Indian Tribal Sovereignty.

Criminal Jurisdiction and Procedure

The relationship between Indian tribes and the U.S. government has changed dramatically over the last 200 years. During the British colonial period, Indian tribes were considered foreign nations by the British crown and were dealt with by treaty. This relationship worked so well that the majority of the tribes allied with the British during the Revolutionary War. The relationship between the tribes and the American colonists was never as strong. At first, the colonists treated the tribes as they were treated by the British, as independent sovereigns, but their sovereignty was diluted over time, and they were treated as dependant sovereigns, retaining limited control of their internal affairs. This changing and uneasy relationship set the stage for many battles, both in the field and in the courts, regarding the status of Indian tribes in modem America.

This article briefly examines the judicial history of tribal sovereignty in American courts. It then reviews the major federal legislation impacting criminal jurisdiction on tribal land and discusses the impact of the federal Constitution on the tribes.

THE QUESTION OF SOVEREIGNTY

In the 1830s, the U.S. Supreme Court decided two cases collectively known as the Cherokee cases: Cherokee Nation v. Georgia [1] and Worcester v. Georgia. [2] In Cherokee Nation v. Georgia, the Cherokee tribe sued to overturn certain laws of the state of Georgia that it felt interfered with its internal affairs. In order to bring the suit, the tribe had to qualify as a "foreign nation" under the U.S. Constitution. [3] The Court decided the tribe was not a foreign nation and dismissed the suit. However, the Court did characterize the tribe as a "domestic dependent nation." 4 The following year, the Court decided the case of Worcester v. Georgia. In this case, Georgia had passed a law requiring a state permit for any non-Indian to live on the Cherokee reservation. Worcester, a missionary, broke the law and was arrested. The Supreme Court decided that the laws of the state of Georgia had no force on the Cherokee reservation. The Court said that Indian reservations are "distinct political communities, having terr itorial boundaries, within which their authority is exclusive...." 5

The Cherokee cases clearly established that the tribes were separate political entities with authority over their internal affairs and beyond the reach of the authority of the individual states. However, their relationship with the federal government was much different. As noted previously, in Cherokee Nation v. Georgia, the Supreme Court characterized the tribes as dependent nations, meaning dependent upon the authority of the federal government. The Court described the relationship as that of a "ward to his guardian." 6 The Court interpreted this trust relationship to mean that the federal government, specifically Congress, could exercise extensive authority over the tribes. 7 In 1903, the Court recognized that Congress has plenary power over Indian affairs "by reason of its exercise of guardianship over their interests." 8 Over the years, Congress has used that plenary power to apportion criminal jurisdiction on Indian lands among federal, state, and Indian governments.

CRIMINAL JURISDICTION

The Federal Enclaves Act

In 1817, Congress passed The Federal Enclaves Act, 9 asserting federal criminal jurisdiction over non-Indians for crimes they commit in Indian country and over Indians for some crimes they commit against non-Indians. Under the act, "the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States... [extend] to the Indian country." 10 Consequently, for jurisdictional purposes, Indian land is treated today as a "federal enclave," similar to a federal building, park, prison, or military base. The act has three important exceptions: it does not apply to crimes by Indians against Indians; to crimes by Indians that have been punished by the tribe; nor to crimes over which a treaty gives exclusive jurisdiction to the tribe. The act appears to cover "victimless" crimes committed by Indians, but the Supreme Court, in United States v. Quiver, 11 held that the federal government lacked jurisdiction in such cases where both par ties are Indian.

The act imports the entire body of federal criminal law into Indian country. Federal enclave laws adopt or define traditional state law crimes, such as arson, murder, and robbery, and apply them to federal enclaves by making the site of the crime one of its elements. Thus, one can violate an enclave law only by committing a certain act in an enclave. However, the federal criminal code applied to federal enclaves is by no means complete. Congress recognized that there were criminal acts being committed within federal enclaves that were going unpunished because there were no specific federal criminal laws prohibiting them and because state criminal law had no force within these enclaves, including Indian country.

