This was a federal law that established that some states can assume criminal jurisdiction over Native Americans. Public Law 280 allows the transfer of federal law enforcement authority to state governments within six states. Originally, the first six states affected by this were California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska (after Alaska became a state). Later on other states were allowed to transfer power if given consent from Native American tribes.

This law has added yet another hurtle or layer of complexity to tribal governments and criminal jurisdiction.

The Indian Civil Rights Act allowed tribal governments to adopt most of the rights found within the Bill of Rights. Not all provisions from the Bill of Rights were found in the Indian Bill of Rights which was a part of the Indian Civil Rights Act. Some exclusions included: the establishment clause,the right to appoint counsel, the right to a grand jury, the indictment requirement, and the right to a civil jury trial. There was also a sentence cap within ICRA which only allowed tribes to sentence single offenders for a maximum of six months in prison and or a fine of $500. The first Amendment to the Indian Civil Rights Act was a part of the Anti-Drug Abuse Act which helped increase the sentencing cap for single offenders within tribal governments. The sentencing cap for single offenders was now up to one year in prison and or a fine of $5000.

A maximum sentence cap puts severe limitations on tribal government. This sentencing limit would often encourage criminal behavior in some areas like Native American Reservation. The sentence cap did not pose a real threat to offenders.

Mark David Oliphant was arrested and charged by tribal police for assaulting a tribal police officer in August 1972. Mark Oliphant was a permanent non-Indian resident living on the Port Madison Indian Reservation in Washington. Also at the time of Oliphant’s arrest, the Suquamish Tribe’s Chief Seattle Days celebration was going on. Tribal police knew that this celebration would bring in lots of attention and people so the tribe requested additional law enforcement assistance from both the county and the Bureau of Indian affairs. Kitsap County ended up sending one deputy and the BIA did not send anyone. During the time of Oliphant’s arrest tribal police were the only police officers on duty.

This resulted in Oliphant applying for a writ of habeas corpus because he was being tried under tribal law even though he was a non-Indian. Habeas corpus defends individuals from wrongful imprisonment. Habeas corpus orders that a public official deliver an imprisoned person to court to prove the reasoning behind their imprisonment. The lower court rejected Oliphant’s application with the reasoning to keep law and order on tribal lands and to maintain tribal sovereignty. Oliphant appealed and his case evutallu reached the U.S. Supreme Court. The Supreme Court ruled in favor of Oliphant (6-2) stating that tribal courts do not have criminal jurisdiction over non-Indians.

Tribal courts do not have criminal jurisdiction over non-Indians. This causes a complex legal system in order to try perpetrators within violent crime cases.

The Tribal Law and Order Act of 2010 was the third amendment to the Indian Civil Rights Act. This act helped to expand the sentencing limitations of the Indian Civil Rights Act from one year to three year in prison and or fines up to $15,000 for any defendant tried or convicted in tribal court.

If a tribe decided to adopt TLOA, that tribe would need to follow a checklist in order to implement enhanced sentencing within tribal courts. These additional provisions include all due process protections listed in TLOA, some of the provisions include the free, appointed licensed attorneys for defendants, and a law trained judges, as well as the defendant should have complete access to all existing tribal crime laws. This checklist can be rather expensive to fund for tribal courts. As of 2019 only 16 out of the 319 federally recognized tribal court systems have adopted TLOA’s enhanced sentencing.

The original Violence Against Women Act was passed in 1994 in order to help improve criminal jurisdiction that surrounds sexual violence committed against women. VAWA has been reauthorized 4 times since its creation. The most recent was March 15, 2022. The second reauthorization of VAWA from 2005 was the first time the Act created a separate section that addressed safety for Native American women. Under the third reauthorization of VAWA in 2013 it expanded upon Title 9 Safety for Indian Women and authorized tribal jurisdiction to prosecute non-Indians for domestic violence and dating violence. VAWA 2013 did not include tribal jurisdiction for non-Indian perpetrators that were strangers. This act only included cvoerage for sexual violence commited by intmate partners that were non-Indians On March 15 2022, President Biden signed another Reauthorization of VAWA that expanded tribal jurisdiction even further for Native American women. These additional categories include: domestic violence, dating violence, sexual violence, stalking, sex trafficking, child violence, obstruction of justice, and assaults against tribal justice personnelreauthorization

This law has added yet another hurtle or layer of complexity to tribal governments and criminal jurisdiction.