Federal Appeals Court Affirms Extra-Territorial Criminal Jurisdiction Over Tribal Members
The Federal Court of Appeals for the Sixth Circuit (Michigan, Ohio, Kentucky and Tennessee) recently affirmed criminal jurisdiction over tribal members for criminal acts committed outside of the tribal reservation boundaries.
In Kelsey v Pope, et. al., the plaintiff challenged his conviction of a misdemeanor for conduct occurring at the Little River Band of Ottawa Indians (LRBOI) Community Center, which is located on land owned by LRBOI, but not within tribal reservation boundaries. The plaintiff challenged LRBOI's criminal jurisdiction in the U.S. District Court for the Western District of Michigan, which ruled LRBOI lacked criminal jurisdiction to try and punish the plaintiff's off-reservation conduct.
On appeal, the Sixth Circuit Court of Appeals reversed the District Court, holding that LRBOI has inherent sovereign authority to try and punish its members on the basis of tribal membership, regardless of the location of the criminal act, where the prosecution was necessary to protect tribal self-government or control internal relations.
In particular, the Court of Appeals noted the following circumstances substantially affected LRBOI's self-governance interests:
- the plaintiff was a member of the tribe's nine-person Tribal Council,
- the victim was a tribal employee discharging her official duties at an official tribal elders' meeting, and
- the crime occurred at the center of tribal community activities including housing tribal office space for the conduct of the business of a tribal sovereign.
The Court of Appeals also considered and rejected the plaintiff's claim that his conviction violated due process requirements because the Tribal Court of Appeals retroactively modified a territorial limitation on LRBOI's criminal jurisdiction. Noting that the plaintiff's criminal conduct, touching the victim's breasts through her clothes, was clearly prohibited by the LRBOI Offenses Ordinance, the Court of Appeals found that fair notice of the criminal nature of the plaintiff's conduct existed at the time it occurred and that the plaintiff was not deprived of any due process in being charged, tried, and convicted for his criminal conduct.
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