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Tribal Criminal Jurisdiction Beyond Citizenship and Blood Addie C American Indian Law Review Volume 39 | Number 2 2016 Tribal Criminal Jurisdiction Beyond Citizenship and Blood Addie C. Rolnick University of Nevada, Las Vegas Follow this and additional works at: http://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Addie C. Rolnick, Tribal Criminal Jurisdiction Beyond Citizenship and Blood, 39 Am. IndIan L. Rev. 337 (2015), http://digitalcommons.law.ou.edu/ailr/vol39/iss2/1 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized administrator of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. Tribal Criminal Jurisdiction Beyond Citizenship and Blood Cover Page Footnote Associate Professor, Williams S. Boyd School of Law, University of Nevada, Las Vegas. Versions of this article were presented at the University of Colorado, Boulder; the University of New Mexico; the University of Nevada, Las Vegas; the 2013 UCLA Indian Law Scholars Workshop; UCLA’s Spring 2013 Advanced Critical Race Theory Seminar; and the 2012 Rocky Mountain Junior Scholars Workshop. The uthora thanks Carole Goldberg, Bob Clinton, Paul Spruhan, Reid Chambers, Angela Riley, Kristen Carpenter, Sonya Katyal, Alex Skibine, Matthew Fletcher, Bill Wood, Kim Pearson, Neelum Arya, Patrick Naranjo, Sora Han, Ann Tweedy, Bob Anderson, Hiroshi Motomura, Riyaz Kanji, John Dossett, Gene Fidell, Marian Naranjo, Frank Demolli, Roger Naranjo, Madeline Soboleff-Levy, and Adam Bailey for their comments and ideas; Matthew Wright, Wade Beavers, and the Wiener-Rogers Law Library for invaluable research assistance; the Boyd School of Law for research support; and the board and staff of the American Indian Law Review for editorial assistance. This article is available in American Indian Law Review: http://digitalcommons.law.ou.edu/ailr/vol39/iss2/1 TRIBAL CRIMINAL JURISDICTION BEYOND CITIZENSHIP AND BLOOD Addie C. Rolnick* Table of Contents Introduction ............................................................................................... 338 I. A Patchwork of Rules ............................................................................ 348 A. Jurisdiction Ends at the “Indian” ..................................................... 352 B. Jurisdiction Extends to “Nonmember Indians” ................................ 360 1. Duro v. Reina ................................................................................ 361 2. The “Duro Fix” ............................................................................. 364 C. Who Is an Indian? ............................................................................ 369 1. Challenges to the Duro Fix ........................................................... 372 2. Federal Court Review of Tribal Jurisdiction over Unenrolled People ............................................................................................... 376 3. Federal Jurisdiction Cases ............................................................ 379 D. Jurisdiction Extends to Non-Indian Domestic Abusers with Ties to the Tribe ............................................................................................ 385 II. The Community Recognition Standard ................................................ 389 A. Tribal Law Approaches to Jurisdiction ............................................ 391 B. Community Recognition in Tribal Statutory and Common Law ..... 398 C. Community Recognition as a Model Tribal Standard ...................... 403 D. Community Recognition as a Federal Standard ............................... 408 E. Community Recognition and Non-Indians ....................................... 422 III. Community Recognition Versus Citizenship ...................................... 427 A. A Critique of the Citizenship Standard ............................................ 428 * Associate Professor, Williams S. Boyd School of Law, University of Nevada, Las Vegas. Versions of this article were presented at the University of Colorado, Boulder; the University of New Mexico; the University of Nevada, Las Vegas; the 2013 UCLA Indian Law Scholars Workshop; UCLA’s Spring 2013 Advanced Critical Race Theory Seminar; and the 2012 Rocky Mountain Junior Scholars Workshop. The author thanks Carole Goldberg, Bob Clinton, Paul Spruhan, Reid Chambers, Angela Riley, Kristen Carpenter, Sonya Katyal, Alex Skibine, Matthew Fletcher, Bill Wood, Kim Pearson, Neelum Arya, Patrick Naranjo, Sora Han, Ann Tweedy, Bob Anderson, Hiroshi Motomura, Riyaz Kanji, John Dossett, Gene Fidell, Marian Naranjo, Frank Demolli, Roger Naranjo, Madeline Soboleff-Levy, and Adam Bailey for their comments and ideas; Matthew Wright, Wade Beavers, and the Wiener-Rogers Law Library for invaluable research assistance; the Boyd School of Law for research support; and the board and staff of the American Indian Law Review for editorial assistance. 