth and 

Fourteenth Amendments and “Equal Protection” language 

from the Fourteenth Amendment in this section.

Tribes are required to ensure due process and 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.
Indian Civil Rights Act 41

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 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 
42 Indian Civil Rights Act

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.

A jury trial is required for any offense which could 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 

interpretation of the right to trial by jury, a defendant may 

not be entitled to a jury trial for petty offenses punishable by 

less than six months imprisonment.

In tribal court, a defendant who requests a jury trial must 

have one. Tribal courts are required to have a jury of not less 

than six jurors for any offense that may result in 

imprisonment, regardless of the potential sentence. (Only a 

six-person jury is required for a criminal trial under ICRA.)
Indian Civil Rights Act 43

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 one year and a five thousand dollar fine to three years 

and fifteen thousand dollars fines for offenses that warrant 

enhancement or for offenses that are like felonies in other 

jurisdictions. Tribal courts are also allowed to “stack” felony 

charges, up to three counts (nine years in total).

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—
44 Indian Civil Rights Act

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

(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—
Indian Civil Rights Act 45

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 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 Enhanced Jurisdiction Under 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 
46 Indian Civil Rights Act

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 victim 

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

to a spouse of the victim under the domestic- or family-violence 

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.9

Congress recognized in VAWA, found 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 in Indian 

Country.
Indian Civil Rights Act 47

Tribal jurisdiction under VAWA 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).

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 
48 Indian Civil Rights Act

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 non-Indians. 

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 the jurisdiction of the 

Indian tribe or otherwise within the authority of the Indian tribe.10

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. 
Indian Civil Rights Act 49

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 

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,11 the court found that finding that like states, Indian 

tribes are sovereign entities, albeit, “domestic dependent”

sovereign. 
50 Indian Civil Rights Act

According to the court, “[t]he same considerations of federal noninterference 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,12 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 liberty to 

qualify as a “detention” and permitted federal review by habeas 

corpus under §1303 of ICRA.

In Jeffredo v. Macarro,13 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.”14
Indian Civil Rights Act 51

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.15

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 

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 Pinnow v. Shoshone Tribal Council, 314 F. Supp. 1157 (D.C. 

Wyo.1970).

2 See Thompson v. New York, 487 F. Supp. 212 (N.D.N.Y. 1979).

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

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

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

7 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).

8 See United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. 

Ed. 2d 303 (1978).

9 See 25 U.S.C. 1304(a).

10 18 USC §2265(e).

11 573 F.3d 701 (9th Cir.2009).

12 85 F.3d 874 (2nd Cir. 1996).

13 599 F. 3d 913 (9th Cir. 2010).

14 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).

15 See Oliphant at 196.

 
Indian Country Criminal Jurisdiction 52

Chapter Three

Indian Country Criminal Jurisdiction

3.1 Introduction......................................................... 53

3.1.1 Trust Relationship and Tribal Sovereignty............ 53

3.1.2 Plenary Power of Congress .................................... 54

3.1.3 Supreme Court Decisions...................................... 56

3.2 Criminal Jurisdiction in Indian Country ............... 57

3.2.1 Statutory Definition of “Indian” ........................... 57

3.2.2 Statutory Definition of “Indian Country”.............. 59

3.2.3 Reservation Land.................................................. 60

3.2.4 Dependent Indian Communities ........................... 61

3.2.5 Indian Allotments................................................. 62

3.1.1 Disestablishment and Trust Land.......................... 63

3.1 State Jurisdiction with Federal Consent ............... 65

3.1.1 Congressional Acts Prior To 1953 ......................... 65

3.1.2 Public Law 280 In Mandatory States ..................... 66

3.2 Public Law 280 In Optional States ........................ 67

3.2 Nature of Crime and Applicable Statutes............... 71

3.2.1 Indian Country Crimes Act ................................... 72

3.2.2 Major Crimes Act.................................................. 74

3.2.3 Assimilative Crimes Act........................................ 84

3.3 Courts of Indian Offenses (C.F.R. Courts).............. 86

3.4 Concurrent Jurisdiction, Double Jeopardy............ 88

3.5 Limits on State Jurisdiction................................. 89

3.6 Limits on Tribal Jurisdiction ................................ 90

3.6.1 Optional Jurisdiction under VAWA........................ 93

3.7 Limits on Law Enforcement Officer Authority....... 94

3.8 Tribal Police Officer Authority/Limits .................. 95

3.9 BIA Officer Authority/Limits ................................ 97

3.10 State, County, Local Officer Authority/Limits ...... 97

3.11 Limits on Fresh Pursuit into Indian Country ........ 99

3.12 Limits on Extradition from Indian Country......... 102

3.13 Step-by-Step Jurisdictional Analysis................... 105
53 Indian Country Criminal Jurisdiction

3.1 Introduction

Each tribe is a unique entity, distinct from each other in many 

ways. More than five hundred Indian nations can be found in what 

is now the United States,1 with each nation possessing its own 

government, culture and language.2 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.

As the United States made treaties to gain land, Indian tribes ceded 

vast areas of traditional land holdings and reduced the tribes’ 

exercise of sovereignty in exchange for the United States’ promise 

to protect them and provide for their welfare. Over time, criminal 

jurisdiction in Indian Country developed into “a complex 

patchwork of federal, state and tribal law.”3 This complex 

patchwork is the result of federal trust responsibility, Congress’ 

exercise of plenary power, and Supreme Court decisions.

With this patchwork approach, each tribe in the United States has 

slightly different criminal jurisdiction and criminal jurisdiction 

remains divided between federal, state, and tribal authorities.

3.1.1 Trust Relationship and Tribal Sovereignty 

As discussed in Chapter One, Indian tribes are “domestic 

dependent nations” and authority to enforce criminal laws against 

non-Indians is limited.

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. 
Indian Country Criminal Jurisdiction 54

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 self-determination.

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. Today, the trust 

relationship and federal superintendence over Indian nations rests 

upon Congress’ plenary power over Indian affairs, and federal 

criminal jurisdiction in Indian Country also flows from Congress’ 

plenary power.

3.1.2 Plenary Power of Congress

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...”
55 Indian Country Criminal Jurisdiction

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 treatymaking 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 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 

apply federal criminal laws in Indian Country.
Indian Country Criminal Jurisdiction 56

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.

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
57 Indian Country Criminal Jurisdiction

• jurisdiction over non-Indian offenders who commit crimes 

against Indians within the reservation boundaries [Oliphant 

v. Suquamish Indian Tribe (1978)].

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.

3.2.1 Statutory Definition of “Indian”

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 a person is an Indian:
Indian Country Criminal Jurisdiction 58

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

It is important to note that Indian Country criminal jurisdiction is 

not based on race—“Indian” and “non-Indian” are political

classifications, not racial or genetic classifications. 

As discussed in Chapter One, a degree of Indian blood is based on 

political status. Tribes were recognized by treaty, but the United 

States often made the determination of who was Indian conditional 

on entry into a roll based on examination by an Indian agent (e.g. 

Dawes Commission). Members of the tribe (including adopted 

Europeans and freedmen) who were counted on the rolls were 

considered Indian. Lineal descendants are thus descended from a 

person recognized as Indian, and so they possess “Indian blood”

regardless of self-identified race or genetic identity. Tribal 

membership based on decadency is often established through 

Bureau of Indian Affairs or tribal census records. 

Today, 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,11

but some degree of Indian blood is always required for federal 

criminal jurisdictional purposes. A person eligible for enrollment, 

but not yet enrolled, may considered to be an Indian victim for 

purposes of federal criminal jurisdiction.12

Provided that some degree of Indian blood can be found, 

congressional acts that govern the status of individual tribes13 may 

also define the status of Indians, as can receipt of assistance 

provided only to Indians, benefits of tribal affiliation, social 
59 Indian Country Criminal Jurisdiction

recognition as an Indian through residence on the reservation, and 

participation in Indian culture or social life.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. 

For example, the Upper Mattaponi has been, and still is, recognized 

by both the 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 2017, therefore its members 

are not Indians under federal law.

If a tribe was federally-recognized 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). 

Likewise, First Nations people in Canada are not Indian because 

they are not members of a federally recognized tribe. Only tribal 

members enrolled in a tribe recognized by the United States will be

“Indians” under federal law. Thus, 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, 
Indian Country Criminal Jurisdiction 60

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. 

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 Highways, by-ways and other rights of way fall under 

the definition of Indian Country if found inside the exterior 

boundaries of a reservation.

Patented lands, defined as those lands located within the exterior 

(outer) boundaries of the reservation that have been granted by 

land patents by the United States to individual non-Indians, are 

also included.

Land patents are grants of land for exclusive use or right granted 

directly from the United States government. Some reservations 

were extended or established where patents already existed, 

leaving patented land within the new boundaries of the reservation.

