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Speak Up! - View Question #294 |
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Question: What is the decision that says Indian res. law prevails over U.S. law if on the reservation.
Answer: There is not any one case that says this, but a whole series of cases dating back to 1800's which state that each Indian Tribe, recognized by the federal government through treaty, retains some of its sovereignty seperate and apart from the federal government. The state where the reservation is, also has no power over what goes on, on the reservation. The tribes are in some ways equal to the State. Each tribe has its own Constitution, which governs the tribe. The US Constitution does not apply to the tribes. However, there are a few federal laws that directly apply to and somewhat limit each tribe - one of these being the Indian Civil Rights Act (25 U.S.C. 1301 et seq).
There are also laws regarding criminal jurisdiction in Indian Country; The Indian County Crimes Act, 18 U.S.C. 1152; The Major Crimes Act, 18 U.S.C. 1153; The Assimilative Crimes Act, 18 U.S.C. 13. Basically, offenses committed by an Indian, against an Indian is within the jurisdiction of the tribe, unless it is a major felony, then the federal court also has jurisdiction. If it is a crime committed by an Indian and there is no victim, the tribe has sole jurisdiction. If the crime is committed by a non-Indian, against an Indian, the federal court has sole juridiction. If it is a crime committed by an non-indian, and there is no victim, the state has jurisdiction over the offense. The Indian tribes have only been granted to have criminal jurisdiction over other Indians, and not over non-Indians.
In general each tribe governs itself and makes its own laws, and the federal government cannot interfer except on a very limited basis. However, due to treaties that were signed with the various tribes, and then because some of those treaties were broken, the federal government has a certain duty to assist the tribe in some areas. All Indians or Native American's are United States citizens as well as citizens of their own tribes, and are protected by the laws of both nations, however, most US laws don't apply on the reservation, unless Congress has specifically made it apply to the reservation.
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