Like so many areas of the law, the inclusion of sovereign Indian tribes into the analysis of criminal jurisdiction requires the development of new approaches and the cross-application of legal doctrine to achieve justice. This short article takes the position that non-Indians are able to consent to the criminal jurisdiction of tribal courts for violations of criminal laws established by the tribal code. Consent becomes a workaround to the limitations imposed on the inherent criminal powers of Indian tribes by the Supreme Court in 1978 but is consistent with the emerging congressional and judicial consensus of restoring inherent tribal sovereignty. While it would certainly be better for the Court or Congress to overturn Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), in the absence of action by the federal government, tribal courts should be able to criminally enforce their laws against non-Indians who have consented to tribal jurisdiction.
To support this conclusion, this article first looks at the basics of tribal court criminal jurisdiction. It then examines a decided shift in the 21st century’s recognition of inherent tribal sovereignty by the courts and by Congress. It concludes by arguing that non-Indian consent to tribal court criminal jurisdiction is consistent with the development of federal Indian law and bolstered by several new developments in the federal courts.
Terminology
A brief note about terminology is appropriate here at the beginning. This article variously uses the terms Indian, Indian tribe, and Indian country. The author recognizes the term “Indian” has different connotations to different audiences, including being overtly racist in some contexts. In the United States, being an “Indian,” being a member of a federally recognized “Indian tribe,” or being located in “Indian country” are legal terms of art. “Indian country” is codified at 18 U.S.C. § 1151 and is used to determine jurisdiction in a variety of contexts. The Federally Recognized Indian Tribes List Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791 (1994), requires an annual publication in the Federal Registrar of Indian tribes that enjoy a government-to-government relationship with the United States. Being an “Indian” is even an element of the Major Crimes Act (18 U.S.C. § 1153) that must be proved by the United States in order to secure a criminal conviction. See United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005) (articulating a two-part test to determine if a criminal defendant is an “Indian” for purposes of the Major Crimes Act). This article uses these terms as legal terms of art. For a larger discussion of the problematic use of the term “Indian,” see H.P. Glenn, Legal Traditions of the World 60 (Oxford University Press, 5th ed., 2014).
Tribal Court Criminal Jurisdiction
The criminal jurisdiction of tribal courts has long been a contentious issue for both the judicial and legislative branches. In 1978 there were approximately 127 tribal courts operating in the United States, and 33 of them exercised criminal jurisdiction over non-Indians. Oliphant, 435 U.S. at 196. That year the US Supreme Court removed the inherent authority of Indian tribes to criminally prosecute non-Indian persons.
The Suquamish Indian Tribe holds an annual celebration on its Port Madison Indian Reservation celebrating Chief Seattle. During the 1973 celebration, Mark David Oliphant was arrested by tribal law enforcement and charged with assaulting an officer and resisting arrest. Daniel Belgarde was arrested after a high-speed chase through the Reservation ended when he collided with a tribal police vehicle. He was charged with reckless endangerment and injuring tribal property. Both Oliphant and Belgarde were non-Indians, and rather than contest the criminal charges on the merits, or negotiate a plea with tribal prosecutors, both defendants applied for a writ of habeas corpus from the Western District of Washington on the basis that tribal courts lack criminal jurisdiction over non-Indian persons. The district court denied both petitions and the Ninth Circuit affirmed the denial of Oliphant’s petition. While Belgarde’s petition was still pending, the Supreme Court granted cert. to Oliphant’s appeal and ultimately reversed. Id. at 194–95.
In a 6-2 opinion authored by then Justice Rehnquist, the Court reasoned that although Congress has never explicitly suggested that it would be improper for tribal courts to criminally prosecute non-Indians, Indian tribes have implicitly lost the inherent power to criminally punish non-Indian defendants. Justice Rehnquist’s majority opinion reasoned that when Indian tribes were incorporated into the United States as “domestic dependent nations,” they lost the inherent power to criminally punish non-Indians: “By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.” Id. at 210.
Three years after the Oliphant decision, the Court was asked to extend the prohibition on tribal jurisdiction over non-Indians from the criminal to the civil context. It declined to do so. In Montana v. United States, the Court instead held that an Indian tribe’s civil regulatory powers extend absolutely over non-Indians when they are on tribal land and apply elsewhere on the reservation when necessary to “protect tribal self-government or control internal relations.” 450 U.S. 544 (1981). How will courts know whether tribal regulation of non-Indians is necessary? The Court provided further guidance by indicating that Indian tribes may enforce their inherent regulatory powers over “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” and when the nonmember’s activity threatens or has a direct effect upon the “political integrity, the economic security, or the health or welfare of the tribe.” Id. at 565–66.