Even though patented land is owned in fee simple, it falls under 

the definition of Indian Country if located within the exterior 

boundaries of a reservation.
61 Indian Country Criminal Jurisdiction

3.2.4 Dependent Indian Communities

The second category of “Indian Country” includes dependent 

Indian communities recognized by the federal government and 

dependent upon the federal government for protection. The term 

“dependent Indian community” is a term of art adopted from United 

States v. Sandoval.18 

Communal lands held by the Pueblos in fee simple, under 

conveyances from the Spanish government as land grants were

recognized under Mexican law until the Treaty of Guadalupe 

Hidalgo ceded jurisdiction to those lands to the United States. 

These lands are in “Indian Country” even though they were not 

formally designated as federal reservations.19 Pueblos are distinctly 

Indian communities, recognized by the federal government and 

dependent upon the federal government for protection. Ownership 

of lands by a federally recognized, dependent Indian tribe was 

sufficient to bring those lands within the definition of Indian 

Country in Sandoval, and this holding was later incorporated into 

the definition of “Indian Country” in 18 U.S.C. §1151(b).

The Sandoval definition was clarified in Alaska v. Native Village of 

Venetie20 and the term “dependent Indian community,” as used in 

18 U.S.C. §1151(b) refers to a limited category of 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.” 
Indian Country Criminal Jurisdiction 62

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

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.21

In 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, and then sell the land.

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,22 or reservations were opened to 

settlement by non-Indians.

Other allotment schemes opened up “surplus” lands to non-Indian 

purchasers or homesteaders after each Indian family received an 

allotment, but did not disestablish a reservation. 

As a result, there are large tracts of land settled by non-Indians—

sometimes entire towns incorporated under state law by non-
63 Indian Country Criminal Jurisdiction

Indians—within many reservations. These tracts and towns are 

still within Indian Country for jurisdictional purposes.23

For example, the city of Mission, South Dakota, lies within the 

boundaries of the Rosebud Sioux Reservation; but the reservation 

was never disestablished. Mission is thus considered Indian 

County for purposes of federal criminal jurisdiction.

3.1.1 Disestablishment and Trust Land

Some reservations were “disestablished,” meaning Indian tribes 

ceded land or the land was alienated through allotment. This 

former Indian land, which was usually opened for settlement by 

non-Indians, is no longer part of the reservation, and therefore not 

Indian Country.

Once a reservation is disestablished, the land falls outside the 

definition of Indian Country. All reservations in Oklahoma were 

disestablished; cities like Tulsa are not in Indian Country.24

This can create complex jurisdictional challenges. For example, the 

Muscogee (Creek) Nation requested a land patent for the American 

Baptist Home Mission Society to establish Indian University (now 

Bacone College) in 1885. The land patent was issued by the United 

States, with the consent of the Muscogee (Creek) Nation.

The college was in Indian Country because it was inside of a 

reservation, even though the land was owned in fee simple by a 

non-Indian corporation. When the Muscogee (Creek) Nation 

reservation was disestablished, there was no longer an exterior 

boundary of a reservation as described under §1151(a) and Indian 

University was no longer in Indian Country.

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 64

The Indian Reorganization Act allowed Indian tribes to purchase 

land and place it in trust after 1934; almost all Oklahoma tribes 

have a disestablished reservation and have purchased or otherwise 

acquired trust land held by the United States.

At least two types of tribal trust property have Indian Country 

status if used for the federal purpose of residence and support of 

Indians: lands purchased for a tribe pursuant to section 5 of the 

Indian Reorganization Act and individual allotments converted to 

tribal trust property. 

The modern test for determining whether trust land is part of 

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

Tribal trust land may qualify as Indian Country for purposes of the 

federal criminal jurisdiction statute if it meets this test. In United 

States v. Roberts,26 the following factors assist in determining 

whether tribal property is Indian Country, and thus subject to 

federal jurisdiction:

• the United States retains title to the property; 

• the state considers the property beyond its taxation 

jurisdiction; 

• the BIA Area Director approved the acquisition of the 

property; 

• both the BIA and the tribe use the property consistent 

with the use of trust property;

• the property serves a governmental function;

• the United States continues to have a supervisory role in 

the management of the property. 
65 Indian Country Criminal Jurisdiction

3.1 State Jurisdiction with Federal Consent

One complication to federal jurisdiction is that Congress removed

some areas of Indian Country from exclusive federal jurisdiction by

passing special acts of Congress and Public Law 280.

Several states were given partial criminal jurisdiction over 

reservations through special jurisdictional legislation passed by 

Congress, prior to passage of Public Law 280.27

3.1.1 Congressional Acts Prior To 1953

Prior to 1953, partial jurisdiction was granted to the following 

states:

California was given criminal and civil jurisdiction over the 

Agua Caliente Reservation in 1949.28

New York was given criminal jurisdiction over all 

reservations in 1948, however the Major Crimes Act and the 

Indian Country Crimes Act still apply29 and state does not 

have jurisdiction over hunting and fishing by Indians 

pursuant to agreement, treaty, or customs.30 

Iowa was given criminal jurisdiction over the Sac & Fox 

Reservation in 1943,31 but the Major Crimes Act and the 

Indian Country Crimes Act still apply.32 

Kansas was given partial criminal jurisdiction over all 

reservations (Iowa Reservation, Kickapoo Reservation, 

Prairie Band Potawatomi Reservation, Sac and Fox 

Reservation33) in 1940, however the Major Crimes Act and the 

Indian Country Crimes Act still apply.34

North Dakota was given partial criminal jurisdiction over 

the Devil’s Lake Reservation (now called the Spirit Lake 
Indian Country Criminal Jurisdiction 66

Reservation), but tribal, federal, and state authorities now 

regard this transfer of jurisdiction to be invalid.35

Texas was given criminal and civil jurisdiction over the 

Ysleta del Sur and the Alabama and Coushatta Tribes36 once 

Congress restored federal recognition. 

Connecticut has full criminal jurisdiction over the 

Mashantucket Tribe37 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,38 but the Mohegan Tribe has 

concurrent jurisdiction over these offenses39 and the Major 

Crimes Act still applies on the Mohegan Reservation.40

3.1.2 Public Law 280 In Mandatory States

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.

As of 2017, several Indian land areas within these mandatory 

states are exempt from state jurisdiction. The following all have 

retrocession from state jurisdiction back to federal jurisdiction:
67 Indian Country Criminal Jurisdiction

• Boise Forte Chippewa Indian Reservation (Minnesota);41

• Confederated Tribes of the Umatilla Reservation (Oregon);

• Menominee Reservation (Wisconsin); 

• Metlakatla Native Community (Alaska);42

• Omaha Reservation (Nebraska);

• Red Lake Reservation (Minnesota);

• Warm Springs Reservation (Oregon); and

• Winnebago Reservation, except for public roads and 

highways (Nebraska).

3.2 Public Law 280 In Optional States

Public Law 280 also allowed states other than the mandatory states 

to assume jurisdiction; states could elect to assume only certain 

crimes or certain reservations within the state. 

States that are not mandatory states are called “optional” states. 

Under the Indian Civil Rights Act,43 optional states are required to 

obtain consent from a tribe before the state voluntarily assumes 

jurisdiction over the affected tribe. 

At the time of publication, Arizona, Florida, Idaho, Iowa, Montana, 

Nevada, North Dakota, Utah, South Dakota, and Washington have 

all assumed some degree of jurisdiction over crimes committed by

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.
Indian Country Criminal Jurisdiction 68

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. 

Utah passed legislation which permitted it to assume civil 

and criminal jurisdiction only with tribal consent.

South Dakota passed legislation between 1957-1959 and

1960-1961 to allow partial jurisdiction. On all public 

highways and rights-of-way, even on a reservation, South 

Dakota assumes jurisdiction concurrent with the tribe and 

the United States. This jurisdiction does not include crimes 

enumerated in the Major Crimes Act unless an automobile 

accident is involved.
69 Indian Country Criminal Jurisdiction

Washington assumed an “incredibly complicated partial 

assumption of [criminal and civil] jurisdiction”44 under Public 

Law 280 without tribal consent. The areas of jurisdiction 

asserted by Washington include:45 jurisdiction over all nonIndians 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;46 all criminal jurisdiction over the 

Confederated Tribes of the Chehalis Reservation, Quileute 

Indian Reservation, Swinomish Tribal Community;47 all 

criminal jurisdiction over the Colville Reservation;48 criminal 

and civil jurisdiction over the Suquamish Port Madison 

Reservation;49 and criminal and civil jurisdiction over the 

Quinault Tribe.50

Unlike in the mandatory Public Law 280 states, the Major Crimes 

Act and the Indian Country Crimes Act still apply.51 This means that 

both the federal and state governments may punish conduct that 

violates either of these federal statutes and state law.52 In both the 

mandatory and optional Public Law 280 states, the tribes retain 

their inherent sovereign powers to enforce criminal 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.53 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.54
Indian Country Criminal Jurisdiction 70

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.

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 

(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. As 

described in Chapter Two, VAWA provides federal tools for 

prosecuting domestic violence situations involving firearms, 

interstate travel or activity.
71 Indian Country Criminal Jurisdiction

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.

3.2 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 jurisdiction. 

