Faculty Enrichment – Addie Rolnick
"Nonmember Indians" and "Ties to the Tribe": Toward an Obligation-Based Theory of Tribal Criminal Jurisdiction
In an era of increasing skepticism over laws that seem to categorize Indians on the basis of race instead of political status, tribal criminal jurisdiction rules stand out as something of an anomaly. While the Supreme Court has held that tribes lack jurisdiction over non-Indians, Congress has confirmed that tribes retain jurisdiction over all Indians, including nonmember Indians. In so doing, Congress specifically rejected an earlier holding by the Court that tribal jurisdiction should be limited to Indians who are enrolled members of the tribe, leaving questions about what makes a person a legal Indian if it is not enrollment in a federally recognized tribe. While the Court upheld the law against other challenges, it specifically left open the question of whether the extension of tribal jurisdiction to nonmembers Indians, but non non-Indians, amounts to an illegal racial classification in violation of the equal protection clause. More recently, Congress has again pushed back against the Court’s limits, confirming tribal jurisdiction to prosecute certain non-Indians who commit domestic violence or sexual offenses as long as they have a sufficient connection to the tribal community. How, then, should the scope of tribal criminal jurisdiction be understood today? Is it just a series of accidents and compromises? Is it the result of a power struggle between Congress and the Court over Indian affairs? Is it an anachronism, a throwback to an era when Indians were defined by race alone and inappropriate in an era where Indian is recognized as a political status?
This article argues argues that - short of a pure territorial jurisdiction model, which the Court has foreclosed - the basis for tribal jurisdiction should be one of community obligation, as defined by the tribe exercising jurisdiction. Considering the purposes of criminal jurisdiction, tribal definitions of its scope, and the reasons for the limits imposed by federal law, the article argues that a community obligation model is best. The article responds to skepticism about the legality of tribal jurisdiction over nonmembers by explaining why it would be inappropriate to limit jurisdiction to enrolled members in this context, and explains why this does not amount to an apolitical (and thus illegal) racial line. Compared to enrollment, community obligation is a flexible standard that can accommodate the many different ways, including but not limited to formal enrollment, that an individual may be connected to a community. Instead of focusing narrowly on consent and political participation, this standard considers an individual’s responsibility to the community and is this more in keeping with the functions of criminal law. While many tribes limit this category to people of Indian descent, especially in light of federal law prohibiting tribes from enforcing criminal laws against non-Indians, it is a standard that would permit jurisdiction over people not of Indian descent as long as they are members of the community. In this way, the standard harmonizes tribes’ historical practices with the concerns expressed by the Court in Oliphant, Congress’ confirmation of jurisdiction over nonmember Indians, and the most recent reinstatement of tribal jurisdiction over non-Indian DV offenders in VAWA.