With apologies to one of my favorite hip-hop groups of all time, Eric B. & Rakim, specifically, a line from “I Know You Got Soul,” a hit off of their seminal, 1987 album, Paid In Full, it pretty much DOES depend on both where you are from, and where you’re “at” when it comes to alleged crimes that occur on tribal land in the United States.
I thought about this issue while attending an Indian Law Continuing Legal Education (“CLE”) program a few months back, held at the Talking Stick Resort & Casino near Scottsdale, Arizona. Attorneys have to have a certain amount of CLE hours every year to keep practicing law. This year, I completed quite a bit of my mandatory CLE obligation at this particular program put on by the Federal Bar Association (of which I am a member). The FBA puts on an Indian Law Conference every year, and if you are an attorney interested in Indian law, I highly recommend it.
Indian law was one of my favorite subjects in law school back at the old alma mater, Arizona State University College of Law, and it was great seeing my old classmates, as well as my ageless professor who taught the class, Professor Rebecca Tsosie, at the Conference. One of the things that I liked about the class was learning that Indian law, far from being isolated from other legal fields, intersects so many, including but not limited to, environmental, family, water, constitutional (obviously), intellectual property, gaming, etc.
Indian law also intersects greatly with the legal field of Criminal law, and I have had to deal with that intersection often in my practice. I very often represent Non-Native Americans who have been accused of crimes on tribal land, most specifically, in and around the Native American gaming casinos and resorts in the metropolitan Phoenix area. I have also represented Native American clients primarily in state court (where the alleged offenses did NOT occur on tribal land – we’ll get into that momentarily).
The first step in figuring out “where you’re at” is to establish whether you are on tribal land, or “Indian Country,” as defined in the United States Code at 18 U.S.C. § 1151. Generally, Indian Country is “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments [ ].” 18 U.S.C. § 1151. Accordingly, this would include gaming casinos, which are located on Indian reservations, dependent Indian communities, or allotments.
Next, the “where you’re from” part (which can be a little tricky) needs to be determined. If you are NON-Native American, on tribal land, and are accused of committing a misdemeanor offense (like, say, a DUI under Arizona law), which has no victim (Native American or otherwise), you will be under Arizona’s jurisdiction, and will most likely be summoned or cited to appear in Justice Court (generally, the West Mesa Justice Court for offenses allegedly committed at Talking Stick casino/resort, and the San Marcos Justice Court in Chandler for offenses allegedly committed at Wild Horse Pass casino/resort). State jurisdiction would also extend to Non-Native Americans alleged to have committed certain felony offenses on tribal land, provided that they are not “Major Crimes” (which we will talk about shortly) OR involved a Native American victim (we’ll discuss that too).
If you are a NON-Native American facing a criminal allegation on tribal land where the victim is Native American, the matter will be heard in federal court (the U.S. District Court). However, the 1994 Violence Against Women Act (reauthorized by Congress and signed into law by President Obama in 2013) now grants the Tribes jurisdiction over Non-Native Americans who commit domestic violence crimes against Native Americans on tribal land.
If you are a Native American accused of committing a misdemeanor offense on tribal land in a “victimless” crime (for example, a misdemeanor DUI) or where the victim is also Native American, tribal jurisdiction would apply.
However, if you are Native American on tribal land, and are accused of committing a “Major Crime,” pursuant to 18 U.S.C. § 1153 (generally, murder, manslaughter, kidnapping, maiming, incest, felony assault, assault against a minor younger than 16 years old, felony child abuse or neglect, arson, burglary, or robbery), regardless of WHO the victim is (Native American or Non-Native American), you will be in federal court. However, if the victim also happens to be Native American, the tribe may have concurrent jurisdiction – meaning you could be prosecuted in both federal AND tribal courts.
If the accused is Native American, the alleged victim is also Native American, both are on tribal land, and the crime is NOT a “Major Crime,” the tribe will have exclusive jurisdiction.
So, as you can see, a lot depends on where you are, and who you are, when it comes to crimes allegedly committed on tribal lands. If you are accused of committing a crime on tribal land, you need an attorney who understands these basic concepts of Indian Law and how they intersect with criminal law – federal, tribal, and state. Please contact me if I can be of any help!