Congress addressed this oversight in 1825 by enacting the Assimilative Crimes Act. [12] That act reads in part:

Whoever within or upon any [federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. [13]

This provision makes state criminal law applicable to any offense, not otherwise specifically addressed by a separate federal statute, when committed on a federal enclave. Because the definition of federal enclave includes Indian reservations, this provision is applicable to Indian country through the Federal Enclaves Act.

An important question left open by the Federal Enclaves Act was which sovereign has jurisdiction over crimes on Indian land when both the defendant and victim are non-Indians. The U.S. Supreme Court dealt with that issue in 1881 in United States v. McBratney. [14] The case involved the murder of a non-Indian by another non-Indian on the Ute Indian reservation in Colorado. The defendant was tried and found guilty of murder in federal court. The defendant appealed his conviction on the ground that there was no federal jurisdiction to try his case. The Supreme Court ruled in favor of the defendant finding that when a crime is committed on an Indian reservation by a non-Indian against a non-Indian, the state in which the reservation is located has criminal jurisdiction. The Court reasoned that unless the enabling act admitting a state into the Union excluded state jurisdiction over crimes committed on an Indian reservation involving only non-Indian parties, state courts are vested with jurisdiction over non-Indi ans who commit crimes on Indian lands. [15]

The Major Crimes Act

Another major limitation of the Federal Enclaves Act is that it does not address crimes on Indian lands where both parties are Indians. A crime on the Brule Sioux reservation in 1881 spurred Congress to enact legislation to overcome this limitation.

On August 5, 1881, Crow Dog shot and killed Chief Spotted Tail. Both individuals were Brule Sioux, and Brule law required that Crow Dog make reparations to Spotted Tail's family. When the press reported the resolution of this tribal case, restitution in the form of $600, eight horses, and one blanket, a cry for federal intervention arose. Chief Spotted Tail was well liked by white settlers and federal government officials, who believed that a matter such as this should be resolved in federal court. Crow Dog was arrested and tried by a federal territorial court and sentenced to hang for murder. On appeal, the Supreme Court ruled that Indian offenders committing crimes on the reservation were not subject to federal jurisdiction and reversed the conviction. [16] The Court explained that by treaty, the United States had allowed the tribe to retain its sovereignty. Any new criminal jurisdiction policy on the part of the U.S. government would require "a clear expression...of Congress." [17] The public demanded act ion, causing Congress to enact the Major Crimes Act.

The Major Crimes Act [18] was passed in 1885 and established federal jurisdiction over seven crimes committed by Indians in Indian country. The original seven crimes covered by the act were, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. The act has been subsequently amended to include seven additional crimes: kidnaping, incest, assault with a dangerous weapon, assault resulting in serious bodily injury, assault with intent to commit rape, robbery, and felonious sexual molestation of a minor. The intent of the act was to permit federal punishment of major crimes by Indians against Indians; however, the Major Crimes Act applies whether the victim is Indian or non-Indian. [19]

Taken together, the Major Crimes Act, the Federal Enclaves Act, and the Assimilative Crimes Act give the federal government exclusive jurisdiction to prosecute offenses committed on Indian lands when the defendant is non-Indian and the offense is committed against an Indian or Indian interests and when an Indian defendant commits one of the major crimes enumerated in the Major Crimes Act. States have jurisdiction over crimes involving non-Indian defendants and victims committed on Indian lands within their borders. The tribes have jurisdiction over nonmajor crimes (misdemeanors) committed on Indian lands by Indians.

The question of criminal jurisdiction over misdemeanors where the defendant is non-Indian remained unanswered until the Supreme Court decided Oliphant v. Suquamish Indian Tribe. [20] In this case, tribal police arrested Oliphant, a non-Indian living on a reservation in Washington State. Oliphant was charged with resisting arrest and assault of a police officer. He was found guilty in tribal court and appealed his conviction, claiming he was not subject to Indian jurisdiction because he was not an Indian. The Supreme Court upheld Oliphant's claim. The court found that due to the tribe's domestic, dependant status, it did not have jurisdiction over non-Indians unless Congress granted such power.