In 1990 the Supreme Court was again faced with a question of the inherent criminal powers of Indian tribes. In Duro v. Reina, a member of the Torres-Martinez Desert Cahuilla Indians was charged in the tribal court of the Salt River Pima Maricopa Indian Community with illegally discharging a firearm resulting in the death of a 14-year-old boy on the Salt River Reservation. 495 U.S. 676 (1990). Duro challenged the jurisdiction of the tribal court, arguing that although he was an Indian, he was not a member of the Salt River Pima Maricopa Indian Community, could not vote in tribal elections, and therefore never consented to the criminal jurisdiction of the tribal court. Justice Kennedy, writing for a 7-2 majority, agreed with Duro and held that tribes lack criminal jurisdiction over nonmember Indians: “the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership.” Id. at 679.
Duro was truly the nadir of judicially imposed limitations on inherent tribal criminal jurisdiction. Even Congress felt that the Court had gone too far by limiting out the inherent power of tribal courts over Indians who were not tribal members. Duro was decided on May 29, 1990. On November 5, 1990, Congress statutorily overturned the Court’s decision in what has become known as the Duro-fix.
The Duro-fix added a line to the definition of “powers of self-government” in the Indian Civil Rights Act. Under the new legislation, the powers of tribal self-government include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2). The Court was careful to phrase the legislative language as the recognition and affirmation of inherent powers so as to contradistinguish them from delegated federal power. If tribes exercised a delegated power when criminally prosecuting nonmember Indians, then a second prosecution by the United States would be a violation of the defendant’s right to be free from double jeopardy. United States v. Wheeler, 435 U.S. 313 (1978). But if the tribe was exercising its own inherent criminal powers, then the dual sovereignty doctrine would permit both the federal and tribal criminal prosecutions. Id.
The legality of the Duro-fix was tested, and upheld, in United States v. Lara. 541 U.S. 193 (2004). Billy Jo Lara was a member of the Turtle Mountain Band of Chippewa Indians but was living with his wife on the Spirit Lake Indian Reservation. After several incidents of misconduct, the Spirit Lake Tribe issued an order excluding Lara from the Reservation. While executing the order, Lara struck the officer attempting to remove him. The officer worked for the Spirit Lake Tribe but was also an agent for the Bureau of Indian Affairs. The Spirit Lake Tribe brought criminal charges against Lara for violence to a policeman. He was convicted and served 90 days in tribal jail. The United States then brought criminal charges in federal court for assaulting a federal officer. Lara claimed that this second prosecution violated his right to be free from double jeopardy because when the Tribe prosecuted him it was exercising a power delegated to it by Congress under the Duro-fix. Lara argued that Duro made clear that Indian tribes lacked the inherent criminal authority to prosecute nonmember Indians, and so when the Spirit Lake Tribal Court assumed jurisdiction over him, it must have done so pursuant to a power delegated by Congress.
In an opinion written by Justice Breyer, the Supreme Court disagreed. It reasoned that Duro merely reflected the Court’s understanding of the inherent criminal powers of Indian tribes at the time it was decided, and that Congress’s subsequent action presented new information that could form the basis of a new conclusion when the Court reexamined the issue: “Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes. And that fact makes all the difference.” Id. at 207.
Lara has been the most recent opinion from the Court on the inherent criminal jurisdiction of tribal courts. After Lara, the basic jurisdictional rules have been pretty well settled. Oliphant makes clear that tribes lack criminal jurisdiction over non-Indians unless Congress has provided otherwise, while Lara replaced Duro and established that tribes have the inherent power to assert criminal jurisdiction over all Indians regardless of whether they are members of the tribe.
Recent Developments
Since 2010 there have been both legislative and judicial developments that suggest that the inherent criminal power of tribal courts is being expanded as it is reevaluated. The movement toward enhanced recognition of the inherent criminal powers of Indian tribes is important evidence to support the argument that non-Indians ought to be able to consent to tribal court criminal authority even if an Indian tribe does not otherwise have the inherent power to criminally prosecute them.
