“Indians, in a Jurisdictional Sense”: Tribal Citizenship and Other Forms of Non-Indian Consent to Tribal Criminal Jurisdiction

Authors

Paul Spruhan, University of New Mexico - School of LawFollow

Document Type

Article

Publication Date

Fall 2012

Abstract

Can tribes exert criminal jurisdiction over non- Indians who consent, by whatever means, to adhere to tribal laws? Has federal Indian law, and tribes’ reaction to it, changed the universe of tribal jurisdiction so significantly that non-Indians can truly never be subject to tribal criminal law? This article explores the concept of consent as a still viable theory of tribal criminal jurisdiction. I first examine some historical examples of non-Indian consent through adoption or naturalization under tribal law, and reactions to such consent by federal officials. I then discuss modern examples of tribal law theories of consent, primarily through recent statutory law and opinions of the Navajo Nation. Finally, I suggest different forms of consent tribes might consider, and their relative potential success in surviving federal scrutiny. Ultimately, I conclude that the grant of tribal citizenship to non-Indians has the greatest likelihood of establishing consent. However, I also conclude that non-Indians should consent to tribal criminal jurisdiction to foster true tribal sovereignty.

Publication Title

American Indian Law Journal

Volume

1

Issue

1

First Page

79

Last Page

98

Keywords

Tribal Criminal Jurisdiction, Non-Indian Consent to Tribal Criminal Jurisdiction, Tribal Criminal Law, Non-Indian Tribal Citizenship, Tribal Law Theories of Consent

Recommended Citation

“Indians, in a Jurisdictional Sense”: Tribal Citizenship and Other Forms of Non-Indian Consent to Tribal Criminal Jurisdiction, 1 Am. Indian L. J. 79 (2012).