Collapse to view only § 1301. Definitions
- § 1301. Definitions
- § 1302. Constitutional rights
- § 1302a. Bureau of Prisons tribal prisoner program
- § 1303. Habeas corpus
- § 1304. Tribal jurisdiction over covered crimes
- § 1305. Tribal jurisdiction in Alaska
§ 1301. Definitions
For purposes of this subchapter, the term—
(1) “Indian tribe” means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;
(2) “powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians;
(3) “Indian court” means any Indian tribal court or court of Indian offense; and
(4) “Indian” means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, if that person were to commit an offense listed in that section in Indian country to which that section applies.
(Pub. L. 90–284, title II, § 201, Apr. 11, 1968, 82 Stat. 77; Pub. L. 101–511, title VIII, § 8077(b), (c), Nov. 5, 1990, 104 Stat. 1892.)
§ 1302. Constitutional rights
(a) In generalNo Indian tribe in exercising powers of self-government shall—
(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
(3) subject any person for the same offense to be twice put in jeopardy;
(4) compel any person in any criminal case to be a witness against himself;
(5) take any private property for a public use without just compensation;
(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense (except as provided in subsection (b));
(7)
(A) require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;
(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;
(C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or
(D) impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
(9) pass any bill of attainder or ex post facto law; or
(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.
(b) Offenses subject to greater than 1-year imprisonment or a fine greater than $5,000A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both, if the defendant is a person accused of a criminal offense who—
(1) has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or
(2) is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.
(c) Rights of defendantsIn a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—
(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
(3) require that the judge presiding over the criminal proceeding—
(A) has sufficient legal training to preside over criminal proceedings; and
(B) is licensed to practice law by any jurisdiction in the United States;
(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.
(d) SentencesIn the case of a defendant sentenced in accordance with subsections (b) and (c), a tribal court may require the defendant—
(1) to serve the sentence—
(A) in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;
(B) in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) 1
1 See References in Text note below.
of the Tribal Law and Order Act of 2010;(C) in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or
(D) in an alternative rehabilitation center of an Indian tribe; or
(2) to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.
(e) Definition of offense
(f) Effect of section
(Pub. L. 90–284, title II, § 202, Apr. 11, 1968, 82 Stat. 77; Pub. L. 99–570, title IV, § 4217, Oct. 27, 1986, 100 Stat. 3207–146; Pub. L. 111–211, title II, § 234(a), July 29, 2010, 124 Stat. 2279.)
§ 1302a. Bureau of Prisons tribal prisoner program
(1) In general
(2) Conditions
(A) In general
(B) Limitations
(C) Custody conditions
(D) Cap
(3) Rescinding requests
(A) In general
(B) Return to tribal custody
(4) Reassessment
(Pub. L. 111–211, title II, § 234(c), July 29, 2010, 124 Stat. 2281; Pub. L. 117–103, div. W, title VIII, § 803, Mar. 15, 2022, 136 Stat. 898.)
§ 1303. Habeas corpus
The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.
(Pub. L. 90–284, title II, § 203, Apr. 11, 1968, 82 Stat. 78.)
§ 1304. Tribal jurisdiction over covered crimes
(a) DefinitionsIn this section:
(1) Assault of Tribal justice personnelThe term “assault of Tribal justice personnel” means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that involves the use, attempted use, or threatened use of physical force against an individual authorized to act for, or on behalf of, that Indian tribe or serving that Indian tribe during, or because of, the performance or duties of that individual in—
(A) preventing, detecting, investigating, making arrests relating to, making apprehensions for, or prosecuting a covered crime;
(B) adjudicating, participating in the adjudication of, or supporting the adjudication of a covered crime;
(C) detaining, providing supervision for, or providing services for persons charged with a covered crime; or
(D) incarcerating, supervising, providing treatment for, providing rehabilitation services for, or providing reentry services for persons convicted of a covered crime.
(2) ChildThe term “child” means a person who has not attained the lesser of—
(A) the age of 18; and
(B) except in the case of sexual abuse, the age specified by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs.
(3) Child violence
(4) Coercion; commercial sex act
(5) Covered crimeThe term “covered crime” means—
(A) assault of Tribal justice personnel;
(B) child violence;
(C) dating violence;
(D) domestic violence;
(E) obstruction of justice;
(F) sexual violence;
(G) sex trafficking;
(H) stalking; and
(I) a violation of a protection order.