From Congress came three important new statutes that dramatically expand the inherent criminal powers of Indian tribes. In 2010 Congress enacted the Tribal Law and Order Act (TLOA). 25 U.S.C. § 1302. Before TLOA Indian tribes essentially exercised only misdemeanor criminal jurisdiction. In 1968, as part of the Indian Civil Rights Act, Congress limited the sentencing power of tribal courts to no longer than six months in prison and/or $500. In 1986 Congress expanded tribal sentencing power to no more than one year in prison and/or $5,000 per offense. These limitations severely limited the ability of tribal courts to adequately sentence particularly severe offenders. While a state or federal court could impose even life sentences, tribes were left with a mere year in jail no matter how serious the offense or damaging its consequences to the tribal community.
The TLOA gave Indian tribes felony jurisdiction for the first time. If tribes were willing to provide criminal defendants with a handful of enhanced criminal procedures during their trial, including the right to legal counsel, tribal courts can now impose a maximum sentence of 9 years’ incarceration per event. This significant expansion of tribal sentencing showed increased congressional confidence in the judicial and criminal procedures developed and employed in tribal courts and gave tribal courts some of the necessary tools to make reservations safer places.
TLOA was paired in 2013 with the expansion of tribal power in the Violence Against Women Act (VAWA). (The relevant portion for Indian law is now codified at 25 U.S.C. § 1304.) Under VAWA Congress recognized the inherent power of Indian tribes to criminally prosecute non-Indian persons for three crimes: domestic violence, dating violence, and violation of a protection order. This Special Domestic Violence Criminal Jurisdiction (SDVCJ) enabled tribes to criminally prosecute non-Indian persons for the first time. It used the same kind of language employed in the Duro-fix to ensure that the inherent power of Indian tribes to prosecute these non-Indian offenders was not a delegated federal power, but instead a recognition of an inherent power tribes always possessed. In VAWA Congress recognized the inherent need of tribal communities to keep their citizens safe, and that since time immemorial Indian tribes have had customs in place that would punish anyone (Indian or non-Indian) for violent acts in a domestic context impacting their community.
VAWA was responding to the unconscionable rates of gender-based violence in Indian country. Before VAWA, if a non-Indian perpetrator attacked an Indian victim in Indian country, the state could not prosecute because the victim was an Indian, the tribe could not prosecute because under Oliphant the criminal was a non-Indian, and while the federal government would have jurisdiction, declination rates for noncapital crimes in Indian country often exceeded 50 percent. As Justice Ginsburg noted, “The ‘complex patchwork of federal, state, and tribal law’ governing Indian country has made it difficult to stem the tide of domestic violence experienced by Native American women.” United States v. Bryant, 579 U.S. 140 (2016).
Building upon the expanded powers conferred in 2013, Congress further expanded the criminal powers of Indian tribes with VAWA’s 2022 reauthorization. The 2022 act dramatically increases the number of offenses over which tribal courts can criminally prosecute non-Indians. The list now includes assault of Tribal justice personnel, child violence, dating violence, domestic violence, obstruction of justice, sexual violence, sex trafficking, stalking, and violation of a probation order. Accordingly, the term “Special Domestic Violence Criminal Jurisdiction” has been replaced with “Special Tribal Criminal Jurisdiction,” reflecting the broader range of tribal prosecutorial power.
Since the Supreme Court last addressed the question of the inherent criminal powers of Indian tribes, Congress has increased their sentencing authority by 900 percent and broken the Oliphant taboo on tribes not criminally prosecuting non-Indian persons. The National Congress of American Indians issued a five-year report on VAWA in 2018. It found that in the first five years since VAWA expanded tribal court criminal jurisdiction, a total of 18 tribes had secured 74 convictions of non-Indian offenders. Nat’l Cong. of Am. Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction (SDVCJ) Five-Year Report (Mar. 20, 2018). Today a total of 27 tribes are currently implementing the SDVCJ. That number will only increase with the enhanced powers recognized in the 2022 reauthorization.
It is not only Congress that is reinvigorating the inherent powers of Indian tribes. The Supreme Court has shifted its approach to Indian law in recent years and has given considerably more credence to tribal assertions of inherent authority and tribal treaty rights, often defeating attempts by the state to limit tribal power.
The language of the Court is telling. In denying the State of Washington the power to impose its motor fuel tax on a Yakima tribal business the Court wrote:
Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakimas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.
Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1021 (2019).
