PRIA, Government Policy, Made Personal

Summary

When tribes run their own governments, they must protect many basic rights people have under the U.S. Constitution. That includes freedom of religion, speech, the press, public assembly, and petitioning government; protection from unreasonable searches and seizures with warrants based on probable cause; no double punishment for the same crime; no forcing someone to testify against themselves; no taking private land for public use without fair payment; fair criminal trial rights like a speedy and public trial, being told the charges, seeing and getting witnesses, and having a lawyer (unless subsection (b) changes who pays); no excessive bail or fines, no cruel or unusual punishments; limits on penalties for one offense (normally no more than 1 year in jail or $5,000 fine, but under certain rules up to 3 years or $15,000, and a total cap of 9 years); equal protection and due process; no bills of attainder or ex post facto laws; and the right to request a jury trial of at least six people for offenses that can bring imprisonment. A tribal court may give more than 1 year (up to 3 years) or a higher fine if the defendant was previously convicted of the same or a similar crime, or if the crime is like one that would carry more than 1 year under federal or state law. If a tribe gives a total sentence over 1 year, it must provide effective legal help at least equal to what the U.S. Constitution requires, supply an indigent defendant a licensed lawyer at tribal expense, ensure the judge has legal training and a U.S. law license, publish the tribe’s criminal laws and rules before charging someone, and keep a record (including an audio recording) of the trial. Sentences may be served in a BIA-approved tribal prison under guidelines to be developed not later than 180 days after July 29, 2010; in a federal facility under the Bureau of Prisons tribal prisoner pilot program; in a state or local facility by agreement; or in a tribal rehabilitation center. “Offense” means breaking a criminal law. This does not stop the United States, or states acting under U.S. authority, from investigating or prosecuting crimes in Indian country.

Title 25, §1302

Indians, Source: USLM XML via OLRC

(a)In general

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)Offenses subject to greater than 1-year imprisonment or a fine greater than $5,000

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)Rights of defendants

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)Sentences

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) 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)Definition of offense

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

(f)Effect of section

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