(6) Dating violence
(7) Domestic violenceThe term “domestic violence” means any violation of the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that is committed by—
(A) a current or former spouse or intimate partner of the victim;
(B) a person with whom the victim shares a child in common;
(C) a person who is cohabitating with or who has cohabitated with the victim as a spouse or intimate partner; or
(D) a person similarly situated to a spouse of the victim under the domestic- or family-violence laws of the Indian tribe that has jurisdiction over the Indian country where the violation occurs.
(8) Indian country
(9) Obstruction of justice
(10) Participating tribe
(11) Protection orderThe term “protection order”—
(A) means any injunction, restraining order, or other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person; and
(B) includes any temporary or final order issued by a civil or criminal court, whether obtained by filing an independent action or as a pendent lite order in another proceeding, if the civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection.
(12) Sex trafficking
(13) Sexual violence
(14) Special Tribal criminal jurisdiction
(15) Spouse or intimate partner
(16) StalkingThe term “stalking” means engaging in a course of conduct directed at a specific person proscribed by the criminal law of the Indian tribe that has jurisdiction over the Indian country where the violation occurs that would cause a reasonable person—
(A) to fear for the person’s safety or the safety of others; or
(B) to suffer substantial emotional distress.
(17) Violation of a protection orderThe term “violation of a protection order” means an act that—
(A) occurs in the Indian country of a participating tribe; and
(B) violates a provision of a protection order that—
(i) prohibits or provides protection against violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person;
(ii) was issued against the defendant;
(iii) is enforceable by the participating tribe; and
(iv) is consistent with section 2265(b) of title 18.
(b) Nature of the criminal jurisdiction
(1) In general
(2) Concurrent jurisdiction
(3) ApplicabilityNothing in this section—
(A) creates or eliminates any Federal or State criminal jurisdiction over Indian country; or
(B) affects the authority of the United States or any State government that has been delegated authority by the United States to investigate and prosecute a criminal violation in Indian country.
(4) Exception if victim and defendant are both non-Indians
(A) In general
(B) Definition of victim
(c) Criminal conduct
(d) Rights of defendantsIn a criminal proceeding in which a participating tribe exercises special Tribal criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 1302(c) of this title;
(3) the right to a trial by an impartial jury that is drawn from sources that—
(A) reflect a fair cross section of the community; and
(B) do not systematically exclude any distinctive group in the community, including non-Indians; and
(4) all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special Tribal criminal jurisdiction over the defendant.
(e) Petitions to stay detention
(1) In general
(2) Grant of stayA court shall grant a stay described in paragraph (1) if the court—
(A) finds that there is a substantial likelihood that the habeas corpus petition will be granted; and
(B) after giving each alleged victim in the matter an opportunity to be heard, finds by clear and convincing evidence that under conditions imposed by the court, the petitioner is not likely to flee or pose a danger to any person or the community if released.
(f) Petitions for writs of habeas corpus
(1) In general
(2) RequirementAn application for a writ of habeas corpus on behalf of a person in custody pursuant to an order of a Tribal court shall not be granted unless —
(A) the applicant has exhausted the remedies available in the Tribal court system;
(B) there is an absence of an available Tribal corrective process; or
(C) circumstances exist that render the Tribal corrective process ineffective to protect the rights of the applicant.
(g) Notice; habeas corpus petitions
(h) Reimbursement and grants to Tribal governments
(1) Reimbursement
(A) In general
(B) Eligible expensesEligible expenses for reimbursement under subparagraph (A) shall include expenses and costs incurred in, relating to, or associated with—
(i) investigating, making arrests relating to, making apprehensions for, or prosecuting covered crimes (including costs involving the purchasing, collecting, and processing of sexual assault forensic materials);
(ii) detaining, providing supervision of, or providing services for persons charged with covered crimes (including costs associated with providing health care);
(iii) providing indigent defense services for 1 or more persons charged with 1 or more covered crimes; and
(iv) incarcerating, supervising, or providing treatment, rehabilitation, or reentry services for 1 or more persons charged with 1 or more covered crimes.
