Document Type

Article

Publication Date

12-6-2006

Abstract

In the Blackfeet Tribal Court of Appeals, the Court reversed a lower court order which dismissed a case for lack of personal jurisdiction. The question before the Court was whether the Defendant was swept into the criminal jurisdiction of the Blackfeet tribe by reason of the “Duro-fix.” (See Duro v. Reina, 45 U.S. 676 (1990), §25 U.S.C. 1301(2), U.S. v. Lara, 541 U.S. 193 (2004), and Means v. Navajo Nation, 432 F.3d 924 (2005)).

The “Duro-fix” is an amendment to the Indian Civil Rights Act which confirmed that an Indian Tribe has “inherent power” to exercise criminal jurisdiction over all Indians.” The “Duro-fix” has been consistently upheld in subsequent federal cases.
However, in Means the Ninth Circuit did not address the question of whether a person who was racially Indian, but who was not enrolled or eligible for enrollment in any tribe could be subject to tribal jurisdiction.

The Court referenced an article from the Montana Law review, citing U.S. v. Rogers, 45 U.S. 567 (1846) which held that the term Indian “is confined to those who by the usages and customs of the Indian are regarded as belonging to their race.” 67 Montana Law Review (Summer 2006) at p. 177.
Cases subsequent to Rogers formulated a two-prong test for Indian status: (1) the person has Indian blood, and (2) is recognized as an Indian by the tribe or Indian community.

BLOOD PRONG – competing court cases hold differently as to what total blood quantum is sufficient to maintain an Indian identity for purposes of criminal jurisdiction. U.S. v. Bruce, 304 F.3d 1215 (2005) supports that 1/8 blood quantum is enough to satisfy the blood prong. The Ninth Circuit held that the requirement to determine “Indian-ness” only requires some blood from a clearly identified ancestor is enough to satisfy the Blood Prong.

RECOGNITION PRONG – The Montana law Review Article elaborates on what are considered the St. Cloud factors that are: (1) enrollment in tribe; (2) government recognition formally and informally through providing the person assistance reserved only to Indians; (3) enjoying benefits of tribal affiliation; and (4) social recognition as an Indian through living on a reservation and participating in Indian social life
According to the article, in the Duro-fix Congress has restored significant contacts as the test within the recognition prong of the Rogers test. This broadened recognition includes de facto membership.
In this case, the defendant, though not a member of an Indian tribe, is a descendant with an unspecified blood quantum. Even if defendant’s blood quantum is less than 1/8, the Court determined that this would still be enough to support the tribe’s assertion of criminal jurisdiction over her. Defendant additionally has significant contacts with the Blackfeet tribe which are sufficient to assert criminal jurisdiction over her.

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