TREATIES, TRIBAL COURTS, AND JURISDICTION: THE TREATY OF CANANDAIGUA AND THE SIX NATIONS’ SOVEREIGN RIGHT TO EXERCISE CRIMINAL JURISDICTION Carrie E. Garrow* I. Introduction Since the United States Supreme Court’s refusal to recog- nize Indian nations’ sovereign right to exercise criminal juris- diction in 1978, Indian nations have worked to regain recognition of this right. In 1978, in Oliphant v. Suquamish Indian Tribe,1 a non-Indian challenged the Suquamish Indian Tribe’s sovereign right to exercise criminal jurisdiction over him.2 The Court found that inherent tribal powers could be explicitly and implicitly divested, if these powers were inconsistent with their status as domestic dependent nations.3 The Court stated, “By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try * Carrie E. Garrow, J.D., M.P.P. (Mohawk) is the Executive Director of the Center for Indigenous Law, Governance & Citizenship at Syracuse University Col- lege of Law and Adjunct Professor. She is a former prosecutor for the Riverside County District Attorney’s Office and the former Chief Judge of the St. Regis Mo- hawk Tribal Courts. She received her B.A. from Dartmouth College, J.D. from Stanford University, and M.P.P. from the Kennedy School of Government at Harvard University. 1. 435 U.S. 191 (1978). 2. Id. at 194. 3. Id. at 208-09. 250 JOURNAL OF COURT INNOVATION [2:2 non-Indian citizens of the United States except in a manner ac- ceptable to Congress.”4 Drawing a “protective cloak” of United States citizenship around Oliphant,5 the Court found Indian na- tions were implicitly divested of the power to exercise criminal jurisdiction over non-Indians.6 The Court did acknowledge, however, that an Indian nation possesses criminal jurisdiction over non-Indians if the Indian nation has a treaty to that effect.7 In 1990, in Duro v. Reina,8 the U.S. Supreme Court held that the Salt River Pima-Maricopa Indian Community could not as- sert criminal jurisdiction over a non-member Indian.9 The Court held that tribal authority did not extend beyond internal relations among members.10 The Court expressed particular concern about the tribal court exercising criminal jurisdiction over a person who was not a member, was not eligible to be- come a member, and could not vote, hold office, or serve on a jury within the tribal community.11 Congress quickly reversed Duro through an amendment to the Indian Civil Rights Act, commonly known as the “Duro fix,” thereby acknowledging tri- bal courts’ criminal jurisdiction over non-member Indians.12 The United States government’s refusal to acknowledge the full extent of an Indian nation’s sovereign powers does not stop the practical day-to-day problems of crime in Indian coun- try. Focusing only on sexual assault, American Indian and Alaska Native women are about 2.5 times more likely to be raped or sexually assaulted than women in general.13 And 34.1 percent of American Indian and Alaska Native women will be raped in their lifetime, while the rate for white women is 17.7 percent.14 Indian victims of violent crime indicate that over 66 4. Id. at 210. 5. See N. BRUCE DUTHU, AMERICAN INDIANS AND THE LAW 22 (2008). 6. Oliphant, 435 U.S. at 212. 7. Id. at 197. 8. 495 U.S. 676 (1990). 9. Id. at 679. 10. Id. at 685. 11. Id. at 688. 12. See 25 U.S.C. § 1301(2) (2006). 13. See STEVEN W. PERRY, BUREAU OF JUSTICE STATISTICS, U.S. DEP’TOF JUSTICE, AMERICAN INDIANS AND CRIME: A BJS STATISTICAL PROFILE, 1992-2002 5 (2004), avail- able at http://bjs.ojp.usdoj.gov/content/pub/pdf/aic02.pdf. 14. PATRICIA TJADEN & NANCY THOENNES, U.S. DEP’TOF JUSTICE, FULL REPORT OF THE PREVALENCE, INCIDENCE, AND CONSEQUENCES OF VIOLENCE AGAINST WOMEN 22 (2000), available at http://www.ncjrs.gov/pdffiles1/nij/183781.pdf. 2009] TRIBAL COURTS AND JURISDICTION 251 percent of these crimes are committed by non-Indian offend- ers.15 And in crimes involving Indian victims, the offender is more likely to be a stranger.16 Although national data often does not capture the crime rate within each Indian Territory, the Bureau of Justice Statistics illustrate, through three victimi- zation surveys in different Indian nations, the prevalence of crime on Indian territories.17 Each survey only captured a small amount of the tribal population and the surveys do not afford generalizations, but it is critical to note in one community 88 percent of survey participants report being victims of violent crime; 33 percent in another territory; and 25 percent in the third.18 Critically, “[c]rime against American Indians nation- wide seems to have risen dramatically even as Congress has steadily expanded the substantive scope of the Major Crimes Act.”19 Furthermore: [T]he crime rate seems worst in precisely the areas in which the federal government has been most aggressive. For example, de- spite the federal government’s extensive expansion of jurisdiction over Indian country sex crimes in the Major Crimes Act in 1986, the Department of Justice’s own study in the mid-1990s showed that Indian children under twelve are raped or sexually assaulted at a rate three-and-a-half times higher than the average child under age of twelve.20 15. PERRY, supra note 13, at 9. 