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 

Indians, even from different tribes, for any crimes committed in 

violation of tribal law (even if the federal government also wishes to 

prosecute).

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 72

3.2.1 Indian Country Crimes Act

In 1803, the United States purchased the territory of Louisiana

from the French. Later treaties with Indian tribes would create 

reservations inside the territory and under federal control, outside 

the reach of states.

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 such crimes, leaving the Indians without protection from 

“bad men” as often required by treaty. To prevent such an 

occurrence (which would have led to war at the time), 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 jurisdiction. 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 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 
73 Indian Country Criminal Jurisdiction

such offenses is or may be secured to the Indian tribes 

respectively.

The statute’s primary effect has been to allow federal prosecutions 

to Indian Country much the same way as federal criminal statutes 

governing other federal enclaves like military installations, postal 

offices, and national park. (In Public Law 280 states, states have 

assumed criminal jurisdiction and no jurisdictional grant is 

needed. Therefore, ICCA does not apply in Public Law 280 states.)

This statute is used 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 Indian Country Crimes Act does not create new federal offenses;

it simply creates federal jurisdiction. Crimes are either defined in 

existing federal law, or borrowed from state law under the 

Assimilative Crimes Act.

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 non-Indian, there is no federal 

jurisdiction under §1152. (The offender still may be prosecuted if 
Indian Country Criminal Jurisdiction 74

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 non-Indian. 

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 nonIndians, absent treaty provisions to the contrary. This decision 

created what is known as the McBratney-Draper rule. 

Subsequent decisions have acknowledged this rule55 and today 

states have exclusive jurisdiction to prosecute crimes in Indian 

Country when the offender and the victim are both non-Indian, or 

the crime is a victimless crime committed by a non-Indian.

3.2.2 Major Crimes Act

The Indian Country Crimes Act specifically exempts crimes 

committed by one Indian against the person or property of another 

Indian from its coverage. In 1885, Congress passed the Major 

Crimes Act to allow federal prosecution of Indians for certain 

specified “victim” crimes. 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 
75 Indian Country Criminal Jurisdiction

offenses, regardless of whether the victim is an Indian or nonIndian. (In Public Law 280 states, states have assumed criminal 

jurisdiction and no jurisdictional grant is needed. Therefore, Major 

Crimes Act does not apply in Public Law 280 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.

When an Indian commits any of the enumerated offenses in Indian 

Country, the offender may be punished in tribal court and a case 

may also be brought in federal court by the United States under 

the Major Crimes Act.

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 lesser 

crime. 

For example, a defendant charged with arson in federal court could 

receive an instruction for destruction of property. If the jury 

returns a guilty verdict for the lesser offense, the court has 
Indian Country Criminal Jurisdiction 76

jurisdiction to sentence for the lesser offense, even though

destruction of property is not a Major Crimes Act crime. 

The crimes specified in the Major Crimes Act are defined by other 

federal statutes, except for burglary, child abuse or neglect, and 

incest. These three crimes are to be defined by the Assimilative 

Crimes Act, which borrows state law elements and punishments for 

use in a federal prosecution.

Below is a chart that shows the enumerated crimes that grant 

federal jurisdiction under the Major Crimes Act, as well as the 

corresponding statute or source of authority for the elements of the 

crime.

Major Crimes

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
77 Indian Country Criminal Jurisdiction

Definitions and elements for crimes that grant federal 

jurisdiction to prosecute Indians under the Major Crimes Act

Note: Attempts or conspiracies to commit Major Crimes Act 

felonies are not included, except in cases involving attempted 

sexual abuse. Attempts for sexual abuse as a Chapter 109A felony 

are contained within the §1153 list, because Chapter 109A statutes 

explicitly include attempts.

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.

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.
Indian Country Criminal Jurisdiction 78

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 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 (never tribal code), therefore 

the elements of burglary will also be assimilated from the law of the 

state where the crime occurs. 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 
79 Indian Country Criminal Jurisdiction

would generally rely on federal law. As there is no law in the U.S. 

Code to define burglary, the federal government would assimilate 

the Arizona statute prohibiting burglary. Elements of the crime and 

the punishment would be used as if it were federal law.

Felony child abuse or neglect is assimilated from state law (never 

tribal code), therefore the elements of felony child abuse 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 

law in the U.S. Code to define burglary, the federal government 

would assimilate the Montana statute prohibiting burglary. 

Elements of the crime and the punishment would be used as if it 

were federal law.

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. 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.

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. Example: If an Indian 

steals a horse worth $2,000.00 from another Indian on a 

reservation in North Dakota, a U.S. District Court would have 

jurisdiction to hear a felony (felony theft) case under the Major 

Crimes Act.

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. Example: If a 

non-Indian steals a horse worth $900.00 from an Indian on a 
Indian Country Criminal Jurisdiction 80

reservation in North Dakota, a U.S. District Court would have 

jurisdiction to hear a misdemeanor (petty larceny) case under the 

Indian Country Crimes Act. If an Indian stole the horse under the 

same circumstances, there would be no federal jurisdiction not

under the Major Crimes Act.

Incest is assimilated from state law (never tribal code), 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 a 

pueblo in New Mexico. For the past year, he and his adult niece 

who also lives on the pueblo, 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 law in the U.S. Code to define burglary, the federal 

government would assimilate the New Mexico statute prohibiting 

burglary. Elements of the crime and the punishment would be used

as if it were federal law.

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 §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, 
81 Indian Country Criminal Jurisdiction

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 but is rarely used. The facts usually fit a felony 

assault such as assault with intent to commit 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 

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 
Indian Country Criminal Jurisdiction 82

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.56 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.57 

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.

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.
83 Indian Country Criminal Jurisdiction

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. 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.

Attempted murder is not a crime that can be prosecuted under the 

Major Crimes Act, but the attempted murder may be an assault:
Indian Country Criminal Jurisdiction 84

• assault with intent to murder;

• assault with a dangerous weapon; or

• assault resulting in serious bodily injury.

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.58

3.2.3 Assimilative Crimes Act

In areas of federal jurisdiction, including federal enclaves or Indian 

Country, there is a gap in the criminal code. “Congress has always 

assumed that the basic, comprehensive body of criminal law would 

be legislated by the states,”59 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 only 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...
85 Indian Country Criminal Jurisdiction

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).60 The requirement of “State, Territory, Possession, or 

District” limits assimilation to those codes; tribal codes are never 

assimilated into federal law.

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; the Assimilative Crimes Act is never 

used on its own because federal jurisdiction must be secured first.

Example: An Indian commits a burglary. The United States 

assumes jurisdiction through the Major Crimes Act, but the Major 

Crimes Act does not contain any definitions or elements of crimes. 

Without any federal law on point, the Assimilative Crimes Act is 

used to define the elements of burglary.

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. Otherwise, an individual who commits a crime in federal 

jurisdiction that is not covered by federal statute will be charged 

with a federal offense. The offense is defined by the Assimilative 

Crimes Act (borrowing the relevant state statute and punishment)

and prosecuted in in federal court.

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 
Indian Country Criminal Jurisdiction 86

“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:

• 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;61 

• When the offender in a victimless crime is non-Indian, 

however, the state has exclusive jurisdiction.62 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.

3.3 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 
87 Indian Country Criminal Jurisdiction

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 nontribal 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 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. 
Indian Country Criminal Jurisdiction 88

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.

3.4 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.63 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. 

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. Wheeler64

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.
89 Indian Country Criminal Jurisdiction

3.5 Limits on State Jurisdiction

Outside of Indian Country, states have general criminal 

jurisdiction over all persons whether or not they are Indian or nonIndian. 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 

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,65 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 
Indian Country Criminal Jurisdiction 90

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,66 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.

3.6 Limits on Tribal Jurisdiction

From 1978 to 1990, the Supreme Court placed increasingly severe 

limits on tribal criminal jurisdiction over non-Indian and nonmember Indian offenders. In Oliphant v. Suquamish Indian Tribe,67

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 
91 Indian Country Criminal Jurisdiction

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,68 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 nonmember 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. 

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 
Indian Country Criminal Jurisdiction 92

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.” 

Example: A member of the Oglala Sioux Tribe commits a battery 

against a member of the Omaha Nation. 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 Non-member Indians after the Duro fix.

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.

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 
93 Indian Country Criminal Jurisdiction

dependent status.”69 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.

3.6.1 Optional Jurisdiction under VAWA

After Oliphant, tribal jurisdiction was seriously limited. Consider 

the following hypothetical: A non-Indian 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, determine the offender’s status (nonIndian), 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 protections at least equal to the United States Constitution 

as required by VAWA:

• 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.

Tribes that adopt VAWA may exercise their sovereign power to 
Indian Country Criminal Jurisdiction 94

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. 

Offenses covered by VAWA are defined by tribal law:

• Domestic violence;

• Dating violence; and

• Criminal violations of protection orders.

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.

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. 

