§1302 — Title 25 Indians | U.S. Code

Summary

When a tribe runs its own government, it must protect many basic rights people have under the U.S. Constitution. Tribes cannot stop people from practicing religion, speaking or publishing their views, gathering peacefully, or asking the government for help. People are protected from unreasonable searches and seizures; warrants must be based on probable cause and describe what will be searched or taken. A person cannot be tried twice for the same crime, forced to testify against themself, or have private property taken for public use without fair payment. In criminal cases people have a right to a speedy, public trial, to know the charges, to face witnesses, to get witnesses for their defense, and to hire a lawyer (or, if convicted and facing more than one year in jail, receive effective counsel paid by the tribe). Tribes must not use excessive bail or fines, or cruel punishments, and usually may not punish an offense with more than 1 year in jail or a $5,000 fine. Under certain rules a tribe may impose up to 3 years or a $15,000 fine for one offense, but total punishment cannot exceed 9 years. People accused of jail time may ask for a jury trial of at least six jurors. If a tribe gives more than 1 year in jail, it must meet extra rules: give effective legal help, provide a licensed lawyer for those who cannot pay, have a legally trained and licensed judge, make its criminal laws and procedures public before charging someone, and keep a record of the trial (including an audio recording). Sentences under these rules can be served in approved tribal jails, nearby federal facilities under a pilot program, state or local jails by agreement, tribal rehabilitation centers, or other punishments the tribal court orders. The word “offense” means a criminal law violation. These rules do not change the United States’ or a delegated State’s duty to investigate or prosecute crimes in Indian country.

Title 25, §1302

Indians — Source: USLM XML via OLRC

(a)No Indian tribe in exercising powers of self-government shall—

(1)make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;

(2)violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

(3)subject any person for the same offense to be twice put in jeopardy;

(4)compel any person in any criminal case to be a witness against himself;

(5)take any private property for a public use without just compensation;

(6)deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense (except as provided in subsection (b));

(7)(A)require excessive bail, impose excessive fines, or inflict cruel and unusual punishments;

(B)except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;

(C)subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of $15,000, or both; or

(D)impose on a person in a criminal proceeding a total penalty or punishment greater than imprisonment for a term of 9 years;

(8)deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

(9)pass any bill of attainder or ex post facto law; or

(10)deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

(b)A tribal court may subject a defendant to a term of imprisonment greater than 1 year but not to exceed 3 years for any 1 offense, or a fine greater than $5,000 but not to exceed $15,000, or both, if the defendant is a person accused of a criminal offense who—

(1)has been previously convicted of the same or a comparable offense by any jurisdiction in the United States; or

(2)is being prosecuted for an offense comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.

(c)In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—

(1)provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and

(2)at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;

(3)require that the judge presiding over the criminal proceeding—

(A)has sufficient legal training to preside over criminal proceedings; and

(B)is licensed to practice law by any jurisdiction in the United States;

(4)prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and

(5)maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.

(d)In the case of a defendant sentenced in accordance with subsections (b) and (c), a tribal court may require the defendant—

(1)to serve the sentence—

(A)in a tribal correctional center that has been approved by the Bureau of Indian Affairs for long-term incarceration, in accordance with guidelines to be developed by the Bureau of Indian Affairs (in consultation with Indian tribes) not later than 180 days after July 29, 2010;

(B)in the nearest appropriate Federal facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) 11 See References in Text note below. of the Tribal Law and Order Act of 2010;

(C)in a State or local government-approved detention or correctional center pursuant to an agreement between the Indian tribe and the State or local government; or

(D)in an alternative rehabilitation center of an Indian tribe; or

(2)to serve another alternative form of punishment, as determined by the tribal court judge pursuant to tribal law.

(e)In this section, the term “offense” means a violation of a criminal law.

(f)Nothing in this section affects the obligation of the United States, or any State government that has been delegated authority by the United States, to investigate and prosecute any criminal violation in Indian country.

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 304(c) of the Tribal Law and Order Act of 2010, referred to in subsec. (d)(1)(B), probably means section 234(c) of title II of Pub. L. 111–211, which is classified to section 1302a of this title. See par. (13) of H. Con. Res. 304 (111th Congress), which is not classified to the Code.

Amendments

2010—Pub. L. 111–211, § 234(a)(1), designated existing provisions as subsec. (a) and inserted subsec. heading. Subsec. (a)(6). Pub. L. 111–211, § 234(a)(2)(A), inserted “(except as provided in subsection (b))” after “assistance of counsel for his defense”. Amendment was executed to reflect the probable intent of Congress, notwithstanding errors in the directory language in quoting the text to be inserted. Subsec. (a)(7). Pub. L. 111–211, § 234(a)(2)(B), added par. (7) and struck out former par. (7) which read as follows: “require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both;”. Subsecs. (b) to (f). Pub. L. 111–211, § 234(a)(3), added subsecs. (b) to (f). 1986—Par. (7). Pub. L. 99–570, which directed that “for a term of one year and a fine of $5,000, or both” be substituted for “for a term of six months and a fine of $500, or both”, was executed by making the substitution for “for a term of six months or a fine of $500, or both” as the probable intent of Congress.

Statutory Notes and Related Subsidiaries

Bureau of Prisons Tribal Prisoner Pilot Program Pub. L. 111–211, title II, § 234(c), July 29, 2010, 124 Stat. 2281, which related to establishment of tribal prisoner pilot program, was transferred to section 1302a of this title. Purpose of 1986 Amendment Pub. L. 99–570, title IV, § 4217, Oct. 27, 1986, 100 Stat. 3207–146, provided in part that amendment of par. (7) of this section was to “enhance the ability of tribal governments to prevent and penalize the traffic of illegal narcotics on Indian reservations”.

§1302 Constitutional rights