The above cases illustrate that if a non-Indian commits a crime against an Indian on a reservation then the federal government has jurisdiction. If a crime is committed in Indian country by a non-Indian against a non-Indian, then the state has jurisdiction. But what if a nonmember Indian commits a crime on a reservation?

In Duro v. Reina, [21] the Supreme Court defined the term "Indian" for purposes of tribal criminal jurisdiction. Tribal police arrested Duro for discharging a firearm on the Salt River Pima-Maricopa Indian Reservation, a misdemeanor charge. Duro had allegedly used the firearm to kill a 14-year-old boy from the Gila River Indian tribe. (The murder falls into the jurisdiction of the federal government because it is a felony). Duro was an enrolled member of the Torres-Martinez band of the Cahuilla Mission Indians of California, but was living and working on the Salt River Pima-Maricopa Indian Reservation in Arizona. Duro appealed his misdemeanor conviction on the grounds that the Indian Civil Rights Act of 1968 prohibits tribes from prosecuting non-Indians. The Supreme Court held that the tribe had no jurisdiction over nonmember Indians. The Court ruled that tribes differed in social and cultural structures and that enrollment in a tribe constitutes consent to the authority of that tribe but not to other tribes . Congress responded to the Duro decision by passing Public Law 102-137, [22] which gives tribes jurisdiction in misdemeanor crimes over all Indians to include nonmember Indians.

Public Law 280

The issue of criminal jurisdiction on Indian lands was further confused by the passage of Public Law 280 [23] in 1953. This federal law grants so-called "mandatory states" all criminal and civil jurisdiction over Indian lands within their borders. The states affected by the legislation were California, Minnesota (except for the Red Lake Reservation), Nebraska, Oregon (except for the Warm Springs Reservation), Wisconsin, and Alaska after gaining statehood (except for the Annette Islands Metlakatla Indians). This law effectively terminates all tribal criminal jurisdiction in the affected Indian country within these states. Public Law 280 also provides that any state (so-called "optional states") wishing to assume jurisdiction over tribes within their borders may do so by state law or by amending the state constitution.

CONSTITUTIONAL ISSUES

In 1896, the Supreme Court decided Talton v. Mayes. [24] The case involved a tribe's use of a grand jury system that did not use the number of jurors specified in the U.S. Constitution. The Court ruled that Indian tribes are not bound by the provisions of the U.S. Constitution. The Court recognized that Indian tribes are sovereign nations, whose sovereignty was established and recognized prior to the adoption of the Constitution, and had not ratified the Constitution as the states had. Consequently, the tribes were not constrained by any of the provisions of the federal Constitution when dealing with tribal members, and tribal members could not claim any Constitutional protections against the actions of their tribes. Congress became concerned about the implications of this holding and passed the Indian Civil Rights Act of 1968 [25] (IRCA).

The Indian Civil Rights Act of 1968

The IRCA imposed most of the substantive restraints of the Bill of Rights upon the tribes. The most important exclusions from the act are the right to appointed counsel (the acts provides a right to counsel at the tribal member's expense) and the Grand Jury Clause of the Fifth Amendment. The ICRA prohibits the exclusion of evidence as a remedy for violations of its provisions. The act also limits tribal criminal jurisdiction over Indians to misdemeanors. The maximum penalties in tribal court for misdemeanors are up to 1 year in jail and $5,000 in fines per count. [26] The question remains to what effect, if any, the ICRA has upon states or the federal government.

Double Jeopardy 

The Double Jeopardy Clause of the federal Constitution provides: "...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." [27] A similar provision is found in the Indian Civil Rights Act. [28] Under the Dual Sovereignty Doctrine, [29] prosecution of a defendant under the laws of separate sovereigns does not subject a defendant to double jeopardy. This is based on the principle that either, or both, sovereigns may punish such an offender for the same offense because the defendant has committed two separate offenses, one offense against each sovereign.