3.7 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 
95 Indian Country Criminal Jurisdiction

resulting from lower court decisions are not universal and should 

not be viewed as authoritative except where the decision was 

rendered. Normally, a sovereign’s policing and arrest powers follow 

its criminal jurisdiction.70

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 off-reservation crime. The 

courts which have considered these cross-jurisdictional issues 

primarily have considered them in the context of the reach of state 

authority onto reservations.

Tribal officers must know their agencies’ policies and practices, 

statutory authority, and case law concerning subjects like fresh 

pursuit and extradition—especially when cross-commissioned or 

when operating under the authority of a Special Law Enforcement 

Commission from the Bureau of Indian Affairs.

3.8 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 SelfDetermination 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 
Indian Country Criminal Jurisdiction 96

must receive a SLEC, as described previously, 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,71

thus tribal officers without a SLEC may detain a non-Indian 

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.72

After the Oliphant decision, tribes “likely retain the right to arrest 

non-Indians for state and federal offenses.”73 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 the arrest 

of a non-Indian by tribal law enforcement officers for the violation 

of state law was an illegal arrest,74 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 
97 Indian Country Criminal Jurisdiction

exclude—to investigate on-reservation violations of state and 

federal law.75

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 non-Indian.76

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.77

3.9 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 agreement78 before 

the BIA officers are deputized by the tribe; BIA enforcement of tribal 

law is possible only through a cross-deputation agreement with the 

tribe.

3.10 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 
Indian Country Criminal Jurisdiction 98

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, and may execute state warrants on the reservation 

as long as the crime being investigated occurred off the reservation

and in state jurisdiction. Arrests, however, are subject to tribal 

extradition laws.

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.79

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 do have 

jurisdiction to execute state search warrants in Indian Country 

concerning 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.
99 Indian Country Criminal Jurisdiction

3.11 Limits on Fresh Pursuit into 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.80

With scarce resources and a compelling need for public safety over 

vast geographical areas81, federal, tribal, and state law 

enforcement should consider agreements allowing mutual law 

enforcement authority in the face of uncertainty about fresh 

pursuit:

“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 non-Indian 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.”82

Fresh pursuit is uncertain because state law generally governs 

fresh pursuit across state lines. In Indian Country, federal 

jurisdiction is usually exclusive but there has been no definitive 

decision from the U.S. Supreme Court on fresh pursuit involving 

Indian Country. Fresh pursuit is also uncertain because of 

inconsistent application of jurisdiction under Public Law 280.

In the majority of state court decisions, neither the common law 

doctrine of fresh pursuit nor state 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 or that the arrest following fresh pursuit may have 

violated the defendant’s Fourth Amendment rights.
Indian Country Criminal Jurisdiction 100

The following cases serve as examples of how state courts have 

decided issues related to fresh pursuit:

Arizona: In State v. Lupe,83 the Arizona Court of Appeals upheld 

an on-reservation 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.”

North Dakota: In State v. Littlewind,84 the Supreme Court of North 

Dakota held that a BIA officer’s fresh pursuit that resulted in an 

off-reservation 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 
101 Indian Country Criminal Jurisdiction

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; Littlewind was charged with and 

convicted of his fifth DUI offense in state court.

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. Littlewind further argued that any

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 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.

South Dakota: In State v. Spotted Horse,85 the Supreme Court of 

South Dakota reversed a conviction for driving under the influence 

but upheld the arrest and conviction for failure to display current 

registration of a member of the Standing Rock Sioux tribe.

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 reservation and held that an arrest on the reservation 

by a state officer was unlawful.
Indian Country Criminal Jurisdiction 102

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).

The court sustained a conviction for failure to display registration 

because the violation 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.

3.12 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,86 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 
103 Indian Country Criminal Jurisdiction

view, instead holding that the state court was not deprived of 

jurisdiction by virtue of the illegal arrest.

In Merrill v. Turtle,87 a Cheyenne tribal member lived on the Navajo 

reservation with his Navajo spouse and was wanted in Oklahoma 

for second-degree forgery (a felony). 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.88 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. 
Indian Country Criminal Jurisdiction 104

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,89 regardless of whether the driver 

leads officers on a high-speed chase three miles inside the 

reservation boundaries. 

Extradition procedures cannot be ignored, even if the crime is a 

serious felony with an urgent need to preserve evidence.90 As an 

example, 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. 91 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 
105 Indian Country Criminal Jurisdiction

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 

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.92

3.13 Step-by-Step Jurisdictional Analysis

At the outset of any investigation in Indian Country, it may not be 

immediately apparent which sovereign has jurisdiction.93 Crimes 

of general applicability may be investigated by federal authorities 

without a jurisdictional statute like the Major Crimes Act or Indian 

Country Crimes Act. Otherwise, a step-by-step analysis to criminal 

jurisdiction in Indian Country is required. 

• 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:

• Does Public Law 280 or a Specific Jurisdictional Statute Apply?
Indian Country Criminal Jurisdiction 106

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. 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 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:

• 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?

If an Indian has committed one of the crimes listed under the Major 

Crimes Act, then it is a major crime that grants federal jurisdiction.
107 Indian Country Criminal Jurisdiction

If there is not a Major Crime Act crime, prosecution may be 

permissible under the Indian Country Crimes Act for non-Indians; 

if an Indian has committed an offense against a non-Indian and

has not been punished by the tribe, the ICCA also grants federal 

jurisdiction.

For example, if the facts of an 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.
Indian Country Criminal Jurisdiction 108

• If the tribe can prosecute and punish the Indian offender, have 

they done so? (ICCA only)

No

The tribe could have prosecuted (which bars ICCA prosecution), 

but did not. This allows federal prosecution.

As another example, an Indian burglarizes a non-Indian’s 

residence on the reservation. Consider this 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? (ICCA only)

No.
109 Indian Country Criminal Jurisdiction

Based on these facts, the federal court would have jurisdiction. The 

tribal court also has jurisdiction and can prosecute independently 

of the United States.

Jurisdiction in Indian Country is complex and requires a step-bystep analysis as to each offender and each offense to ensure that 

the defendant is prosecuted by the sovereign (or sovereigns) with 

jurisdiction.
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 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).

13 See, e.g., Menominee Tribe v. United States, 391 U.S. 404 (1968); 

Hackford v. Babbitt, 14 F.3d 

14 See St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988).

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). 18 231 U.S. 28 (1913).

19 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).

20 118 S.Ct. 948 (1998).

21 See United States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992), 

cert. denied, 506 U.S. 1056 (1993).

22 See FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 36 (1982).

23 See WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 

THIRD EDITION 114 (1998).

24 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 nonIndians 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.

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 Cheyenne-Arapaho 

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 25 U.S.C. § 232; see also Cohen, at 372-376.

28 See Cohen, at 176 fn. 256

29 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).

30 See Cohen, 176 fn. 256; 372.

31 See Cohen, at 374.

32 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).

33 See VERONICA E. VELARDE TILLER, ED., TILLER’S GUIDE TO INDIAN 

COUNTRY: ECONOMIC PROFILES OF AMERICAN INDIAN RESERVATIONS 343-

347 (1996).

34 See Cohen, Id.

35 See Cohen, at 373-374; fn. 229-230.

36 See Ysleta del Sur Pueblo and Alabama and Coushatta Indian 

Tribes of Texas Restoration Act, Pub. L. No. 100-89, 101 Stat. 666 

(1987).

37 See 25 U.S.C. § 1755. 38 See 25 U.S.C. §1775d (a). 39 See 25 U.S.C. §1775d(b)(1). 40 See 25 U.S.C. §1775d (b)(2). 41 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. 42 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).

43 See 25 U.S.C. §§ 1301, et seq.

44 See Canby, at 236.
 45 See RALPH W. JOHNSON AND RACHAEL PASCHAL, ED., TRIBAL COURT 

HANDBOOK FOR THE 26 FEDERALLY RECOGNIZED TRIBES IN WASHINGTON 

STATE – SECOND EDITION 10 (1992).

46 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.)

47 See 65 Fed. Reg. 75948 (2000).

48 See 54 Fed. Reg. 19959 (1989).

49 See 52 Fed. Reg. 8372 (1987).

50 See United States v. Lawrence, 595 F.2d 1149, 1151 (9th Cir. 

1979).

51 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).

52 Cf. Negonsett, 507 U.S. at 105; see also State v. Hoffman, 804 

P.2d 577, 586 (1991).

53 See Cohen, at 344-345; see also Canby, at 220-221.

54 See 18 U.S.C. § 1163 (b). 55 See Draper v. United States, 164 U.S. 240 (1896); see also New 

York ex rel. Ray v. Martin, 326 U.S. 496 (1946).

56 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).

57 See United States v. Long Elk, 805 F.2d 826 (8th Cir. 1986).

58 See United States v. Narcia, 776 F. Supp. 491 (D. Ariz. 1991).

59 See Canby, at 146.

60 See Williams v. United States, 327 U.S. 711 (1946). 

61 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).

62 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).

63 See Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995).

64 435 U.S. 313 (1978).

65 552 P.2d 1394, appeal dismissed, 492 U.S. 1030 (1976).

