Tribal Court Jurisdiction
As an incident of sovereignty, Indian tribes are empowered to
tribal courts. For many years their sentencing powers were limited to a
of imprisonment for a term of six months, fines of up to $500 or both.
limits were increased in 1986 by Pub.L. 99-570 to imprisonment for a term of
year, a fine of $5,000, or both. 25 U.S.C. § 1302(7).|
The Supreme Court held in Oliphant v. Suquamish Indian
435 U.S 191 (1978), that the tribes lost authority to try non-Indians when
became dependents of the United States. The Court extended this disability
prosecution of Indians who were non-members of the tribe in Duro v.
495 U.S. 676 (1990). Congress promptly overruled Duro by temporary
legislation which was subsequently replaced by permanent legislation.
25 U.S.C. § 1301(2) and (4). It has been held that tribal court
is not preempted by 18 U.S.C. § 1153. See Wetsit v.
44 F.3d 823 (9th Cir. 1995). It has also been held that 18 U.S.C. §
does not deprive tribal courts of jurisdiction. Walker v. Rushing,
F.2d 672 (8th Cir. 1990).
The Secretary of the Interior is authorized to promulgate a law and
order code and to establish Courts of Indian Offenses, "CFR Courts," with
and limitations similar to those of a tribal court, where necessary.
25 U.S.C. §§ 1301(3), 1311; 25 C.F.R. 11. Whether the Double
Clause precludes federal prosecution after prosecution in a CFR Court
open question. See United States v. Wheeler, 435 U.S. 313,
[cited in Criminal Resource Manual 682; USAM 9-20.100]