Federal Indian law poses a specific and somewhat unique challenge in American law: How should the state and federal governments recognize the sovereignty of Federally recognized tribes? Should they be recognized as separate governments from the US entirely, or only in certain situations—and if so, what situations?
Criminal jurisdiction on tribal land is one area in which the federal government has come to different conclusions at various times. The result is a complex series of laws that reflect not only the need to control crime, but also where the federal government stood on the idea of tribal sovereignty at any given time.
The first law addressing criminal prosecutions on Indian land, the Trade and Intercourse Act, was passed in 1790. It wasn't until Ex parte Crow Dog in 1883, however, that the US federal government took a strong stance on tribal sovereignty.
In Ex parte Crow Dog, the US Supreme Court held that tribes had the right to self-governance. The Court also held that federally recognized tribal lands fell outside the jurisdiction of the states in which they were located, and that there was no federal jurisdiction for intra-tribal crimes.
In other words, if a tribal member committed a crime against another member of the tribe on tribal land, the case was the tribe's business. Neither the federal government nor the state could intervene.
In United States v. Kagama (1886), however, the Court took a step back. There, the Court held that the Major Crimes Act does apply to crimes on tribal land involving only tribal members.
Between 1886 and 2004, a number of laws and court decisions sought to further define tribal jurisdiction. Some had the effect of further limiting tribal sovereignty when it came to prosecuting crimes against members of the tribe on their own land. For instance, in Duro v. Reina (1990), the Supreme Court held that tribal courts did not have jurisdiction over criminal defendants unless they were members of that tribe. Congress reversed this decision in 1991 with a law stating that tribal courts have criminal jurisdiction over any member of any federally recognized tribe, not just their own.
When the Violence Against Women Act (VAWA) was reauthorized in 2013, it gave tribal courts jurisdiction not only over tribal members, but also over non-tribal members who committed certain crimes against tribal members, including domestic violence and violating protection orders.
Law on criminal jurisdiction in Indian country have expressed many different theories about tribal sovereignty throughout the years. New laws and court decisions still attempt to strike that balance in various ways—and opinions vary greatly on which mix of jurisdiction in criminal matters is best for protecting tribal sovereignty.