Indian Tribal Sovereignty.Criminal Jurisdiction and Procedure
The relationship between Indian tribes INDIAN TRIBE. A separate and distinct community or body of the aboriginal Indian race of men found in the United States.
2. Such a tribe, situated within the boundaries of a state, and exercising the powers of government and, sovereignty, under the national and the U.S. government has changed dramatically over the last 200 years. During the British colonial period Colonial Period may generally refer to any period in a country's history when it was subject to administration by a colonial power.
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 With the creation of the U.S. Constitution and a national government, political and legal policy-makers had to determine how to deal with Native American tribes that resided on lands granted to them by treaties. By the 1820s, U.S. : Cherokee Nation v. Georgia Cherokee Nation v. Georgia,
On December 20, 1828, Georgia, fearful that the United States would be unable to effect the removal of the Cherokee  and , was a United States Supreme Court decision. BackgroundWorcester v. Georgia Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court held that Cherokee Native Americans were entitled to federal protection from the actions of state governments which would impinge on the tribe's sovereignty. .  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.  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 A plenary power or plenary authority is the complete power of a governing body. The concept is also used in legal circles to define complete control in other circumstances, as in plenary authority over public funds, as opposed to limited authority over funds that are 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 ap·por·tion
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" criminal jurisdiction on Indian lands among federal, state, and Indian governments.
The Federal Enclaves A federal enclave in United States law refers to a geographic territory and its associated legislative and judicial jurisdiction that is created out of a state under of the U.S. Constitution:
The Congress shall have Power ... Act
In 1817, Congress passed The Federal Enclaves Act, 9 asserting federal criminal jurisdiction over non-Indians for crimes they commit in Indian country Indian country or Indian Country
1. Indian Territory.
2. Federal reservation lands under Native American tribal jurisdiction. and over Indians for some crimes they commit against non-Indians. Under the act, "the general laws of the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. 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 unpunished
without suffering or resulting in a penalty: the guilty must not go unpunished, such crimes should not remain unpunished
Adj. 1. 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 as·sim·i·la·tive also as·sim·i·la·to·ry
Marked by or causing assimilation.
Adj. 1. assimilative - capable of mentally absorbing ; "assimilative processes", "assimilative capacity of the human mind" Crimes Act.  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. 
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.  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 Enabling Act
Law passed by the German Reichstag in 1933 that enabled Adolf Hitler to assume dictatorial powers. Deputies from the Nazi Party, the German National People's Party, and the Center Party voted in favor of the act, which “enabled” Hitler's government 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. 
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 Crow Dog (b. Kargi Sunka) (?1835–?1910) Brûle Sioux chief; born in the northern Great Plains. His conviction for the murder of Chief Spotted Tail was set aside by a landmark U.S. Supreme Court ruling, which stated that the U.S. shot and killed Chief Spotted Tail Spotted Tail (b. Sinte Gleska) (?1833–81) Brûlé Sioux leader; born along the White River in present-day South Dakota or near present-day Laramie, Wyo. A signer of the Fort Laramie Treaty of 1868—in which the U.S. . Both individuals were Brule Sioux, and Brule law required that Crow Dog make reparations reparations, payments or other compensation offered as an indemnity for loss or damage. Although the term is used to cover payments made to Holocaust survivors and to Japanese Americans interned during World War II in so-called relocation camps (and used as well to 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 Federal intervention (Spanish: Intervención federal) is an attribution of the federal government of Argentina, by which it takes control of a province in certain extreme cases. Intervention is declared by the President with the assent of the National Congress. 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.  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."  The public demanded act ion, causing Congress to enact the Major Crimes Act.
The Major Crimes Act  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 larceny, in law, the unlawful taking and carrying away of the property of another, with intent to deprive the owner of its use or to appropriate it to the use of the perpetrator or of someone else. . 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 Done with an intent to commit a serious crime or a felony; done with an evil heart or purpose; malicious; wicked; villainous.
An aggravated assault, such as an assault with an intent to murder, is a felonious assault. sexual molestation molestation n. the crime of sexual acts with children up to the age of 18, including touching of private parts, exposure of genitalia, taking of pornographic pictures, rape, inducement of sexual acts with the molester or with other children, and variations of these 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. 
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 This term is often used in law as equivalent to mentioned specifically, designated, or expressly named or granted; as in speaking of enumerated governmental powers, items of property, or articles in a tariff schedule. 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 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians.