In rejecting an attempt by the State of Oklahoma to criminally prosecute an Indian who committed several sexual offenses on land within the original boundary of the Muskogee (Creek) Nation, the Court wrote:
On the far end of the Trail of Tears was a promise. *** “[No] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.
McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020).
When concluding that a Crow Tribal Police Officer could stop, detain, and search a non-Indian even when the tribal court could not have prosecuted the defendant under Oliphant, the Court wrote:
To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats. Such threats may be posed by, for instance, non-Indian drunk drivers, transporters of contraband, or other criminal offenders operating on roads within the boundaries of a tribal reservation.
United States v. Cooley, 141 S. Ct. 1638, 1643 (2021).
Together these cases illustrate a remarkable change in the Court’s approach to the role of the tribal sovereign. Cooley is the most significant in this regard because it was not also interpreting the language of a treaty or statute but was entirely predicated upon the inherent powers of Indian tribes. In Cooley the Court applied Montana’s conception of inherent tribal power to the criminal sphere for the first time. It used the second Montana exception to conclude that because a non-Indian drug user behind the wheel of a vehicle posed a threat to the health and welfare of the entire reservation community, the tribal officer had the inherent power to stop and then detain the non-Indian until state or federal officers arrived. The Court suggested these facts fit the Montana language “almost like a glove” and resulted in a unanimous opinion recognizing that the inherent criminal powers of tribal law enforcement are larger than the inherent jurisdictional powers of the tribal court.
This trend has not gone unnoticed by scholars. A library of new scholarship is examining what expanded judicial deference to inherent tribal power might mean. Professor Matthew Fletcher at Michigan State has perhaps the most comprehensive discussion in his new work Muskrat Textualism. 116 Nw. U. L. Rev. 963 (2022). Professor Fletcher suggests that in the area of Indian law, the Court is moving from a form of canonical textualism where interpretative rules are manipulated to achieve the desired policy preferences of individual justices, to a form of judicial deference where Indian treaties and statutes are given their plain meaning but where the Court exercises judicial restraint when ambiguity arises. This restraint results in the Court recognizing that Indian tribes retain all of the inherent powers of sovereignty and refuses to use judicial power to arbitrarily limit tribal sovereignty. It also reinforces the principle that any attempt to infringe on tribal sovereignty by Congress must be clear and unambiguous. Given Congress’s recent deference to inherent tribal power and reticence to restrict tribal sovereignty, this new judicial minimalism has invited tribes to reassert themselves as actors instead of passive participants in Indian law.
Consenting to Criminal Jurisdiction
In the absence of congressional or judicial action to overturn Oliphant, an intermediate step that expands tribal criminal jurisdiction over non-Indians would be to permit a non-Indian person to consent to the criminal jurisdiction of the tribal court. This new basis for tribal court criminal jurisdiction is perfectly consistent with the direction of inherent tribal sovereignty adopted by Congress and applied by the courts.
VAWA’s reauthorizations are telling. By recognizing the inherent power of tribal courts to criminally prosecute non-Indians for some domestic violence–based crimes, and then subsequently expanding the list to include crimes unrelated to domestic violence, Congress has shown that it regards tribal forums as appropriate places to criminally punish non-Indians who commit crimes in Indian country. Congress has broken the Oliphant prohibition on tribal courts criminally prosecuting non-Indians and has done so not by delegating federal authority but by recognizing the inherent power of tribes to criminally prosecute. VAWA requires that non-Indian defendants in tribal court be given access to a public defender if they cannot afford their own legal counsel and ensures that juries hearing cases involving non-Indian defendants may not systematically exclude other non-Indians who live on the Reservation from the jury pool. 25 U.S.C. § 1304(d)(3)(B). While tribal court proceedings may use a different set of procedures or afford defendants a different set of rights than state or federal courts, Congress has determined they are proper places to criminally punish at least certain non-Indian offenders. A unanimous Supreme Court agreed: “Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions.” Bryant, 579 U.S. at 157.
The Supreme Court has likewise set the groundwork to approve of consensual tribal court criminal jurisdiction over non-Indians. In Cooley the Court applied Montana’s conception of inherent tribal sovereignty to criminal powers for the first time. While Cooley used the direct effects exception to find that tribal law enforcement has the inherent power to stop, detain, and search a non-Indian suspected of committing crimes that would have a direct effect on the health and welfare of the tribal community, consensual criminal jurisdiction relies on the first exception.