(C) Procedure
(i) In general
(ii) Maximum reimbursementThe rules promulgated by the Attorney General under clause (i)—(I) shall set a maximum allowable reimbursement to any Tribal government (or an authorized designee of any Tribal government) in a 1-year period; and(II) may allow the Attorney General—(aa) to establish conditions under which a Tribal government (or an authorized designee of a Tribal government) may seek a waiver to the maximum allowable reimbursement requirement established under subclause (I); and(bb) to waive the maximum allowable reimbursement requirements established under subclause (I) for a Tribal government (or an authorized designee of a Tribal government) if the conditions established by the Attorney General under item (aa) are met by that Tribal government (or authorized designee).
(iii) Timeliness of reimbursementsTo the maximum extent practicable, the Attorney General shall—(I) not later than 90 days after the date on which the Attorney General receives a qualifying reimbursement request from a Tribal government (or an authorized designee of a Tribal government)—(aa) reimburse the Tribal government (or authorized designee); or(bb) notify the Tribal government (or authorized designee) of the reason by which the Attorney General was unable to issue the reimbursement; and(II) not later than 30 days after the date on which a Tribal government (or an authorized designee of a Tribal government) reaches the annual maximum allowable reimbursement for the Tribal government (or an authorized designee) established by the Attorney General under clause (ii)(I), notify the Tribal government (or authorized designee) that the Tribal government has reached its annual maximum allowable reimbursement.
(D) Eligibility for participating tribes in Alaska
(2) GrantsThe Attorney General may award grants to Tribal governments (or authorized designees of Tribal governments), including a Tribal government (or an authorized designee of a Tribal government) of an Indian tribe designated as a participating Tribe under subtitle B of title VIII of the Violence Against Women Act Reauthorization Act of 2022—
(A) to strengthen Tribal criminal justice systems to assist Indian tribes in exercising special Tribal criminal jurisdiction, including for—
(i) law enforcement (including the capacity of law enforcement, court personnel, or other non-law enforcement entities that have no Federal or State arrest authority agencies but have been designated by an Indian tribe as responsible for maintaining public safety within the territorial jurisdiction of the Indian tribe, to enter information into and obtain information from national crime information databases);
(ii) prosecution;
(iii) trial and appellate courts (including facilities maintenance, renovation, and rehabilitation);
(iv) supervision systems;
(v) detention and corrections (including facilities maintenance, renovation, and rehabilitation);
(vi) treatment, rehabilitation, and reentry programs and services;
(vii) culturally appropriate services and assistance for victims and their families; and
(viii) criminal codes and rules of criminal procedure, appellate procedure, and evidence;
(B) to provide indigent criminal defendants with licensed defense counsel, at no cost to the defendant, in criminal proceedings in which a participating tribe prosecutes covered crimes;
(C) to ensure that, in criminal proceedings in which a participating tribe exercises special Tribal criminal jurisdiction, jurors are summoned, selected, and instructed in a manner consistent with all applicable requirements; and
(D) to accord victims of covered crimes rights that are similar to the rights of a crime victim described in section 3771(a) of title 18 consistent with Tribal law and custom.
(i) Supplement, not supplant
(j) Authorization of appropriations
(1) In generalThere is authorized to be appropriated $25,000,000 for each of fiscal years 2023 through 2027—
(A) to carry out subsection (h); and
(B) to provide training, technical assistance, data collection, and evaluation of the criminal justice systems of participating tribes.
(2) Limitations
(Pub. L. 90–284, title II, § 204, as added Pub. L. 113–4, title IX, § 904, Mar. 7, 2013, 127 Stat. 120; amended Pub. L. 117–103, div. W, title VIII, § 804, Mar. 15, 2022, 136 Stat. 898.)
§ 1305. Tribal jurisdiction in Alaska
(a) In general
(b) Tribal civil jurisdiction to enforce protection orders
(1) In generalA court of any Indian tribe in the State shall have full civil jurisdiction to issue and enforce protection orders involving any person in matters—
(A) arising within the Village of the Indian tribe; or
(B) otherwise within the authority of the Indian tribe.
(2) InclusionsThe full civil jurisdiction to issue and enforce protection orders under paragraph (1) includes the authority to enforce protection orders through—
(A) civil contempt proceedings;
(B) exclusion of violators from the Village of the Indian tribe; and
(C) other appropriate mechanisms.
