687. Tribal Court Jurisdiction

As an incident of sovereignty, Indian tribes are empowered to create tribal courts. For many years their sentencing powers were limited to a maximum of imprisonment for a term of six months, fines of up to $500 or both. These limits were increased in 1986 by Pub.L. 99-570 to imprisonment for a term of one year, a fine of $5,000, or both. 25 U.S.C. § 1302(7).

The Supreme Court held in Oliphant v. Suquamish Indian Tribe, 435 U.S 191 (1978), that the tribes lost authority to try non-Indians when they became dependents of the United States. The Court extended this disability to prosecution of Indians who were non-members of the tribe in Duro v. Reina, 495 U.S. 676 (1990). Congress promptly overruled Duro by temporary legislation which was subsequently replaced by permanent legislation. See 25 U.S.C. § 1301(2) and (4). It has been held that tribal court jurisdiction is not preempted by 18 U.S.C. § 1153. See Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995). It has also been held that 18 U.S.C. §  1162 does not deprive tribal courts of jurisdiction. Walker v. Rushing, 898 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 powers and limitations similar to those of a tribal court, where necessary. See 25 U.S.C. §§ 1301(3), 1311; 25 C.F.R. 11. Whether the Double Jeopardy Clause precludes federal prosecution after prosecution in a CFR Court remains an open question. See United States v. Wheeler, 435 U.S. 313, 327 n. 26 (1978).

[cited in Criminal Resource Manual 682; JM 9-20.100]

Updated September 19, 2018