Recall that the first Montana exception allows tribes to assert their inherent power over “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at 565. Non-Indians who work for Indian tribes, who obtain hunting or fishing licenses from tribes, who register as Indian traders in order to sell goods or provide services on the Reservation, and who contract with the tribe or its businesses could all—if the contract or license were drafted correctly—consent to criminal jurisdiction. While the original language from Montana suggests that the tribal regulation take the form of “taxation, licensing, or other means,” now that Cooley has applied Montana to govern the inherent criminal powers of tribal actors, there is no reason that “other means” of tribal regulation could not include the assumption of criminal jurisdiction.
An Example from the Ninth Circuit
The idea that an Indian tribe that otherwise lacks criminal jurisdiction over a non-Indian could obtain and properly assert that jurisdiction if the non-Indian consents is not without some judicial precedent. In 2017 the Ninth Circuit Court of Appeals issued an important opinion that established a foundation for tribes to assert criminal jurisdiction over consenting non-Indians. Roberts v. Elliott, 693 F. App’x 630 (9th Cir. 2017).
The Northern Cheyenne Tribal Court Rule of Criminal Procedure 9(B)(3) allows for non-Indians to consent to personal jurisdiction in the tribal court for criminal proceedings. Sherri Roberts, a non-Indian, was charged with trespass in Northern Cheyenne Tribal Court. Appearing with a tribal advocate, and after being advised of her right to refuse criminal jurisdiction, she affirmatively consented to the Tribal Court’s jurisdiction. When she subsequently failed to appear for required hearings, the court issued bench warrants for her arrest. Ms. Roberts was twice duly arrested by federal Bureau of Indian Affairs officers pursuant to the tribally issued bench warrants. Ms. Roberts brought a Bivens action in the US District Court of Montana against the officers alleging that the arrests violated her Fourth and Fifth Amendment rights because, as a non-Indian, the tribal court had no criminal jurisdiction over her and so the bench warrants issued by the tribal court were unlawful. She argued that the officers’ decision to arrest her pursuant to the allegedly unlawfully issued warrants was therefore a violation of her constitutional rights.
The district court gave summary judgment to the officers on the basis of qualified immunity, and the Ninth Circuit panel (Judges Bybee, M. Smith, and Christen) unanimously agreed. The Ninth Circuit explained: “The Supreme Court has not addressed the interaction between Oliphant’s rejection of inherent criminal jurisdiction over non-Indians and a non-Indian’s ability to waive the question of personal jurisdiction before the tribal court in criminal matters. The extent to which a non-Indian may consent to tribal jurisdiction is not settled law.” Id. at 631. The panel reasoned that when the BIA officers arrested Ms. Roberts pursuant to a facially valid warrant, they did not violate any clearly established constitutional law and so were entitled to qualified immunity.
The court went further in its reasoning, implicitly validating the proposition that a non-Indian may lawfully consent to criminal jurisdiction in a tribal court. It reasoned that even if the BIA officers knew that Ms. Roberts was a non-Indian at the time of the arrest, they would not have acted unreasonably by enforcing the bench warrant precisely because “the tribal court rules provide for waiver of lack of personal jurisdiction over non-Indians.” Id.
The court also affirmed the dismissal of a Federal Tort Claims Act claim for false arrest and false imprisonment brought against the United States. Under the relevant Montana law, a plaintiff seeking to recover for false arrest or false imprisonment must show the unlawfulness of the restraint. The panel explained that Ms. Roberts could not prove that the restraint was unlawful because it was made pursuant to a facially valid warrant. “The bench warrant was issued pursuant to the tribal judge’s correct determination that Roberts failed to appear at a status conference, which established probable cause to arrest her. Even if Roberts is correct that the warrant was not actually valid, that does not dispute the facial validity of the warrant in the eyes of the arresting officers for the purpose of the tort analysis.” Id.
Throughout, the opinion the court emphasized the reasonableness of the BIA officers in relying on a tribally issued warrant. If even knowledge that Ms. Roberts was a non-Indian was not enough to rebut probable cause for the arrest, then the Ninth Circuit has implicitly recognized that non-Indian persons like Ms. Roberts could, at least under some circumstances, consent to the criminal jurisdiction of a tribal court. If Oliphant’s prohibition on tribal court criminal jurisdiction over non-Indians does not reach non-Indians who have consented to criminal authority, then tribes have a whole new set of potential tools to enforce their criminal laws over recalcitrant non-Indians in order to enforce the tribal law on the Reservation.
