What Happens When Tribal Criminal Laws And State Criminal Laws Clash?
Right on the heels of Columbus Day, advocates have started the mantra of eliminating a day of recognition for a “Discoverer of the New World” who seemingly brought war and illness to the indigenous people of the American countryside. America’s history has been sorted, and there are some events that might not have been fair when you look back at them. While trying to right the ills of the past, many tribes still exist around the nation which have been granted the right to have their own rules and laws to deal with crimes committed within their community, outside the jurisdiction of federal or state laws.
Not all tribes have been granted immunity from state law, but the Menominee Tribe of Wisconsin is one of the eleven that are federally recognized as having the right to set and operate their own tribal criminal laws, guidelines and standards. The tribe insists that it is a mini-state within a state, and therefore has the right to determine their state laws and statutes as they see fit.
The Menominee Tribe of Wisconsin was granted the Public Law 280 or PL-280, enacted by the federal government in 1953. The law changed the jurisdiction that the federal government had over Indian reservations nationwide and allowed the reservations to police and govern themselves, and create their own criminal laws for the Tribe members without governmental intervention.
For most communities that meant that the US Department of Justice was no longer able to exert force on tribes and criminal prosecution, but the end result was that it expanded the rights that a state could exert onto Indian reservations. While the intent of the law was to allow tribes to operate without interference and to maintain their reservations, setting their own laws and rules, that isn’t how things worked out.
Although all states are required to follow PL-280, the regulation of Indian reservations varies from one state to the next. In places like Mississippi — where the Menominee Indians have almost 250 million acres of forest — PL-280 has not been applied, and the tribe is subject to the laws of the state for criminal prosecution.
The Menominee of Wisconsin has their own court system, their own set of laws, parole officers, prosecutors, jails and independent judges who handle criminal offenses on tribal land. So what happens if someone is living on the reservation but is not a tribe member? How does the state and tribunal law deal with someone who commits a crime on tribal land but is not Native American or a member of the tribe itself?
According to a criminal lawyer in queens NY, If there is a criminal incident on tribal land involving someone who is not Native American, then the tribe defers to the state and hands the case over for prosecution outside of the reservation. According to PL-280, the criminal court system on the reservation applies only to members, and anyone outside of it is subject to the laws of the state.
So why is the distinction important?
With proposed development around the Menominee Tribe like the Back Forty Project, which is spearheaded by the Canadian-based company Aquila Resources, the Wisconsin tribe fears that their sacred land will be disturbed and that there will be environmental consequences.
However, they will have no jurisdiction over what is done because those working on the site will not be Native Americans, and therefore won’t be under their jurisdiction. The tribe fears that could pose a problem when criminal acts are perpetrated. Tribunal members worry that they will slowly lose control and end up like other tribes around the nation who have lost the ability to self-govern.
Since only one of the eleven federally-recognized Native American tribes in the US has been able to maintain their autonomy and to follow the law of PL-280, the Wisconsin Menominee members are right to suspect how much control they will be able to maintain as modernization breaches their borders. If something should happen, who will win — the state or the tribe — is a question that cannot be predicted.
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