16. Id. at 8. 17. See generally id. 18. See id. at 33-40. 19. Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L. REV. 779, 828-29 (2006). The Major Crimes Act, ch. 341, § 9, 23 Stat. 385 (1885) (current version at 18 U.S.C. § 1153 (2006)), was enacted in 1885 by Congress in response to the U.S. Supreme Court’s ruling in Ex parte Crow Dog, 109 U.S. 556 (1883), that in the absence of a federal statute limiting tribal court jurisdiction, In- dian nations possessed exclusive criminal jurisdiction. Id. at 571. The Major Crimes Act was the first assertion of federal criminal jurisdiction in Indian country and was a response to a false perception of lawlessness in Indian country as the Bureau of Indian Affairs and other officials did not understand tribal dispute reso- lution and wanted federal jurisdiction as a mechanism to assert control on Indian territories. See CARRIE E. GARROW & SARAH DEER, TRIBAL CRIMINAL LAW AND PRO- CEDURE 87 (2004). The Major Crimes Act does not remove jurisdiction from Indian nations, but rather grants federal courts concurrent jurisdiction over a list of desig- nated offenses. See id. 20. Washburn, supra note 19, at 829 (citing LAWRENCE A. GREENFELD & STEVEN K. SMITH, BUREAU OF JUSTICE STATISTICS, U.S. DEP’TOF JUSTICE, AMERICAN INDIANS AND CRIME 38 (1999), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ aic.pdf). Washburn notes that from 1992 to 1996, “Indian children under twelve were raped or sexually assaulted at a rate of seven incidents per thousand chil- dren” compared to children of all races, who experienced “two rapes or sexual assaults per thousand children.” Washburn, supra note 19, at 829 n.227. 252 JOURNAL OF COURT INNOVATION [2:2 The statistical data illustrate that crime by non-Indians against Indians is a serious problem that must be addressed to protect Indian people and nations. The federal government’s refusal to recognize the jurisdic- tion of tribal courts over non-Indians has left Indian people vulnerable to serious crimes. This vulnerability is further exac- erbated by the fact that non-Indian offenders often go unprose- cuted by the federal government.21 United States attorneys “have been widely criticized for decades for failing to give proper attention to Indian country cases.”22 This may be a result of the “non-reviewability of the decision to decline prosecution [along with] the weak . political accountability of federal prosecutors to Indian communities, and the lack of media inter- est in Indian country . .”23 Indian nations, and particularly tribal court judges, must find other ways to exercise jurisdiction over non-Indians in order to achieve justice for the numerous victims within Indian country. While many individuals and na- tions are working to convince Congress to provide a legislative fix24 that restores recognition of tribal court criminal jurisdiction over non-Indians, some tribal courts are looking for other solutions. One of the tools that tribal courts have begun to employ is their inherent authority to exercise jurisdiction over people within their territories, as recognized by treaties between Indian nations and the United States.25 This inherent authority is a crit- ical source of jurisdiction that all tribal court judges and advo- 21. Washburn, supra note 19, at 818 n.225. 22. Kevin K. Washburn, American Indians, Crime, and the Law, 104 MICH. L. REV. 709, 733 (2006). 23. Id. 24. Indian country advocates are working with Senator Byron Dorgan on the Tribal Law & Order Act of 2009, S. 797, 111th Cong. (as reported by S. Comm. on Indian Affairs, Sept. 10, 2009). Many advocates have argued for language that reverses Oliphant and restores recognition of criminal jurisdiction over non-Indi- ans. Other options have included a legislative fix that would allow Indian nations to petition the federal government for this recognition or enter into a compact with state and federal governments regarding restoration of criminal jurisdiction. The current bill does not include a legislative fix. However, there is also some discus- sion that Congress may sponsor a pilot project with one or two nations. Domestic violence advocates that have worked with Congress on the Violence Against Wo- men Act are also advocating restoration of criminal jurisdiction over non-Indians, as many domestic violence offenders are non-Indians.