In United States v. Wheeler, [30] the Supreme Court was asked whether tribal punishment and successive federal punishment amounted to a violation of the federal double jeopardy doctrine. Anthony Wheeler was an enrolled member of the Navajo Nation. He was arrested by tribal police and pled guilty in tribal court to disorderly conduct and contributing to the delinquency of a minor. He was then charged in federal court with statutory rape for conduct arising from the same incident. The appeal rested on Wheeler's contention that the second prosecution was barred by the double jeopardy clause contained in the Fifth Amendment of the U.S. Constitution.

The Court found that the tribes retain criminal jurisdiction unless it is "withdrawn by treaty or statute, or by implication as a necessary result of their dependent status...."[31] Because the Navajo Nation's criminal jurisdiction over its tribal members was never divested, it retained its criminal jurisdiction. A subsequent federal prosecution was not double jeopardy because Wheeler's first prosecution was by a sovereign separate from the United States. [32] This case settled the double jeopardy issue regarding Indians tried in tribal court and then prosecuted in federal court for acts arising out of the same offense. But what if the Indian involved is not a member of the tribe prosecuting him?

In United States v. Weasel-head, [33] the Eighth Circuit Court of Appeals held that Public Law 102-137 allowed tribes to retain criminal jurisdiction over all Indians on their reservations, whether enrolled members of the prosecuting tribe or not. Therefore, because these two sovereigns, the tribe and the federal government, are prosecuting on the basis of their own inherent sovereignty, double jeopardy is not violated by dual prosecutions.

Extradition 

Extradition is "the surrender by one nation or state to another of an individual accused or convicted of an offense committed within the territorial jurisdiction of the latter authority, which, being competent to try and to punish the offender, demands his surrender."34 Extradition between separate sovereigns is normally established by treaty. If no extradition treaty exists between nations, no legal duty to extradite exists. Extradition between states is governed by the Extradition Clause of the U.S. Constitution.35 However, because the U.S. Constitution does not bind Indian tribes, extradition between states and Indian tribes must be facilitated through some other means, either by a treaty agreement with the federal government or an extradition agreement between a state and a tribe.

In Merrill v. Turtle,36 the Navajo tribe refused Oklahoma's request to extradite Turtle, a Cheyenne Indian, living on the Navajo reservation. The state of Oklahoma asked the state of Arizona to arrest and extradite Turtle. Officers from Arizona entered onto the Navajo reservation and arrested Turtle. The Ninth Circuit Court of Appeals decided that the state of Arizona had no authority to arrest Turtle on the Navajo reservation on behalf of the state of Oklahoma. In reaching its decision, the court relied on the Navajo Treaty of 1868, which provided for extradition between the tribe and the federal government. The court also relied on a 1956 Navajo resolution containing extradition procedures that only provided for extradition to Arizona, New Mexico, and Utah. The court viewed federal approval of this resolution as evidence that the tribe was exercising its own inherent extradition authority. The court further found that the state of Arizona could not assume the tribe's extradition authority. The Turtle case was followed by a New Mexico Supreme Court case, Benally v. Marcum,37 which held that an arrest by a nontribal officer of a tribe member on a reservation was invalid because it did not comport with the extradition requirements of the Navajo code.

Some subsequent cases have not been as supportive of tribal extradition requirements. For example, in Davis v. Muellar,38 Davis was an enrolled member of the Turtle Mountain Band of Chippewa Indians living and working on the reservation at the time of his arrest. The Turtle Mountain Tribe had an extradition clause in its tribal code. With the cooperation of the tribal police, county sheriff officers questioned and arrested Davis on the reservation for an alleged offense occurring both on and off the reservation. Davis refused to waive his extradition rights and requested a hearing before a tribal judge. When the officers were informed that no judge would be available that day, they took Davis into custody and placed him in the county jail, despite the officers' knowledge that such an action was a violation of the Turtle Mountain extradition ordinance. Davis filed his objections with the state supreme court and sought a writ of habeas corpus from the federal courts.