66 590 P.2d 913 (1979).

67 435 U.S. 191 (1978).
 68 495 U.S. 676 (1990).

69 United States v. Wheeler, 435 U.S. 313, 326 (1978).

70 See Canby, at 169.

71 Duro v. Reina, 495 U.S. 676, 697 (1990).

72 See Duro, at 695.

73 Ortiz-Barraza v.United States, 512 F.2d 1176 (9th Cir. 1975).

74 See State v. Burrola, 669 P.2d 614 (Ariz. Ct. App. 1983).

75 See Ortiz-Barraza v. United States, 512 F.2d 1176 (9th Cir. 1975). 

76 State v. Haskins, 887 P.2d 1189, 1195-1196 (1994). 

77 See State v. Schmuck, 850 P.2d 1332, cert. denied, 510 U.S. 931 

(1993).

78 See 25 U.S.C. § 2802 (c) (1).

79 See United States v. Patch, 114 F.3d 131 (9th Cir.), cert. denied, 

118 S.Ct. 445 (1997). 

80 See JOHN WESLEY HALL, JR., SEARCH AND SEIZURE §22:5 (1993). 

81 See 1 BUREAU OF INDIAN AFFAIRS, OFFICE OF LAW ENFORCEMENT 

SERVICES, LAW ENFORCEMENT HANDBOOK, Ch. 2, Sec. 4 (2000).

82 Canby, 170.

83 889 P.2d 4 (Ariz.Ct.App. 1994).

84 417 N.W.2d 361, 363 (1987).

85 462 N.W.2d 463 (1990), cert. denied, 500 U.S. 928 (1991).

86 See U.S. CONST., ART. IV, SEC. 2, CL. 2; See also 18 U.S.C. §§ 3182-

3183. 87 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003 

(1970)

88 See Benally v. Marcum, 553 P.2d 1270 (1976).

89 See City of Farmington v. Benally, 892 P.2d 629 (N.M. Ct. App. 

1995), cert. denied, 890 P.2d 1321 (1995).

90 See State v. Yazzie, 777 P.2d 916 (N.M.Ct.App. 1989), cert. 

denied, 777 P.2d 1325 (1989).

91 See Davis v. O’Keefe, 283 N.W. 2d 73 (1979).

92 See Davis v. Muellar, 643 F.2d 521 (8th Cir. 1980), cert. denied, 

454 U.S. 892 (1981).

93 See Getches, at 485-486.
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Conservation Law 110

Chapter Four

Conservation Law

4.1 Importance of Conservation Law......................... 110

4.2 Implied Rights.................................................... 111

4.3 Loss of Rights..................................................... 112

4.4 Indian Canon of Construction............................. 113

4.5 Usual and Accustomed Places ............................. 117

4.6 Disestablishment, Cession, State Regulation ...... 118

4.7 Tribal Enforcement Limitations.......................... 123

4.8 Abrogation of Rights........................................... 126

4.8.1 Eagle Protection Act........................................... 126

4.8.2 Endangered Species Act...................................... 128

4.8.3 Migratory Bird Treaty Act................................... 129

4.9 Lacey Act ........................................................... 131

4.10 Special Law Enforcement Commission (SLEC)..... 133

4.1 Importance of Conservation Law

Indian nations have developed conservation departments with the 

primary responsibility for conserving and managing wildlife 

through policies and practices that protect natural resources.

Treaty rights enable tribes to develop economic enterprises and 

generate revenue through commercial and recreational fishing and 

hunting, thus conservation policies and practices in furtherance of 

these rights are 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.
111 Conservation Law

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. 

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.

Congress has not provided for state jurisdiction in conservation or 

related offenses, as 18 U.S.C. § 1162 expressly prevents states from 

“...depriv[ing] any Indian or any Indian tribe, band, or any right, 

privilege, or immunity afforded under Federal treaty, agreement, or 

statute with respect to hunting, trapping, or fishing or the control, 

licensing, or regulation thereof.”

This statute applies to Indian Country as well as areas of land 

outside Indian Country. 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.

To further protect tribal conservation efforts, Congress enacted a 

federal trespass statute. This statute, found at 18 U.S.C. § 1165, 

makes hunting and fishing on Indian land without permission from 

the tribe a federal offense. 

Indians are thus immune from state law when exercising hunting 

or fishing rights on the reservation, even in Public Law 280 states, 
Conservation Law 112

because treaty rights are federal in nature and Congress has 

expressly prevented state interference with federal treaty rights. 

Likewise, 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.

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. 
113 Conservation Law

This loss of rights is referred to as abrogation. Unlike in a cession, 

abrogation of a 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 “governmentto-government” relationship with a tribe, hunting 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
Conservation Law 114

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

“[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 treaty-protected 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.” 
115 Conservation Law

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 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. 
Conservation Law 116

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. 

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.
117 Conservation Law

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

• 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.”
Conservation Law 118

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

A treaty right to fish also includes the ability to erect structures at 

usual and accustomed places. 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 

lands, including lands within a national forest and privately owned 

land on which the owners permitted hunting, fishing, and trapping 

to take place.
119 Conservation Law

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 nonIndians—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 Puyallup Tribe v. Department Of Game Of Washington (Puyallup 

I),25 the United States Supreme Court stated that:
Conservation Law 120

“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 2016:

“[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.”

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.
121 Conservation Law

In Puyallup Tribe v. Department Of Game Of Washington (Puyallup 

III),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. 

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 
Conservation Law 122

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

(mostly for revenue purposes). 

The Supreme Court disagreed with New Mexico’s position: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 
123 Conservation Law

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 Limitations

Generally, the federal government leaves hunting and fishing 

regulation to the tribes. Tribes have the power to exclude nonIndians from hunting or fishing on Indian lands31, the power to 

regulate hunting and fishing by Indians on non-Indian fee lands 

within the reservation32, and the power to regulate treaty hunting 

or fishing conducted off-reservation by its members.

Provided the land is not fee 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.33
Conservation Law 124

This power is subject to some limitation. Tribes cannot prosecute 

non-Indians or regulate non-Indian hunting and fishing on fee 

lands owned by non-Indians within a reservation.

In Montana v. United States34, 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 nonIndians extended only to lands belonging to the tribe or held in 

trust by the United States.

In Settler v. Lameer,35 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. 

For example, a tribe could give the highest priority to subsistence 

fishing or hunting, then ceremonial fishing or hunting, then 
125 Conservation Law

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. In Quechen Tribe v. Rowe,36 the Ninth Circuit 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. Criminal penalties are not available to tribes under 

Oliphant v. Suquamish Tribe.

Tribes can give permission to enter their lands by using a licensing 

system for non-Indians, but non-Indians might avoid seeking a 

permit or license if the tribe had no enforcement ability or remedy. 

To prosecute non-Indians, tribes often enlist the aid of federal 

authorities. Federal authorities prosecute violations of tribal game 

and fish laws by way of federal trespass statute. 37

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 nonIndians who trespass on Indian lands for the purpose of hunting, 

fishing, or trapping. As fee lands are not “Indian lands” under the 

meaning of the statute, the federal trespass statute does not apply 

to fee lands within reservations.

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 land38:

“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, 
Conservation Law 126

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.”

Congress passed 18 U.S.C. §1165 because tribes do not have 

authority to criminally prosecute non-Indians; this statute is used 

exclusively for non-Indians.39

4.8 Abrogation of Rights

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, so long as there is clear evidence that 

Congress actually considered the 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.

4.8.1 Eagle Protection Act

One example of abrogation is the Eagle Protection Act (also called 

the Bald and Golden Eagle Protection Act).

The Act 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”40 without a permit issued by 
127 Conservation Law

the Secretary of the Interior, allowing that person to take a bald or 

golden eagle. 

In United States v. Dion41, an enrolled member of the Yankton Sioux 

Tribe was convicted of shooting four bald eagles on the Yankton 

Sioux Reservation. 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 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 

treaty right.

The test used to determine abrogation requires “clear evidence that 

Congress actually considered the 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.”42

In upholding the conviction, the Supreme Court examined an 1858 

Treaty between the States and the Yankton Sioux Tribe that ceded 

land in exchange for monetary compensation, a promise of quiet 

and undisturbed possession of reserved land, and an exclusive 

right to hunt and fish. 

The Court previously held that the “broad proscriptive provisions 

of the Eagle Protection Act were consistently framed to encompass 

a full catalog of prohibited acts,”43 and found evidence in Dion that 

Congress considered Indian treaty rights by providing for a permit.

The Eagle Protection Act thus abrogates any treaty rights as to the 

hunting or taking of golden or bald eagles.
Conservation Law 128

4.8.2 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.

The ESA abrogates any treaty right to hunt endangered species

In United States v. Billie,44 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 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.” 
129 Conservation Law

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.

4.8.3 Migratory Bird Treaty Act

The Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703-712, 

provides for criminal prosecution for any person who takes, 

captures, pursues, or kills any of over 800 species of migratory 

birds listed in 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.)