The case was decided on March 6, 1978, with a 6-2 majority. .  In this case, tribal police arrested Oliphant, a non-Indian living on a reservation in Washington State. Oliphant was charged with resisting arrest resisting arrest n. the crime of using physical force (no matter how slight in the eyes of most law enforcement officers) to prevent arrest, handcuffing and/or taking the accused to jail. 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 In Duro v. Reina, 495 U.S. 676 (1990), the U.S. Supreme Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations. ,  the Supreme Court defined the term "Indian" for purposes of tribal criminal jurisdiction. Tribal police arrested Duro for discharging a firearm firearm, device consisting essentially of a straight tube to propel shot, shell, or bullets by the explosion of gunpowder. Although the Chinese discovered gunpowder as early as the 9th cent., they did not develop firearms until the mid-14th cent. 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 Gila River
River, New Mexico and Arizona, U.S. Rising in southwestern New Mexico in the Elk Mountains, near the Gila Cliff Dwellings National Monument, it flows 630 mi (1,015 km) west over desert land to the Colorado River at Yuma, Ariz. 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 Mission Indians, Native Americans of S and central California; so called because they were under the jurisdiction of some 21 Spanish missions that were established between 1769 and 1823. 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,  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  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 state·hood
The status of being a state, especially of the United States, rather than being a territory or dependency. (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.
In 1896, the Supreme Court decided Talton v. Mayes The 1896 United States Supreme Court case Talton v. Mayes, 163 U.S. 376 decided that the individual rights protections that limited federal, and later, state governments, do not apply to tribal government, reaffirmed earlier decisions such as the 1831 Cherokee Nation v. .  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  (IRCA IRCA Immigration Reform and Control Act of 1986
IRCA International Register of Certified Auditors
IRCA International Radio Club of America
IRCA Integrated Readiness Capability Assessment ).
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 (Internet Content Rating Association, www.icra.org) An organization dating back to 1994 that was created to protect children from potentially harmful online content and to protect free speech on the Internet. ICRA did not rate Web sites or label the content. 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.  The question remains to what effect, if any, the ICRA has upon states or the federal government.
Double Jeopardy double jeopardy: see jeopardy.
In law, the prosecution of a person for an offense for which he or she already has been prosecuted. In U.S.
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 The phrase within the Fifth Amendment to the U.S. Constitution, commonly known as the Double Jeopardy Clause, that provides, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb," pursuant to which there can be no ."  A similar provision is found in the Indian Civil Rights Act.  Under the Dual Sovereignty Doctrine,  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,  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 disorderly conduct
Conduct likely to lead to a disturbance of the public peace or that offends public decency. It has been held to include the use of obscene language in public, fighting in a public place, blocking public ways, and making threats. and contributing to the delinquency of a minor Any action by an adult that allows or encourages illegal behavior by a person under the age of 18, or that places children in situations that expose them to illegal behavior. Contributing to the delinquency of a minor can be as simple as keeping a child home from school and thus, . He was then charged in federal court with statutory rape Sexual intercourse by an adult with a person below a statutorily designated age.
The criminal offense of statutory rape is committed when an adult sexually penetrates a person who, under the law, is incapable of consenting to sex. 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...." 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.  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,  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 (ĕkstrədĭsh`ən), delivery of a person, suspected or convicted of a crime, by the state where he has taken refuge to the state that asserts jurisdiction over him.
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 Territorial jurisdiction in United States law refers to a court's power over events and persons within the bounds of a particular geographic territory. If a court does not have territorial jurisdiction over the events or persons within it, then the court cannot bind the defendant 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 ex·tra·dite
v. ex·tra·dit·ed, ex·tra·dit·ing, ex·tra·dites
1. To give up or deliver (a fugitive, for example) to the legal jurisdiction of another government or authority.
2. exists. Extradition between states is governed by the Extradition Clause The Extradition clause or Interstate renditon clause refers to a provision in Article IV, , , provides for the extradition of a criminal back to the state where he or she has committed a crime. 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 New Mexico, state in the SW United States. At its northwestern corner are the so-called Four Corners, where Colorado, New Mexico, Arizona, and Utah meet at right angles; New Mexico is also bordered by Oklahoma (NE), Texas (E, S), and Mexico (S). , 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 The New Mexico Supreme Court is the highest court in the state of New Mexico in the United States. External Link
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 The Turtle Mountain Band of Chippewa Indians is a Native American tribe of Ojibwa and Metis peoples, based on the Turtle Mountain Indian Reservation in Belcourt, North Dakota. The tribe has 30,000 enrolled members. living and working on the reservation at the time of his arrest. The Turtle Mountain Turtle Mountain may refer to:
judicial writ, writ - (law) a legal document issued by a court or judicial officer 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 To deprive or take away.
Divest is usually used in reference to the relinquishment of authority, power, property, or title. If, for example, an individual is disinherited, he or she is divested of the right to inherit money. the state courts of jurisdiction or grant habeas corpus habeas corpus (hā`bēəs kôr`pəs) [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a . 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 Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1
Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens 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 e·gre·gious
Conspicuously bad or offensive. See Synonyms at flagrant.