The U.S. Court of Appeals for the Eighth Circuit balanced the importance of tribal sovereignty against the harm caused to Davis by the illegal arrest and refused to divest the state courts of jurisdiction or grant habeas corpus. The court acknowledged the duty of federal courts to protect tribal sovereignty from state interference and that the sheriffs officers' refusal to follow extradition procedures interfered with tribal judicial authority. However, the court decided that the circumstances of the illegal arrest did not rise to a level that would violate the Due Process Clause. The court used the Fourteenth Amendment standard because it was judging the actions of state officers, not tribal officers. The court also held that the state had not acted in bad faith.

In both Benally and Muellar, the tribes had enacted valid extradition laws. The reviewing courts agreed that the tribal members had been illegally arrested due to the states' failure to comply with the requirements of the tribal extradition procedures. The courts made their decisions after an analysis of the harm suffered by the defendant, the egregious disregard of the extradition procedure, the prejudice to the defendant in having to endure state trial and appeals, and the overall interference with tribal rights of self-government. Based on these factors, the courts decided whether exclusion of evidence was a sufficient sanction against the state, or whether the release of the defendant pending the state's compliance with the extradition laws was required.

It is generally preferable to follow tribal extradition procedures to avoid possible legal consequences and to foster good working relationships with tribal governments. However, not all tribes have extradition procedures. For example, in State v. Spotted Horse, [39] the Supreme Court of South Dakota reviewed the arrest of Spotted Horse on the Standing Rock Sioux Reservation by a city police officer for an offense committed off the reservation. The court noted that the tribe had no provision for extradition in its code. Therefore, the court found no interference with tribal self-government, holding instead that the state seizure of a tribe member on a reservation was an allowable remedy.

The Sixth Amendment Right to Counsel

Indian tribal sovereignty and the Sixth Amendment right to counsel clause of the U.S. Constitution recently has become an issue. The Sixth Amendment right to counsel attaches when formal charges have been filed or when adversarial judicial proceedings have been initiated. [40] This right to counsel is crime specific--meaning that it applies only to the crime to which the individual has been formally charged. [41] Where a state and the federal government, two separate sovereigns, intend to prosecute an individual for crimes arising from the same nucleus of facts, the Sixth Amendment protection afforded the individual formally charged by one sovereign does not necessarily bind the other sovereign who has yet to formally charge the individual. [42] Indian tribes are not only separate sovereigns but also are not bound by the limitations of the U.S. Constitution. Does the invocation of the right to counsel in tribal court bind the other sovereign? This issue was addressed by the Sixth Circuit of the U.S. Court of Appeals in United States v. Doherty. [43]

Doherty, a member of the Hannahville Indian Community Tribal Reservation in the Upper Peninsula of Michigan, appealed his conviction of two federal counts of knowingly engaging in sexual acts with a child. Prior to the initiation of any federal charges, federal agents had interrogated Doherty while he was incarcerated pending further tribal proceedings. Doherty waived his Fifth Amendment rights and voluntarily gave a signed statement to the federal agents. Doherty argued that the introduction of his confession into evidence in federal court violated his Sixth Amendment right to counsel because he had already been arraigned for a statutory rape misdemeanor tribal charge, arising from the same facts as the federal charges, and had requested an attorney at his own expense in accordance with the ICRA.

The Sixth Circuit held that the ICRA, not the Sixth Amendment, was the basis of Doherty's right to counsel in the tribal proceedings. The ICRA created a body of substantive rights for Indians molded in part on the Bill of Rights to protect Indians against excessive tribal authority. The ICRA, however, is not coextensive with the Sixth Amendment. The court stated that the existence of the attorney-client relationship between Doherty and his tribal court counsel did not arise from the Sixth Amendment. The court further advised that Doherty's invocation of the right to counsel in tribal court does not independently trigger the Sixth Amendment right to counsel because only the initiation of federal adversarial proceedings triggers Sixth Amendment protections. Prior to the initiation of federal proceedings Doherty had no Sixth Amendment right to counsel. The court held that Doherty's confession was properly admitted into evidence, not because federal agents were unconstrained by the Sixth Amendment, but because Do herty's Sixth Amendment right to counsel had not yet matured.

