NCJ Number
64171
Journal
FEDERAL BAR JOURNAL Volume: 20 Dated: (SUMMER 1960) Pages: 223-229
Date Published
1960
Length
7 pages
Annotation
LAW AND LAW ENFORCEMENT ON INDIAN RESERVATIONS ARE DISCUSSED; LEGAL AUTHORITY, APPLICABILITY OF STATE AND FEDERAL LAWS, INDIAN COURTS, AND RELATIONSHIP WITH COMMUNITY POLICE ARE ADDRESSED.
Abstract
SINCE THE 1832 DECISION IN SAMUEL A. WORCESTER V. STATE OF GEORGIA, THE COURTS HAVE UNIFORMLY HELD THAT STATE LAWS DO NOT APPLY TO INDIANS ON THEIR RESERVATIONS. IN ADDITION, POWERS OF SELF-GOVERNMENT OF AN INDIAN TRIBE ARE NOT DELEGATED TO THE TRIBE BY THE FEDERAL GOVERNMENT BUT RATHER ARE POWERS WHICH A TRIBE HAS INHERENTLY BY REASON OF ITS ORIGINAL TRIBAL SOVEREIGNTY. TODAY, INDIAN LAW AND ORDER ARE CARRIED OUT THROUGH A TRIBAL COURT AND TRIBAL CODE OF LAW PATTERNED AFTER THE COURTS AND CODES OF LAW THAT EXIST IN THE ANGLO SYSTEM OF JURISPRUDENCE. THERE ARE TWO TYPES OF INDIAN COURTS: A TRIBAL COURT ESTABLISHED BY APPROPRIATE TRIBAL ORDINANCE OR RESOLUTION, AND A COURT OF INDIAN OFFENSES, ESTABLISHED UNDER THE REGULATIONS OF THE DEPARTMENT OF THE INTERIOR. THE JURISDICTION EXERCISED BY INDIAN COURTS DOES NOT PURPORT TO BE EXCLUSIVE. PROVISIONS IN THE TRIBAL CODES AND IN THE DEPARTMENT OF THE INTERIOR REGULATIONS SPECIFICALLY RECOGNIZE THE CONCURRENT NATURE OF SUCH JURISDICTION. INDIAN COURTS ARE PRESIDED OVER BY INDIAN JUDGES, ARE OBSERVANT OF DUE PROCESS, AND OPERATE SEPARATELY FROM THE POLICE. IN MOST CASES, FACILITIES FOR INCARCERATION OF OFFENDERS SENTENCED TO IMPRISONMENT BY THE COURTS ARE AVAILABLE. USUALLY PROFESSIONAL ATTORNEYS DO NOT REPRESENT THE ACCUSED, BUT PROVISIONS ARE MADE FOR ANY PERSON APPEARING BEFORE THE COURT TO BE REPRESENTED BY A MEMBER OF THE TRIBE. MANY OF THE INDIAN COURTS ARE DOING A REASONABLY GOOD JOB IN MAINTAINING LAW AND ORDER. THOSE THAT ARE NOT LACK UNDERSTANDING OF LAW ENFORCEMENT OPERATIONS. IN RECENT YEARS, SEVERAL ACTS OF CONGRESS HAVE CONFERRED UPON STATES CRIMINAL OR CIVIL JURISDICTION OR BOTH OVER PARTICULAR RESERVATIONS LOCATED WITHIN THESE STATES. KANSAS, NORTH DAKOTA, AND NEW YORK HAVE OBTAINED SUCH JURISDICTION. TO DATE, THE WISHES OF THE INDIAN PEOPLE AFFECTED BY SUCH LEGISLATION HAVE NOT BEEN IGNORED DURING THE LEGISLATIVE PROCESS. FOOTNOTES ARE PROVIDED IN THE ARTICLE. (LWM)