The act also makes it unlawful to take or sell any feathers, eggs 

and nests; the United States subsequently entered into similar 

treaty agreements with four other nations—Canada, Mexico, Japan 

and Russia—to protect migratory birds. 

The United States, however, often entered into treaties with tribes 

that reserved their usufructuaryi rights, including the rights to

take of migratory birds and their feathers.

When the United States attempted to prosecute Indians under the

Migratory Bird Treaty Act of 1918 in United States v. Bresette,45 the 

court determined that Congress had not abrogated treaty 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-

 i Usufructuary rights [pron: yoòzə frúkchoo èrree] are the rights to make a 

modest living by “hunting and gathering off the land.”
Conservation Law 130

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.

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.
131 Conservation Law

After Bresette, Indians with reserved treaty rights cannot be 

prosecuted for violations of the Migratory Bird Treaty Act; Indians 

without treaty rights or non-Indians who purchase parts of 

migratory birds contrary to the Migratory Bird Treaty Act likely face 

prosecution.

4.9 Lacey Act

The Lacey Act, found at 16 U.S.C. § 3371 et seq., prohibits 

transporting, trafficking, selling or acquiring fish, wildlife, or plants 

taken, possessed or sold in violation of any federal, state, or tribal 

law. Possession of wildlife or fish in territory taken in violation of 

tribal law within the exclusive jurisdiction of the United States 

(which includes Indian Country) is also prohibited.

The Lacey Act applies to to Indians and non-Indians in all of Indian 

Country—even fee lands which lay outside the definition of “Indian 

lands” under 18 U.S.C. §1165.46

Takings by a tribal member in violation of the same tribe’s code 

does not violate the Lacey Act, because the Lacey Act itself does not 

abrogate rights47:

“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.”

Without a showing by the government that Congress abrogated the 

rights asserted by the tribal members, prosecution of tribal 

members from the same tribe violation of the Lacey Act is barred.

In Brown48, tribal members from the Leech Lake and White Earth 

Bands of the Minnesota Chippewa Tribe took fish by gill net for 

commercial purposes.
Conservation Law 132

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.”

The court found in Brown that “although Congress may abrogate 

Indian treaty rights, it must make its intention to do so ‘clear and 

plain.’”49 Even though the member Indians violated tribal law, they 

retain a treaty right and must be punished by their own tribe.

Courts do, however, apply the Lacey Act to takings by a tribal 

member in violation of a different tribe’s conservation code.

In Big Eagle50, a member of the Crow Creek Sioux Tribe, was 

charged and convicted in federal court with a Lacey Act violation 

for acquiring, possessing, transporting, and selling fish taken in 

violation of Lower Brulé tribal law.

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,51 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.
133 Conservation Law

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.’”

4.10 Special Law Enforcement Commission (SLEC)

To ensure that conservation officers have the ability to enforce 

wildlife protection laws and prosecute non-Indian offenders, the 

Bureau of Indian Affairs (BIA), Office of Justice Services (OJS) 

issues Special Law Enforcement Commissions (SLECs) to tribal, 

federal, state, and local full-time certified law enforcement officers. 

These commissions allow the holder to enforce federal criminal 

statutes and wildlife regulations in Indian country; an officer with 

a SLEC may thus enforce the federal trespass statute as well as 

other federal wildlife laws discussed in this chapter.
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 Washington v. Washington State Commercial Passenger 

Fishing Vessel Association 443 U.S. 658 (1979).

32 See Lower Brule Sioux Tribe v. South Dakota, 711 R.2d 809 (8th 

Cir.1983), cert. denied, 464 U.S. 1042 (1984).

33 See e.g., Montana, supra; Mescalero, supra. 34 450 U.S. 544 (1981).

35 507 F.2d 231 (9th Cir. 1974).

36 531 F.2d 408 (9th Cir. 1976).

37 See United States v. Pollmen, 364 F. Supp. 995 (D. Mont. 1973).

38 Pub.L 86-634, §2 (July 12, 1960), 74 Stat.469.

39 See United States v. Jackson, 600 F.2d 1283 (9th Cir. 1979).

40 16 U.S.C. § 668(a). 41 476 U.S. 734 (1986).

42 Id. at 740 (1986).

43 Andrus v. Allard, 444 U.S. 51, 57 (1979).

44 667 F. Supp. 1485 (S.D. Fla.1987).

45 761 F. Supp. 658 (D. Minn. 1991).

46 See 16 U.S.C. § 3372(a)(3). 47 16 U.S.C. §3378(c)(2). 48 See United States v. Brown, 777 F.3d 1025, 1034 (8th Cir. 

2015).

49 Brown at 1034, quoting Dion at 738.

50 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.)

51 770 F. 2d 816 (9th Cir. 1985), cert denied, 447 U.S. 906 (1986).
Indian Child Welfare Act 134

Chapter Five

Indian Child Welfare Act

5.1 Purpose .............................................................. 134

5.2 Text of ICWA ...................................................... 135

5.3 Exclusive Jurisdiction, Full Faith and Credit ...... 149

5.4 Leading ICWA Cases............................................ 150

5.5 Notice, Time, Invalidation (§§ 1912-1914) .......... 153

5.6 Order Of Preference (§§ 1915 -1916)................... 154

5.7 Notification At Eighteen (§§ 1917-1922)............. 155

5.8 ICWA in Public Law 280 States ........................... 156

5.1 Purpose

During the allotment and assimilation periods (1887-1943), 

Federal policy related to Indian education and youth focused on

teaching English instead of tribal languages, encouraging 

individual rather than tribal identity, and adopting mainstream 

religion.1

To further this policy, state courts, child welfare agencies, and 

private adoption agencies worked to remove Indian children from 

their families and tribes by claiming that traditional Indian childrearing practices were against the child’s best interests. The result 

was a loss of language, loss of cultural identity, loss of Indian 

family structures, and acceleration of the assimilation process.

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. 
135 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 children who are members of or are eligible for membership 

in an Indian tribe;
Indian Child Welfare Act 136

(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 non-Indian 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.

The use of the Indian Commerce Clause here demonstrates that 

the United States is acting as a superior sovereign to the several 

states, as discussed in Chapter One.

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.

This section demonstrates that there are three critical interests 

that are protected by ICWA: the interest of the child, the child’s 

parents, and the child’s tribe.

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--
137 Indian Child Welfare Act

(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 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 
Indian Child Welfare Act 138

for membership in an Indian tribe and is the biological child of a 

member of an Indian tribe;

(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;
139 Indian Child Welfare Act

(11) “Secretary” means the Secretary of the Interior; and

(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.

The Indian Child Welfare Act provides for the interests of the child 

by recognizing extended family members – there is no requirement 

that a grandparent, aunt or uncle, brother or sister, brother-in-law 

or sister-in-law, niece or nephew, first or second cousin, or 

stepparent must be Indian.

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 Welfare Act 140

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 

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.

Tribal jurisdiction is mandatory—even over the state’s objection—

except in Public Law 280 states where the state assumes the federal 

government’s interest in ICWA matters.

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 
141 Indian Child Welfare Act

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 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 
Indian Child Welfare Act 142

by the parent or Indian custodian is likely to result in serious 

emotional or physical damage to the child.

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 
143 Indian Child Welfare Act

adoption which has been effective for at least two years 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—
Indian Child Welfare Act 144

(i) a member of the Indian child’s extended family;

(ii) a foster home licensed, approved, or specified by the Indian 

child’s tribe;

(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.
145 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 146

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.

(2) In those cases where the Secretary determines that the 

jurisdictional provisions of section 101(a) of this Act [25 U.S.C.
147 Indian Child Welfare Act

§ 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 

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 
Indian Child Welfare Act 148

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 

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 
149 Indian Child Welfare Act

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

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;
Indian Child Welfare Act 150

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 2017, the only Supreme Court case involving ICWA is 

Mississippi Band of Choctaw Indians v. Holyfield.5 In Holyfield, A 

Choctaw woman, domiciled on the reservation, left the reservation 

to give birth to her twin, illegitimate children. 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. 
151 Indian Child Welfare Act

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,6 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.

In Sandman v. Dakota,7 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 
Indian Child Welfare Act 152

children in child welfare situations such as proceeding that gave 

rise to this action.

In Navajo Nation v. Norris,8 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.

In Native Village of Stevens v. Smith,9 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.
153 Indian Child Welfare Act

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.

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 
Indian Child Welfare Act 154

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.,10 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 with 

a member of his or her extended family, then other members of the 

Indian child’s tribe, and finally other Indian families. (Tribal courts 

are not required to follow an order of preference.)

Deviation from this order is only allowed upon a showing of good 

cause or 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 
155 Indian Child Welfare Act

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. 

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.
Indian Child Welfare Act 156

5.8 ICWA in Public Law 280 States

Congress did not intend for ICWA to apply to Public Law 280 states

that assert jurisdiction over child custody proceedings; Public Law 

280 was meant to provide complete state superintendence and 

included jurisdiction over child dependency proceedings until the 

tribes had the capability to reassume exclusive jurisdiction.