It should be stressed that state and federal officials owe Native Americans the protections defined in the Bill of Rights. Native Americans are citizens of the United States and the rule that tribal governments are not constrained by the limitations of the Bill of Rights and the Fourteenth Amendment "of course, does not relieve State and Federal governments of their obligations to individual Indians under these provisions." [44] However, if certain protections, such as the Sixth Amendment right to counsel, have not been triggered, then they are not applicable and can be disregarded until they are appropriately triggered and become applicable.

STATE SEARCH WARRANTS

In Kaul v. Stephan, [45] the U.S. Court of Appeals for the Tenth Circuit held that the state of Kansas had jurisdiction to execute search warrants on reservations within its boundaries. It was a proper exercise of the state's authority pursuant to a specific Congressional delegation of jurisdiction over crimes committed by or against Indians on Indian reservations in the state of Kansas. The U.S. Supreme Court has not addressed the issue whether a state, lacking such a Congressional delegation, has jurisdiction to issue a warrant for a search within Indian country. However, the Court has stated that "even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law." [46]

The Idaho Supreme Court used the Court's two-part analysis in reaching its decision in Idaho v. Mathews. [47] Mathews, a Nez Perce Indian, was accused of murdering his estranged wife in Lewiston, Idaho. Mathews was living within the Nez Perce Indian Reservation at the time of the murder. A Lewiston police officer applied for and received two state search warrants, one for the home of Mathews and the other for the home of a relative of Mathews, both located within the Nez Perce Indian Reservation. Mathews was later convicted of the murder and appealed the validity of the state warrants executed in Indian country.

The Idaho Supreme Court, using the Supreme Courts' two-prong test, first examined the question of whether the execution of a state search warrant within the Nez Perce Indian reservation unlawfully infringed on tribal sovereignty. The court found that tribal sovereignty was not infringed because there was no Nez Perce tribal code establishing a procedure regulating the execution of state search warrants in cases involving Indians who had committed crimes outside of the reservation. Consequently, the execution of state search warrants within the reservation did not infringe on the right of the Nez Perce Tribe to govern itself.

The court then turned to the second prong of the analysis, requiring a determination of whether the state action is preempted by federal law. The court found that there was no federal law regarding the execution of state search warrants on Indian reservations. Therefore, the court held, in the absence of an established tribal procedure, the state court's issuance and execution of a search warrant for a search within the Nez Perce Indian Reservation neither unlawfully undermines the tribe's self-governance nor conflicts with federal law. Mathew's motion to suppress was denied.

Although the U.S. Supreme Court has not decided this issue, it appears that states may execute state search warrants on Indian reservations, providing there are no tribal code procedures in place regarding the execution of state search warrants. If a tribe has established such a procedure, states should follow the procedure.

CONCLUSION

Indian tribal sovereignty has a significant impact on criminal jurisdiction and procedure, both in and out of Indian country. The impact is significant because there are three distinct sovereigns, state, federal, and tribal, interacting with one another in what is best described as a patchwork of criminal jurisdiction. Each sovereign enjoys exclusive, partial, or no jurisdiction, depending on the location of the offense, the particular crime alleged, and the ethnicity of the parties involved. To determine which sovereign or sovereigns have jurisdiction, officers working in Indian country should assess situations they may encounter by asking the following questions:

1) Did the crime occur on or off Indian country?

2) If on, does a federal statute such as Public Law 280 confer exclusive criminal jurisdiction to a state?

3) If not, is the victim Indian or non-Indian?

4) Is the suspect Indian or non-Indian?

5) Is the crime a misdemeanor or a felony?

6) Is there a tribal code provision regarding extradition or state warrant execution?

7) Has something occurred to trigger Constitutional rights of the accused?

Due to the difficulty of determining criminal jurisdiction and procedure in Indian country, each situation must be judged individually, and investigators are urged to consult their legal advisors. However, by asking the above questions officers can begin to determine criminal jurisdiction and procedure in Indian country.

