25 U.S.C. § 1302 — Constitutional rights

Page 211 TITLE 25—INDIANS § 1302 SUBCHAPTER I—GENERALLY § 1301. Definitions For purposes of this subchapter, the term— (1) ‘‘Indian tribe’’ means any tribe, band, or other group of Indians subject to the jurisdic- tion of the United States and recognized as pos- sessing powers of self-government; (2) ‘‘powers of self-government’’ means and in- cludes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inher- ent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians; (3) ‘‘Indian court’’ means any Indian tribal court or court of Indian offense; and (4) ‘‘Indian’’ means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, if that person were to commit an offense listed in that section in Indian country to which that section applies. (Pub. L. 90–284, title II, § 201, Apr. 11, 1968, 82 Stat. 77; Pub. L. 101–511, title VIII, § 8077(b), (c), Nov. 5, 1990, 104 Stat. 1892.) Editorial Notes AMENDMENTS 1990—Par. (2). Pub. L. 101–511, § 8077(b), inserted at end ‘‘means the inherent power of Indian tribes, hereby rec- ognized and affirmed, to exercise criminal jurisdiction over all Indians;’’. Par. (4). Pub. L. 101–511, § 8077(c), added par. (4). Statutory Notes and Related Subsidiaries SHORT TITLE Title II of Pub. L. 90–284, which is classified generally to this subchapter, is popularly known as the ‘‘Indian Civil Rights Act of 1968’’. TIME LIMITATION ON CRIMINAL MISDEMEANOR JU- RISDICTION OF TRIBAL COURTS OVER NON-MEMBER INDIANS Pub. L. 101–511, title VIII, § 8077(d), Nov. 5, 1990, 104 Stat. 1893, as amended by Pub. L. 102–124, § 1, Oct. 9, 1991, 105 Stat. 616, which provided that the effects of subsecs. (b) and (c), which amended this section, as those subsections affect the criminal misdemeanor ju- risdiction of tribal courts over non-member Indians have no effect after Oct. 18, 1991, was repealed by Pub. L. 102–137, Oct. 28, 1991, 105 Stat. 646. Subsequent to re- peal, Pub. L. 102–172, title VIII, § 8112A(b), Nov. 26, 1991, 105 Stat. 1202, purported to amend section 8077(d) of Pub. L. 101–511 by substituting ‘‘1993’’ for ‘‘1991’’. § 1302. Constitutional rights (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 free- dom of speech, or of the press, or the right of the people peaceably to assemble and to peti- tion for a redress of grievances; (2) violate the right of the people to be se- cure in their persons, houses, papers, and ef- fects against unreasonable search and sei- zures, 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 pro- ceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the wit- nesses against him, to have compulsory proc- ess 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 exces- sive fines, or inflict cruel and unusual punish- ments; (B) except as provided in subparagraph (C), impose for conviction of any 1 offense any pen- alty or punishment greater than imprison- ment for a term of 1 year or a fine of $5,000, or both; (C) subject to subsection (b), impose for con- viction of any 1 offense any penalty or punish- ment 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 pro- ceeding 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 proc- ess 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 im- prisonment 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 com- parable to an offense that would be punishable by more than 1 year of imprisonment if pros- ecuted 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 ef- fective assistance of counsel at least equal to that guaranteed by the United States Con- stitution; and Page 212 TITLE 25—INDIANS § 1302a 1 See References in Text note below. (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 com- petence 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 juris- diction 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 proce- dure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and (5) maintain a record of the criminal pro- ceeding, including an audio or other recording of the trial proceeding. (d) Sentences In the case of a defendant sentenced in accord- ance 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 Af- fairs for long-term incarceration, in accord- ance 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 fa- cility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) 1 of the Tribal Law and Order Act of 2010; (C) in a State or local government-ap- proved detention or correctional center pur- suant 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 pun- ishment, 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 crimi- nal violation in Indian country. (Pub. L. 90–284, title II, § 202, Apr. 11, 1968, 82 Stat. 77; Pub. L. 99–570, title IV, § 4217, Oct. 27, 1986, 100 Stat. 3207–146; Pub. L. 111–211, title II, § 234(a), July 29, 2010, 124 Stat. 2279.) 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 ‘‘assist- ance of counsel for his defense’’. Amendment was exe- cuted to reflect the probable intent of Congress, not- withstanding 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 punish- ment 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 sub- stituted 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 gov- ernments to prevent and penalize the traffic of illegal narcotics on Indian reservations’’. § 1302a. Bureau of Prisons tribal prisoner pro- gram (1) In general Not later than 120 days after March 15, 2022, the Director of the Bureau of Prisons shall es- tablish a program under which the Bureau of Prisons shall accept offenders convicted in trib- al court pursuant to section 1302 of this title (as amended by this section), subject to the condi- tions described in paragraph (2). (2) Conditions (A) In general As a condition of participation in the pro- gram described in paragraph (1), the tribal court shall submit to the Attorney General a request for confinement of the offender, for ap- proval by the Attorney General (or a designee) by not later than 30 days after the date of sub- mission. (B) Limitations Requests for confinement shall be limited to offenders convicted of a violent crime (com- parable to the violent crimes described in sec- tion 1153(a) of title 18) for which the sentence