In Doe v. Mann,11 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.

In Public Law 280 states, tribes may submit a petition to reassume 

exclusive jurisdiction to tribal courts under §1918 and once again 

have ICWA apply to proceedings.
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).

5 490 U.S. 30 (1989).

6 570 U.S. ___ (2013).

7 816 F Supp. 448 (W.D. Mich. 1992).

8 331 F.3d. 1041 (9th Cir.2003).

9 770 F2d 1486 (9th Cir. 1986) cert. den. 106 S Ct 1640 (1986).

10 651 P.2d 1170 (Alaska 1982), cert. den. 103 S. Ct. 1983 (1983).

11 415 F.3d 1038 (9th Cir. 2005).

 
Juvenile Law 157

Chapter Six

Juvenile Law

6.1 Early Juvenile Justice Models ............................ 157

6.2 Leading Cases on Juvenile Rights ....................... 158

6.3 Passage of the JJDPA ......................................... 162

6.4 Arrest Requirements under JJDPA...................... 163

6.5 Jurisdiction in Juvenile Cases ............................ 168

6.6 Federal Jurisdiction ........................................... 170

6.7 Delinquency Proceedings.................................... 171

6.8 District Court Proceedings.................................. 172

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 
158 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 in 
Juvenile Law 159

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 was also 
160 Juvenile Law

not provided counsel or advised of his rights against selfincrimination.

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 161

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.”

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, 
162 Juvenile Law

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 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 

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 
Juvenile Law 163

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 

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, 
164 Juvenile Law

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 

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 
Juvenile Law 165

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 post-conviction 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

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.
166 Juvenile Law

• 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.

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 
Juvenile Law 167

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.

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
168 Juvenile Law

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.

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 
Juvenile Law 169

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 

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.
170 Juvenile Law

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, 

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 
Juvenile Law 171

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

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 crossexamine 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 
172 Juvenile Law

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 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 communitybased 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:
Juvenile Law 173

• 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 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 foreignflagged 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.
174 Juvenile Law

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

• 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.

Note: 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
Juvenile Law 175

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:

• 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; 
176 Juvenile Law

(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 

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 
Juvenile Law 177

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.

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 178

Chapter Seven

Chapter 109A Felonies

7.1 Acts and Contacts .............................................. 178

7.1.1 Sexual Acts......................................................... 179

7.1.2 Sexual Contact ................................................... 181

7.2 Aggravated Sexual Abuse (Act) ............................ 182

7.2.1 Circumstances Generally .................................... 184

7.2.2 By Force or by Threat of Force ........................... 184

7.2.3 Rendering the Victim Incapable of Refusing ....... 185

7.2.4 With Children Under 12 ...................................... 186

7.3 Sexual Abuse (Act) .............................................. 187

7.3.1 Degree of Fear in Sexual Abuse Cases ................. 188

7.3.2 Inability to Consent............................................ 189

7.4 Sexual Abuse of Minor or Ward ........................... 190

7.4.1 Sexual Abuse of a Minor...................................... 192

7.4.2 Sexual Abuse of a Ward....................................... 192

7.5 Abusive Sexual Contact - Generally..................... 193

7.6 Duty to Notify or Report..................................... 194

7.6.1 Reporting Definitions and Duties........................ 195

7.6.2 Confidentiality, Protection from Liability ........... 199

7.6.3 Failing to Report or Maintain Privacy ................. 200

7.7 Statute of Limitations ........................................ 201

7.1 Acts and Contacts

The “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 

crimes included in the Act are:

• Aggravated Sexual Abuse (requires act);

• Sexual Abuse (requires act);

• Sexual Abuse of a Minor or Ward (requires act);

• Abusive Sexual Contact (requires contact, not act).
179 Chapter 109A Felonies

7.1.1 Sexual Acts

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 a sexual contact.

Sexual acts are defined in 18 U.S.C. §2246(2) through four 

categories:

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 

not be present even when a defendant confesses to act involving 

penetration.
Chapter 109A Felonies 180

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 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.

Fourth, penetration through clothing is sufficient to support a 

prosecution under this statute.1
181 Chapter 109A Felonies

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.

7.1.2 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.2 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 abuse, 

humiliate, harass, degrade, or arouse or gratify the sexual desire 

of any person.”
Chapter 109A Felonies 182

7.2 Aggravated Sexual Abuse (Act)

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, or 

in any prison, institution, or facility in which persons are held in 

custody by direction of or pursuant to a contract or agreement with 

the head of any Federal department or agency, 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 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, or in any 

prison, institution, or facility in which persons are held in custody by 

direction of or pursuant to a contract or agreement with the head of 

any Federal department or agency, knowingly—

(1) renders another person unconscious and thereby engages in a 

sexual act with that other 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 
183 Chapter 109A Felonies

(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, or in any prison, institution, or facility in which 

persons are held in custody by direction of or pursuant to a contract 

or agreement with the head of any Federal department or agency, 

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 (and is at least 4 years younger than 

the person so engaging), or attempts to do so, shall be fined under 

this title and imprisoned for not less than 30 years or for life. If the 

defendant has previously been convicted of another Federal offense 

under this subsection, or of a State offense that would have 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.
Chapter 109A Felonies 184

7.2.1 Circumstances Generally

Any of the following eight circumstances is aggravated sexual 

abuse: (1) engaging in a sexual act by force; (2) engaging in a sexual 

act by threat or placing the victim in fear that any person will be 

killed, kidnapped, or subjected to serious bodily injury; (3) 

engaging in a sexual act by knowingly rendering the victim 

unconscious; (4) engaging in a sexual act by knowingly 

administering drugs or intoxicants; (5) engaging in a sexual act 

without the victim’s knowledge or permission; (6) crossing a state 

line with intent to engage in a sexual act with children under 12;

(7) engaging in a sexual act with children under 12; or (8) engaging 

in a sexual act with a child between the ages of 12 and 16 when 

more than a four year age difference exists between the defendant 

and the victim.

7.2.2 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.

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;3 use of force was appropriately found where 

the defendant slapped and choked his victim;4 evidence that 

included defendant pushing victim to the floor and victim stating 
185 Chapter 109A Felonies

that defendant was stronger and that he hurt her established the 

force element.5

In United States v. Lauck,6 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.

7.2.3 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

• 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.
Chapter 109A Felonies 186

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.

7.2.4 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 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.

Under §2241 (c), it is a separate offense to cross a state line with 

the intent to engage in a sexual act with a child under 12.

Therefore, a defendant could be charged when crossing from one 

state to another with intent to sexually abuse a child under 12, 

even if the suspect was stopped before he was able to initiate or 

complete the act.
187 Chapter 109A Felonies

The crime of committing sexual abuse “under the circumstances 

described in subsection (a) and (b)” with victims between 12 and 

16 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/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.

7.3 Sexual Abuse (Act)

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, or in any prison, institution, or 

facility in which persons are held in custody by direction of or 

pursuant to a contract or agreement with the head of any Federal 

department or agency, 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 bodily injury, or kidnapping); or 

(2) engages in a sexual act with another person if that other person 

is—
Chapter 109A Felonies 188

(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 and imprisoned 

for any term of years or for life.

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.

7.3.1 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.

Aggravated Sexual Abuse fear requires fear that someone will be 

killed, kidnapped, or subjected to serious bodily injury whereas 

Sexual Abuse fear is apprehension or fear of harm to self or others.

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. 
189 Chapter 109A Felonies

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;

• 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. Court held 

that a strong disciplinarian parent may create a general fear in the 

child sufficient to sustain a conviction under §2242(1).

7.3.2 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.
Chapter 109A Felonies 190

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.7

7.4 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:

(a) Of a Minor.—Whoever, in the special maritime and territorial 

jurisdiction of the United States or in a Federal prison, or in any 

prison, institution, or facility in which persons are held in custody by 

direction of or pursuant to a contract or agreement with the head of 

any Federal department or agency, knowingly engages in a sexual 

act with another person who—

(1) has attained the age of 12 years but has not attained the age of 

16 years; and 

(2) 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.
191 Chapter 109A Felonies

(b) Of a Ward.—Whoever, in the special maritime and territorial 

jurisdiction of the United States or in a Federal prison, or in any 

prison, institution, or facility in which persons are held in custody by 

direction of or pursuant to a contract or agreement with the head of 

any Federal department or agency, knowingly engages in a sexual 

act with another person who is—

(1) in official detention; and 

(2) under the custodial, supervisory, or disciplinary authority of the 

person so engaging; 

or attempts to do so, shall be fined under this title, imprisoned not 

more than 15 years, or both.

(c) Defenses.—

(1) 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 had attained the age of 16 years. 

(2) 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—

(1) the age of the other person engaging in the sexual act; or 

(2) that the requisite age difference existed between the persons so 

engaging.
Chapter 109A Felonies 192

7.4.1 Sexual Abuse of a Minor

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. 

If the defendant is less than four years older than the victim, there 

is no offense.

The government does not have to prove that the defendant knew 

how old the victim was or that defendant knew there was a four 

year age difference between them. 