Using the Northern Cheyenne Model
If Roberts is going to serve as the legal justification for a consent-based theory of tribal court criminal jurisdiction over non-Indians, it is worth examining in more detail the approach the Northern Cheyenne Code takes to effectuate the consent. The relevant code provision is built upon a tribe’s right to exclude non-Indians from its reservation.
Rule 9(B)(3) of the Northern Cheyenne Code of Criminal Rules provides, in part:
If the defendant is a non-Indian, the Court shall explain his right to assert lack of personal jurisdiction of the Court over the defendant in a criminal action. If the defendant affirmatively elects to waive personal jurisdiction, the action shall proceed as if the defendant were an Indian. If the non-Indian defendant does not affirmatively waive the lack of personal jurisdiction, the action shall become a civil action to exclude the defendant from the Reservation. . . . The defendant may assert or waive lack of jurisdiction at any time prior to the start of trial.
In re Roberts Litig., 97 F. Supp. 3d 1239 (D. Mont. 2015).
Importantly the Tribal Code recognizes the importance of obtaining the affirmative consent of non-Indians before proceeding to subject them to the criminal jurisdiction of the tribal court. Why would anyone agree to consent? Because the alternative is to be excluded from the Reservation.
Tribes undoubtedly have the right to exclude non-Indians from their Reservation. In Montana the Court held that Indian tribes could exclude non-Indians from tribal lands, or if it permitted their entry, it could condition their entry on the acceptance of tribal regulation. Montana, 450 U.S. at 557. A year later, the Court decided Merrion v. Jicarilla Apache Tribe, where it reaffirmed a tribe’s right to exclude non-Indians and further held that the inherent power of an Indian tribe permitted it to exact taxes from non-Indians as a condition of entry upon tribal land. 455 U.S. 130 (1982). The impact of these cases is a fairly clear consensus that tribes can exclude non-Indians from the reservation or, in exchange for permission to be on the reservation, the tribe may require compliance with tribal rules. As the Ninth Circuit opinion in Roberts recognizes, the US Supreme Court has never dealt with consent to criminal jurisdiction and no court has denied that non-Indians can consent to criminal jurisdiction even if Oliphant would otherwise suggest that a tribe could not inherently assert criminal power. The power to exclude is a core aspect of tribal sovereignty, and tribes may use this power to protect themselves and to ensure that non-Indians comply with tribal rules when in Indian country. See generally Alex Tallchief Skibine, The Tribal Right to Exclude Others from Indian-Owned Lands, 45 Am. Indian L. Rev. 261 (2021).
Although the record is incomplete, Ms. Roberts probably consented to tribal court criminal jurisdiction because the alternative was to be excluded from the Northern Cheyenne Reservation. Because she lived within the Reservation’s boundaries, being subject to the criminal jurisdiction of the Northern Cheyenne Tribal Court may have been preferable to the alternative of being excluded from the community in which she lived. Regardless of her precise motivation, Ms. Roberts affirmatively consented, after being informed of the potential consequences and with her legal advocate present, to the criminal jurisdiction of the tribal court.
The Northern Cheyenne Code and the Roberts opinion from the Ninth Circuit offer an interesting way forward for advocates of expanded tribal court criminal jurisdiction. After Cooley the Court has recognized that the inherent powers of Indian tribes described in Montana apply to the criminal powers of tribal courts. The first Montana exception allows the assertion of jurisdiction over non-Indians with their consent. As Roberts demonstrates, it is possible for non-Indians to give informed consent to the criminal jurisdiction of tribal courts.
While the Northern Cheyenne obtain this informed consent in a judicial proceeding where a judge explains the consequences of consent to the non-Indian defendant, there is nothing about those facts that requires that consent be obtained in that manner. Montana suggests that the consent can be obtained through “commercial dealings, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565. Tribes wishing to expand their inherent criminal powers over non-Indians could adopt a code provision mirroring that of the Northern Cheyenne that would convert a civil action into a criminal action with the informed consent of the non-Indian obtained in a judicial hearing, but consent to tribal court criminal jurisdiction could also be obtained through other mechanisms where non-Indians interact with Indian tribes. For example, tribes can require non-Indians to obtain a tribal hunting or fishing license to engage in those activities on tribal lands and may condition the hunting and fishing by setting tribal bag or creel limits. See id. at 544; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). Among the conditions tribes could begin to require is an explicit consent to be bound by the tribe’s criminal code in order to obtain the permit.