[From Latin 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,  the Supreme Court of South Dakota South Dakota (dəkō`tə), state in the N central United States. It is bordered by North Dakota (N), Minnesota and Iowa (E), Nebraska (S), and Wyoming and Montana (W). 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 ad·ver·sar·i·al
Relating to or characteristic of an adversary; involving antagonistic elements: "the chasm between management and labor in this country, an often needlessly adversarial . . . judicial proceedings judicial proceedings n. any action by a judge re: trials, hearings, petitions, or other matters formally before the court. (See: judicial) have been initiated.  This right to counsel is crime specific--meaning that it applies only to the crime to which the individual has been formally charged.  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.  Indian tribes are not only separate sovereigns but also are not bound by the limitations of the U.S. Constitution. Does the invocation invocation,
n a prayer requesting and inviting the presence of God. 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. 
Doherty, a member of the Hannahville Indian Community The Hannahville Indian Community is a federally recognized Potawatomi Indian tribe residing in Michigan's Upper Peninsula, approximately 15 miles west of Escanaba. The reservation lies mostly in eastern Menominee County, but a small section is located in adjacent southwestern Delta Tribal Reservation in the Upper Peninsula of Michigan The Upper Peninsula of Michigan is the northern of the two major land masses that comprise the U.S. state of Michigan. It is commonly referred to simply as the Upper Peninsula, the U.P., or Upper Michigan, and more casually as the land "above the Bridge". , 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 incarcerated /in·car·cer·at·ed/ (in-kahr´ser-at?ed) imprisoned; constricted; subjected to incarceration.
Confined or trapped, as a hernia. 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 "Substantive rights," are basic human rights possessed by people in an ordered society and includes rights granted by natural law as well as the substantive law. Substantive rights involve a right to the substance of being human (life, liberty, happiness), rather than a right to a for Indians molded in part on the Bill of Rights to protect Indians against excessive tribal authority. The ICRA, however, is not coextensive co·ex·ten·sive
Having the same limits, boundaries, or scope.
coex·ten 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."  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,  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." 
The Idaho Supreme Court The Idaho Supreme Court is the state supreme court of the state of Idaho. The supreme court is composed of the chief justice and four associate justices.
The decisions of the Idaho Supreme Court are binding on all other Idaho state courts, and the only other court that may used the Court's two-part analysis in reaching its decision in Idaho v. Mathews.  Mathews, a Nez Perce Indian, was accused of murdering his estranged es·trange
tr.v. es·tranged, es·trang·ing, es·trang·es
1. To make hostile, unsympathetic, or indifferent; alienate.
2. To remove from an accustomed place or set of associations. wife in Lewiston, Idaho Lewiston is the county seat of and largest city in Nez Perce County, Idaho, United States. It is the second largest city in the Idaho Panhandle region behind Coeur d'Alene. . 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 motion to suppress n. a motion (usually on behalf of a criminal defendant) to disallow certain evidence in an up-coming trial. Example: a confession which the defendant alleges was signed while he was drunk or without the reading of his Miranda rights. 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.
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 The FBI Academy, located in Quantico, Virginia, is the training grounds for new Special Agents of the United States Federal Bureau of Investigation. It was first opened for use in 1972 on 385 acres (1.6 km²) of woodland. .
(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 United States v. Kagama 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) was a United States Supreme Court ruling that upheld the Constitutionality of the Major Crimes Act of 1885. , 118 U.S. 375 (1886).
(8.) Lone Wolf Lone Wolf, d. 1879, Kiowa Chief. He led some Kiowas on raids in 1874 after his son had been killed by whites, but he was defeated and with a number of followers was deported to Florida, where he remained in military confinement for three years; he died one year after v. Hitchcock, 187 U.S. 553 at 566 (1903).
(9.) Title 18 U.S.C.A. [ss] 1152.
(11.) 241 U.S. 602 (1916).
(12.) Title 18 U.S.C.A. 13.
(14.) 104 U.S. 621 (1881).
(15.) See also Draper v. United States, 164 U.S. 240 (1896).
(16.) Ex Parte [Latin, On one side only.] Done by, for, or on the application of one party alone.
An ex parte judicial proceeding is conducted for the benefit of only one party. 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 et seq. (et seek) n. abbreviation for the Latin phrase et sequentes meaning "and the following." It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated, as in "the rules of the road are found in Vehicle Code .
(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 in·tox·i·cate
v. in·tox·i·cat·ed, in·tox·i·cat·ing, in·tox·i·cates
1. To stupefy or excite by the action of a chemical substance such as alcohol.
2. 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 Santa Clara, city, Cuba
Santa Clara (sän`tä klä`rä), city (1994 est. pop. 217,000), capital of Villa Clara prov., central Cuba. 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.