Published On: Fri, Mar 19th, 2010
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Tribal Jurisdiction discussed in Forum

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

The subject of jurisdiction on Indian Lands can be a very complicated endeavor to understand.  That topic was tackled during a forum entitled “Tribal Law and Jurisdiction” which was held at the old Cherokee High School on the night of Thursday, Jan. 18. 

“The Tribal laws are more complex, but on the flip side we can create laws and ordinances in a matter of a month or two whereas in the state, you just can’t do that,” said Ben Reed, Chief of Cherokee Indian Police Department.  “That’s a huge advantage.” 

Reed was part of a six-person panel which included:  Cpt. Steve Lillard, Jackson County Sheriff’s Office; Hope Pheasant, Magistrate in Cherokee Tribal Court; Jason Smith, Assistant Tribal Prosecutor; John Hornbuckle, a defense attorney and EBCI tribal member; and Lois Dunston, Heart to Heart Child Advocate.

Smith said that sometimes laws on reservations can be complicated.  “The Cherokee Police Department deals with three jurisdictions (Tribal, state, and federal) and must keep up with the law on all three.”  He said that the Eastern Band of Cherokee Indians has adopted Chapter 20 of the North Carolina General Statutes dealing with traffic offenses and has to keep current on all state laws therein. 

Dawn Russell, who helped organize the event, asked the panel, “Can you prosecute non-enrolled members in Tribal Court?” 

Reed responded that they can be arrested, “If they’re on the Reservation and breaking the law, the Cherokee Police officers have the authority to enforce the law.” 

Whether or not they’re prosecuted in Tribal court, state court or federal court is up to a series of jurisdictional issues.  First off, they must submit to the St. Cloud test which is a series of questions to determine if they hold status as an American Indian. 

Pheasant related that Tribal Court can claim jurisdiction if the person is an EBCI tribal member, a member of another federally-recognized American Indian Tribe, a first descendant of the EBCI, or if they are a non-Indian and voluntarily submit to the Court’s jurisdiction. 

If a non-Indian denies the jurisdiction of Tribal Court, Pheasant said that person will be taken before a state magistrate. 

Hornbuckle commented, “We fall in this gray area where we need to move toward true sovereignty where we have control over all of the crimes or we run the risk of becoming just another county.” 

Cpt. Lillard commented, “We do actively work with the Cherokee Police Department; however, we do recognize the sovereignty of the Eastern Band.  We don’t have officers just come and arrest people.  We recognize the sovereignty of the Reservation.”

One challenge facing Indian law enforcement is sentencing issues.  Smith related that, according to the Indian Civil Rights Act, Tribal courts are only allowed to sentence someone convicted of a crime to a maximum of one year imprisonment and a fine of $5,000 per count.  “These aren’t Eastern Band issues.  These are things that have to be changed in Congress.” 

Smith continued, “This, in my opinion, is the single-most limitation.”  He did relate that Sen. Byron Dorgan (D-ND) has submitted legislation, which is currently going through Congress, that would allow Tribal courts to expand their sentence to a three year imprisonment per court. 

Reed said that some cases fall under the Major Crimes Act and are prosecuted in federal court. 

Smith said the decision to prosecute the federal cases lies with the U.S. Attorney’s Office.  “The prosecutor’s office (Tribal) can only ask.  What the U.S. Attorney’s Office does is up to them.” 

Reed commented, “Our working relationship with the U.S. Attorney is one of the best in the country.  Some Tribes has no working relationship whatsoever.” 

He said some Tribes don’t even have the right to arrest non-Indians on their land, but what is known as a 638 contract gives the EBCI that right. 

“That’s not the case here.  If they come on the Reservation and break the law, we can arrest them.” 

Smith said he is proud of the Cherokee Tribal Court system which turns 10 officially on April 1.  “Look at how far it’s come in ten years as far as jurisdiction.  It’s come a long way in a short amount of time.  The State of North Carolina court system took a couple of hundred years to develop.”

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