337 Published by University of Oklahoma College of Law Digital Commons, 2015 338 AMERICAN INDIAN LAW REVIEW [Vol. 39 1. A Complicated and Contested Category ....................................... 428 2. Indianness and Equal Protection ................................................... 434 3. Consent and Shrinking Tribal Power ............................................ 438 B. Subjects Without Rights ................................................................... 441 C. Strangers Enrolled in Other Tribes: Respecting Sovereignty by Narrowing Jurisdiction? ........................................................................ 445 Conclusion ................................................................................................. 447 Introduction American Indian tribes, unlike other sovereigns, have a uniquely limited ability to enforce their criminal laws. Criminal jurisdiction is one of the most important incidents of sovereignty.1 Criminal laws are a primary means through which a society protects people and goods, expresses norms and values, and holds wrongdoers accountable. A crime, although it usually involves a specific victim, is an offense against the laws of the sovereign; this is why the state, not the victim, is the complaining party in a criminal case. Sovereigns are generally understood to have jurisdiction over anyone who commits a crime within that sovereign’s territory,2 regardless of 1. See, e.g., ALEJANDRO CHEHTMAN, THE PHILOSOPHICAL FOUNDATIONS OF EXTRATERRITORIAL PUNISHMENT 56 (2010) (“The territorial scope of a state’s criminal law is commonly regarded as a manifestation of its sovereignty.”); Markus D. Dubber, Criminal Jurisdiction and Conceptions of Penality in Comparative Perspective, 63 U. TORONTO L.J. 247, 263 (2013) (“Criminal jurisdiction is just there, unquestioned, as the obvious manifestation of the state’s penal power, itself the obvious manifestation of the state’s stateless, its very sovereignty. There is no theory of the so-called territoriality principle which determines jurisdiction based on the location of the crime within some sovereign’s territory (or within some sovereignty, for short). Territorial jurisdiction just is.”). 2. See Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (“[T]he general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done.”); David Wolitz, Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism, 91 OREGON L. REV. 725, 730 (2012). The doctrine of territoriality—according to which criminal jurisdiction is determined by the territorial location of the crime—seems to answer most questions about which criminal justice system has jurisdiction over which crimes.”). In common law countries, the “territoriality principle” is so central that even extra-territorial extensions of criminal jurisdiction are often framed in terms of territory. Lindsay Farmer, Territorial Jurisdiction and Criminalization, 63 UNIV. OF TORONTO L.J. 225, 241-43 (2013) (describing territorial jurisdiction as “the central case and organizing idea” into which other cases were “either fitted . or treated as exceptions” and recounting fictions employed by courts to conclude that an act took place within a particular territory when in fact it did not); Dubber, supra note 1, at 265-66 (giving example of Canadian statute in which acts occurring in space http://digitalcommons.law.ou.edu/ailr/vol39/iss2/1 No. 2] TRIBAL CRIMINAL JURISDICTION 339 nationality, plus jurisdiction over the sovereign’s nationals and others whose actions affect its community for crimes committed outside its territory.3 When a person travels to another jurisdiction, nationality normally does not operate as a shield protecting him or her from prosecution, because jurisdiction in those cases is based on the local sovereign’s control over its territory.4 Citizenship status, consent, and are legislatively “deemed” to have taken place in Canada for purposes of jurisdiction). Diplomatic immunity is an exception to the territoriality principle, but the exception is limited to those who represent the government and does not generally bar one sovereign from prosecuting the citizens of another. See Mitchell S. Ross, Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities, 4 AM. U.J. INT’L L. & POL’Y 173, 177-78 (1989) (describing how diplomatic immunity is based on the idea
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