(c) Special Tribal criminal jurisdiction
(1) In general
(2) Concurrent jurisdiction
(3) Exception if victim and defendant are both non-Indians
(A) In general
(B) Definition of victim
(d) Pilot program for special Tribal criminal jurisdiction over persons who are not Indians
(1) Establishment
(2) Procedure
(3) Designation of participating tribes
(A) In generalThe Attorney General, in consultation with the Secretary of the Interior and affected Indian tribes, shall establish a process to designate Indian tribes to participate in the pilot program, which process shall—
(i) require that preference shall be given to Indian tribes occupying Villages—(I) the populations of which are predominantly Indian; and(II) that lack a permanent State law enforcement physical presence;
(ii) require that for each Indian tribe requesting to be designated as a participating Tribe, the Attorney General makes a determination that the criminal justice system of the Indian tribe has adequate safeguards in place to protect defendants’ rights, consistent with section 204(d) of Public Law 90–284 (25 U.S.C. 1304(d)) (commonly known as the “Indian Civil Rights Act of 1968”); and
(iii) be subject to such other criteria as the Attorney General considers to be appropriate to achieve the purposes of this subtitle.
(B) Designation
(4) Intertribal participation
(A) In general2 or more participating Tribes (or the Tribal organization (as defined in section 5304 of this title) of the participating Tribe, if the Tribal organization is exercising delegated authority from the participating Tribe)—
(i) may elect to participate jointly in the pilot program by providing shared resources to carry out the purposes of the pilot program; and
(ii) on making an election pursuant to clause (i), shall be considered to be a single participating Tribe for purposes of the maximum number of participating Tribes under paragraphs (1) and (5).
(B) Additional participating tribes
(i) In general
(ii) Application
(5) Maximum number of participating tribes
(A) In general
(B) Exception
(6) Description of jurisdiction
(7) Rights of defendants
(e) SentencesIn a criminal proceeding in which an Indian court of a participating Tribe, in exercising special Tribal criminal jurisdiction with respect to a covered crime, imposes a sentence of imprisonment of more than 1 year on a defendant pursuant to section 202(b) of Public Law 90–284 (25 U.S.C. 1302(b)) (commonly known as the “Indian Civil Rights Act of 1968”), the Indian court may require the defendant—
(1) to serve a sentence—
(A) in a Tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines set by the Bureau of Indian Affairs;
(B) at the expense of the United States, in the nearest appropriate Federal facility pursuant to the Bureau of Prisons Tribal Prisoner Program established under section 1302a(c)(1) of this title; or
(C) at the expense of the participating Tribe and, subject to section 204(f)(1) of Public Law 90–284 (25 U.S.C. 1304(f)(1)) (commonly known as the “Indian Civil Rights Act of 1968”), reimbursable by the Attorney General, in a detention or correctional center approved by the State or a local government of the State pursuant to a memorandum of agreement between the participating Tribe and the State or local government of the State; or
(2) to serve another alternative form of punishment, as determined by the Indian court pursuant to Tribal law.
(f) Memoranda of agreementThe Attorney General and the Secretary of the Interior may enter into such memoranda of agreement with participating Tribes and the State as are necessary and appropriate—
(1) to coordinate respective law enforcement activities;
(2) to share equipment and other resources;
(3) to establish cross-deputization arrangements;
(4) to coordinate appropriate training activities; and
(5) to address any other matters that will facilitate the successful implementation of the pilot program, including intergovernmental agreements regarding—
(A) the incarceration of convicted persons; and
(B) cooperation in the investigation and prosecution of crimes.
(g) Alaska Tribal Public Safety Advisory Committee
(1) Establishment
(2) MembershipThe Committee shall consist of 1 or more representatives from—
(A) participating Tribes and Indian tribes aspiring to participate in the pilot program;
(B) Federal, Tribal, State, and local law enforcement; and
(C) Tribal nonprofit organizations providing victim services.
(3) DutiesThe Committee shall focus on—
(A) improving the justice systems, crime prevention, and victim services of Indian tribes and the State; and
(B) increasing coordination and communication among Federal, Tribal, State, and local law enforcement agencies.
(4) Travel expenses
(5) Nonapplicability of FACA
(6) Authorization of appropriations
(h) Report to Congress
(i) ApplicabilityNothing in this subtitle—
(1) limits, alters, expands, or diminishes the civil or criminal jurisdiction of the United States, the State, any subdivision of the State, or any Indian tribe in the State;
(2) creates or eliminates any Federal or State criminal jurisdiction over a Village; or
(3) affects the authority of the United States or any authority delegated by the United States to the State to investigate and prosecute a criminal violation in a Village.
(Pub. L. 117–103, div. W, title VIII, § 813, Mar. 15, 2022, 136 Stat. 906.)