Special Agent Bulzomi is a legal instructor at the FBI Academy.

Endnotes

(1.) 30 U.S. 1 (1831)

(2.) 231 U.S. 575 (1832).

(3.) U.S. Const. Art. III, Sec. 2.

(4.) Id. at 17.

(5.) Ibid 2 at 575.

(6.) Ibid 1 at 17.

(7.) See United States v. Kagama, 118 U.S. 375 (1886).

(8.) Lone Wolf v. Hitchcock, 187 U.S. 553 at 566 (1903).

(9.) Title 18 U.S.C.A. [ss] 1152.

(10.) Id.

(11.) 241 U.S. 602 (1916).

(12.) Title 18 U.S.C.A. 13.

(13.) Id.

(14.) 104 U.S. 621 (1881).

(15.) See also Draper v. United States, 164 U.S. 240 (1896).

(16.) Ex Parte Crow Dog, 109 U.S. 556 (1883).

(17.) Id at 572.

(18.) Title 18 U.S.C.A. [ss] 1153.

(19.) United States v. Henry, 432 F.2d 114 (9th Cir. 1970), modified 434 F.2d 1283, cert. denied 400 U.S. 1011 (1971).

(20.) 435 U.S. 191 (1978).

(21.) 110 S. Ct. 2053 (1990).

(22.) Title 25 U.S.C. [ss] 1301(2), (4).

(23.) Title 18 U.S.C.A. [ss] 1162.

(24.) 163 U.S. 196 (1896).

(25.) Title 25 U.S.C.A. 1301 et seq.

(26.) Id. (as amended in 1986).

(27.) U.S. Const. Amend. V.

(28.) Title 25 U.S.C. [ss] 1302 (3).

(29.) United States v. Lanza, 260 U.S. 377 (1922). (The Dual Sovereignty Doctrine arose Out of a prohibition era case where the state of Washington charged the defendants with manufacturing intoxicating liquor. After the state case was concluded, the U.S. Attorney brought charges.)

(30.) 435 U.S. 313 (1978).

(31.) Id. at 323.

(32.) See Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969), cert. denied, 398 U.S. 903 (1970). (The Fifth Amendment can be invoked if a link is established between the federal government and a tribe that would impair tribal sovereignty, such as a federal government imposed tribal court that is under some federal control.)

(33.) 156 F.3d 818 (8th Cir., 1998) reh'g granted and opinion vacated, 156 F.3d 818 on reh'g 165 F.3d 1209 (8th Cir. 1999) (en blanc) aff'd by an equally divided court 36 F.Supp.2d. 908 (Neb. D.C. 1997) cert. denied 120 S. Ct. 82 (1999).

(34.) 31A Am. Jur. 2d Extradition [ss] 1(1989).

(35.) U.S. Const. Art. IV, [ss] 2, cl. 2.

(36.) 413 F.2d 683 (9th Cir. 1969), cert. denied, 396 U.S. 1003 (1970).

(37.) 553 F.2d 1270 (N.M. 1976).

(38.) 643 F.2d 521 (8th Cir., 1981), cert. denied, 454 U.S. 892 (1981).

(39.) 462 N.W. 2d 463 (S.D. 1990).

(40.) Messiah v. United States, 377 U.S. 201(1964).

(41.) Hoffa v. United States, 385 U.S. 293 (1966). See also Texas v Cobb ----- S. Ct. ----- (2001).

(42.) United States v. Garey, 813 F.Supp. 1069 (U.S.D.C. Vermont 1993) aff'd by 19 F.3d 8 (2nd Cir. 1994). See also Texas v. Cobb ----- S. Ct. ----- (2001).

(43.) 126 F.3d 769 (1998).

(44.) Santa Clara Pueblo v. Martinez, 436 U.S. 49 at 56 (1978).

(45.) 83 F.3d 1208 (10th Cir., 1996).

(46.) Mescalero Apache Tribe v. Jones, 411 U.S. 145 at 148 (1973).

(47.) 986 P.2d 323 (1999).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.