There are numerous implications for the extension of tribal court criminal jurisdiction by consent. Non-Indian businesses contracting with Indian tribes to provide goods or services could be asked to consent to the tribe’s criminal code to criminally enforce tribal laws related to white-collar crime. Non-Indians who stay at a tribal casino or resort hotel could have consent to criminal jurisdiction added to the terms and conditions when they register for their accommodation. Consent could be obtained to utilize tribal ski lifts, to camp on tribal lands, in tickets to access tribal cultural property, etc.
The duration of the consent may be limited. Perhaps a hotel guest is consenting to the tribe’s criminal jurisdiction only for the extent of their room reservation. A ticket to a tribal museum may be limited to the hours spent at the museum itself. But even these limited periods of consent would provide tribes assurance that not only could they civilly exclude a misbehaving non-Indian, but they could also affirmatively punish the non-Indian for violations of the tribal criminal code.
Finally, this extension of criminal jurisdiction through consent does not violate any principle of public policy or exceed the scope of criminal jurisdiction generally. Consent merely provides a way around the poorly reasoned Oliphant decision to reaffirm the inherent powers of Indian tribes. A Florida resident who visits a museum in Georgia or goes camping in Alabama, or obtains a fishing license from Mississippi, expects to be subject to the criminal jurisdiction of those states when physically present within their geographic boundaries. Oliphant obscured and disrupted this general jurisdictional principle when non-Indians enter tribal lands. Permitting criminal jurisdiction by consent merely restores the balance that a sovereign should be able to assert its criminal power over all persons within its borders.
Conclusion
It is not a radical proposition to suggest that Indian tribes should have criminal jurisdiction over persons who violate the tribal code within the tribe’s reservation boundaries. Other sovereigns, both states and foreign countries, regularly operate using this geographic conception of criminal jurisdiction. Only the twisted Oliphant precedent limited tribes from asserting similar criminal power.
Consent is a half measure to expand tribal court criminal jurisdiction until either the courts or Congress reverse Oliphant. Fortunately, both judicial and legislative precedent suggest these branches of government are open to limiting Oliphant. In Lara the Court ratified Congress’s expansion of the inherent criminal powers of Indian tribes and revised its previously inconsistent holding in Duro. In 2021 the Court went further. In Cooley it held that tribal law enforcement could stop, detain, and search non-Indians even if the tribal court could not prosecute the defendant. In 2013 and again in 2022 Congress openly broke with Oliphant when it reauthorized VAWA—recognizing the inherent criminal power of Indian tribes to criminally prosecute non-Indians for an expanding set of offenses.
Given the decided trend in expanding the inherent criminal power of Indian tribes, both Congress and the courts should not strongly object to the assertion of tribal court criminal jurisdiction over non-Indians when the defendants have consented. Because Indian tribes have always had the inherent power to exclude a non-Indian from the reservation, permitting the non-Indian to remain on the reservation if they consent to tribal criminal proceedings does not treat the non-Indian defendant unfairly. They have a choice between being subject to the tribe’s criminal authority or not being physically present in Indian country.
While the Northern Cheyenne Tribe, as demonstrated in the Roberts case, obtained the necessary informed consent from the non-Indian in a judicial forum, Montana suggests that tribes could obtain consent to jurisdiction over non-Indians in a myriad of other ways. If a tribe wishes to extend its criminal power over non-Indians, it could seek affirmative consent to tribal court criminal jurisdiction in any number of formats, including through contract, in tickets, and as a condition to obtain a tribal license. Non-Indians could make a conscious choice: either subject themselves to the criminal jurisdiction of the tribe or lose a contract with a tribal business, be prohibited from hunting or fishing on the reservation, be denied a camping permit or a ski lift ticket, etc.
Americans make these concessions every day. When a family from North Dakota decides to visit Disney World, it agrees to be bound by Florida law during the visit. The jurisdictional assumption in that case is implicit; merely by entering the state of Florida, the family is bound by Florida’s criminal rules. Until Oliphant is reversed, tribes are unable to assert this implicit criminal power—but with the non-Indians’ explicit consent, tribes should be able to assert criminal jurisdiction over them.