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 

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.8 Being married to the victim at the time 

of the offense is also a valid defense.

7.4.2 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. If the parties are 

lawfully married at the time of the act, marriage serves as a 

defense.

“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, 
193 Chapter 109A Felonies

medical services, court appearances, work, and recreation. Official 

detention specifically does not include persons released on bail, 

probation, or parole.

There is no age requirement or other requirement that force or 

threats be used to constitute the crime. Sexual acts that are 

considered consensual by the ward may still fall under Sexual 

Abuse of a Ward because the ward is legally incapable of giving 

consent (unless married to the defendant).

7.5 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:

(a) 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, or 

in any prison, institution, or facility in which persons are held in 

custody by direction of or pursuant to a contract or agreement with 

the head of any Federal department or agency, knowingly engages 

in or causes sexual contact with or by another person, if so to do 

would violate—

(1) subsection (a) or (b) of 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; 

(2) 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; 
Chapter 109A Felonies 194

(3) 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; 

(4) subsection (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 two years, or both; or 

(5) subsection (c) of section 2241 of this title had the sexual contact 

been a sexual act, shall be fined under this title and imprisoned for 

any term of years or for life. 

(b) In Other Circumstances.—

Whoever, in the special maritime and territorial jurisdiction of the 

United States or in a Federal prison, or in any prison, institution, or 

facility in which persons are held in custody by direction of or 

pursuant to a contract or agreement with the head of any Federal 

department or agency, knowingly engages in sexual contact with 

another person without that other person’s permission shall be fined 

under this title, imprisoned not more than two years, or both.

(c) Offenses Involving Young Children.—

If the sexual contact that violates this section (other than subsection 

(a)(5)) is with an individual who has not attained the age of 12 years, 

the maximum term of imprisonment that may be imposed for the 

offense shall be twice that otherwise provided in this section..

7.6 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. 
195 Chapter 109A Felonies

§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 

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.

7.6.1 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;
Chapter 109A Felonies 196

• 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 

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 wellbeing 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
197 Chapter 109A Felonies

• 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.

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.

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 notify 

the 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.

Officers should also investigate and take immediate and 

appropriate steps to safeguard victims. 

To conduct this investigation, law enforcement officers are 

empowered by 25 U.S.C. §3206(a) to take any of the following 

without first obtaining parental consent:

• Photographs; 

• X-rays; 

• Medical examinations and interviews; or

• Psychological examinations and interviews.
Chapter 109A Felonies 198

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 first obtaining the 

consent of the parent, guardian, or legal custodian. If necessary, 

local law enforcement officials can obtain a court order under 25 

U.S.C. §3206(b) from a Federal Magistrate or U.S. District Court 

judge for physicians, psychologists, or local child protective 

services officials to conduct required interviews.

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 Indian 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,

contact the FBI, 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).

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 
199 Chapter 109A Felonies

judge finds that there is “reasonable suspicion” that the Indian 

child has been abused in Indian Country.

7.6.2 Confidentiality, Protection from Liability

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).

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. 

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:
Chapter 109A Felonies 200

• The doctor works for a federal agency (IHS) which treats 

incidents of child abuse;

• 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.

7.6.3 Failing to Report or Maintain Privacy

Under 18 U.S.C. §1169(a), a required reporter who fails to report 

actual or suspected child abuse, can be prosecuted and punished 

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. 
201 Chapter 109A Felonies

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.

7.7 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 15-year-old was fondled through his clothing; the 

offender intended to arouse his victim and gratify his own sexual 

desire. The abuse took place in Indian Country. The victim does 

not reveal the abuse until his 21st birthday; he tells a law 

enforcement officer. Based on these facts, the offender could be 

prosecuted for Sexual Contact of a Minor because the crime will 

fall within the statute of limitations until the victim reaches his 

25th birthday.
1 See United States v. Norman T (A Juvenile), 129 F.3d 1099 

(10th Cir. 1997).

2 See United States v. Sanders, 30 F. 3d 140, 1994 WL 395877 (9th 

Cir. 1994), cert. denied, 514 Y,S, 1007 (1995) (unpublished).

3 See United States v. Jones, 104 F.3d 193, 197 (8th Cir. 1996), 

cert. denied, 520 U.S. 1282 (1997).

4 See United States v Graves, 4 F.3d 450 (6th Cir. 1993). 

5 See United States v. Fulton, 987 F.2d 631 (9th Cir. 1992). 

6 905 F.2d 15 (2d Cir. 1990).

7 See United States v. Barrett, 937 F.2d 1346 (8th Cir.), cert 

denied, 502 U.S. 916 (1991).

8 See United States v. Yazzie, 976 F.2d 1252 (9th Cir. 1992).

 
(Page intentionally left blank.)
Rights of Inmates 202

Chapter Eight

Rights of Inmates

8.1 Balancing Rights and Interests ........................... 202

8.1.1 Religious Expression .......................................... 204

8.1.2 Censoring/Rejecting Incoming Mail.................... 207

8.1.3 Censoring/Rejecting Outgoing Mail .................... 209

8.1.4 Censorship and Due Process ............................... 210

8.1.5 Inmate Communication with the Media .............. 211

8.1.6 Visiting .............................................................. 211

8.2 Unreasonable Searches and Seizures................... 211

8.3 Visitor Searches ................................................. 215

8.4 Cross-Gender Searches ....................................... 215

8.5 Officer/Inmate Sexual Acts or Contact ............... 216

8.6 Cruel and Unusual Punishment........................... 217

8.6.1 Use of Force Under Eighth Amendment .............. 218

8.6.2 Inadequate Medical Care..................................... 221

8.6.3 Mental Health and Suicide.................................. 223

8.6.4 Sexual Assault and Rape ..................................... 224

8.6.5 Overcrowding and Facilities................................ 226

8.6.6 Due Process........................................................ 228

8.6.7 Access to Courts................................................. 233

8.7 Barriers to Suits in Federal Court ....................... 234

8.7.1 Writ of Habeas Corpus........................................ 236

8.1 Balancing Rights and Interests

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 Inmates may 

lose many of their freedoms at the prison gate, but retain “those 

rights [that are] not fundamentally inconsistent with imprisonment 

itself or incompatible with the objectives of incarceration.”3
203 Rights of Inmates

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 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:
Rights of Inmates 204

(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. 

8.1.1 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
205 Rights of Inmates

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 Exercise 

Clause does not require that inmates “have the particular 

clergyman of his choice provided to him.”11
Rights of Inmates 206

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. 

Examples of other types of restrictions that have been 

unsuccessfully challenged include:
207 Rights of Inmates

• 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.

8.1.2 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 “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. 
Rights of Inmates 208

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

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
209 Rights of Inmates

Regulations must not be under inclusive, 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

8.1.3 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 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 
Rights of Inmates 210

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. 

8.1.4 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. 

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.
211 Rights of Inmates

8.1.5 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 faceto-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. 

8.1.6 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

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.

8.2 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 
Rights of Inmates 212

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 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 
213 Rights of Inmates

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. 

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. 
Rights of Inmates 214

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.

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 self-incrimination.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
215 Rights of Inmates

8.3 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 

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. 

8.4 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.
Rights of Inmates 216

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 patdown 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 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.

8.5 Officer/Inmate Sexual Acts or Contact 

Sexual acts or sexual contacts between an officer and inmate are 

federal felonies which can result in fine, imprisonment, or both.

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). 

An officer who knowingly attempts to engage or actually engages in 

a sexual contact with an inmate (a ward) has committed sexual 

abuse of a ward under 18 U.S.C. § 2244(a)(4).
217 Rights of Inmates

8.6 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 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 
Rights of Inmates 218

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 facility 

separate, to the extent practicable, from persons awaiting or 

serving sentences or being held in custody pending appeal.”60

8.6.1 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 
219 Rights of Inmates

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?

• 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
Rights of Inmates 220

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.

• 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.
221 Rights of Inmates

8.6.2 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 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 life-threatening 

or cause excruciating pain, others have noted that factors might 
Rights of Inmates 222

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

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
223 Rights of Inmates

8.6.3 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 224

• 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.

8.6.4 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.
225 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 highsecurity 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 226

• 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

8.6.5 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 

on overcrowding have become increasingly common in Indian 
227 Rights of Inmates

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 

sometimes sparked, and the circuits were overloaded when 

appliances were used.
Rights of Inmates 228

• 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.

8.6.6 Due Process

The Due Process Clause prohibits infringement 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

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
229 Rights of Inmates

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:

• 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
Rights of Inmates 230

• 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 significant 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

• 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
231 Rights of Inmates

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;

• 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 
Rights of Inmates 232

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

• 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: 
233 Rights of Inmates

reliability and credibility. (The issues of reliability and credibility of 

informants are more fully addressed in the Legal Division 

Handbook.)

8.6.7 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 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 
Rights of Inmates 234

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.

8.7 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 

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 pre-payment of the 
235 Rights of Inmates

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

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
Rights of Inmates 236

8.7.1 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

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).
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