Editor’s note: This story is the first installment of a series that illuminates the historical context of tribal law in the Pacific Northwest and examines cases where tribes and tribal members have used federal courts to expand their rights under federal law. The series also explores the growing authority of tribal courts and their role in exercising the inherent rights of sovereign Indigenous nations, as well as the way federal and state laws restrict tribal courts’ operation. Read the entire series here.
This series is supported by the Data-Driven Reporting Project.
As a kid, Matthew Johnson spent his afternoons playing basketball in the reservation gymnasium, a building with an office that also housed the Umatilla Tribal Court, where his dad worked. Today, Johnson walks through the glassy, two-story rotunda of the Nixyáawii Governance Center to get to his office, where he works with his father as the director of one of the leading tribal courts in the United States.
In the 40 years since Johnson’s father helped set up the court system for the Confederated Tribes of the Umatilla Reservation (CTUIR), it has shaken off the constraints of state jurisdiction on its lands and taken on the most comprehensive criminal jurisdiction allowed under federal laws that restrict tribal court activity.
Umatilla Tribal Court Chief Judge William Johnson, Matthew’s father, says his court is prepared to go further now that tribal jurisdiction has expanded under the most recent reauthorization of the Violence Against Women Act (VAWA).
Judge Johnson says Umatilla, Cayuse and Walla Walla people, who together make up the CTUIR, share the desire to operate the systems that make their nation run, rather than allowing the government to do so on their behalf.
“If it’s going to happen, we want to do it,” Judge Johnson says. “And we’ll do it our way, for the benefit of our people.”
That embrace of self-determination is characteristic of tribal governments. And it’s a goal supported — at least in theory — by the current era of federal Indian policy. The U.S. government agreed in treaties to provide certain services and rights to tribes who relinquished control over parts of their territories. But administration of those services has ranged from spotty and delinquent to non-existent or harmful.
With the Self-Determination and Education Act of 1975, Congress told the Bureau of Indian Affairs to contract out services formerly run by the federal government to tribes themselves. Under those contracts with the government, tribal nations took control of schools, health clinics, policing, and forest and fisheries management, among other services.
After centuries of government suppression, tribal justice systems are growing in strength. Basic safety was just one of the services the federal government promised to provide. For the most part, though, tribal courts aren’t one of the rights reserved in treaties. Instead, operating a court is one of the inherent rights of a sovereign government.
“The power to tax, the power to exclude, the power to prosecute people, to put them in jail, to establish a government and pass your own laws — those are inherent powers,” says Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, professor of American Culture at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. “Tribes have inherent powers whether or not they have any kind of treaty right or even federal recognition, although federal recognition helps.”
The Self-Determination Act was a major reversal from previous eras of federal policy regarding the government’s treatment of Indigenous communities.
“Until about 1975, the United States just passed a bunch of laws that either intentionally tried to eradicate tribes from the face of the planet or ease them into oblivion in a gentle way,” Fletcher said. “And 1975 was when Congress finally started passing laws directly funding tribal governments to run services on their reservations with an eye towards them developing and having a future.”
During previous eras of federal policy, the government sometimes encouraged the creation and independent function of tribal governments. But those policies were also in competition with the imperatives of U.S. government conquest and the suppression used to accomplish it.
“Law enforcement, judiciary, all that stuff — that is the incredible power of the sovereign,” Fletcher said. “And the idea of tribes exercising those inherent rights — that’s terrifying to a lot of people. Usually people who are not Indians, obviously.”
Overlapping, sometimes contradictory and continually evolving federal laws constrain the ability of tribal nations to operate their own independent courtrooms and police forces. Even as tribal courts increase their power under VAWA, tribal leaders are watching developments in the wake of a U.S. Supreme Court decision issued in June that allows increased state jurisdiction on tribal lands.
And it’s not just laws that have to be navigated. Severely limited resources on many reservations mean some tribes must rely on state or federal authorities for public safety and justice systems, even in cases where tribes have legal jurisdiction. Others would prefer to use their resources on other government structures, such as fish and wildlife agencies.
“The pressures against tribes exercising jurisdiction are just overwhelming,” Fletcher said.
The growing power of tribal courts
Not all tribes have their own courts. Out of 574 federally recognized tribes in the United States, about 400 run a court system of their own, according to the U.S. Department of the Interior. And whether those tribal courts have jurisdiction over crimes committed on their land varies, based on the type of crime and whether the accused is Native American.
Federal laws restrict the ability of tribal courts to address crimes committed on their lands by people who aren’t Indigenous. Only a small fraction of crimes committed by non-Indigenous people are within tribal jurisdiction, according to federal law. Those crimes are mostly related to domestic violence, and are only available for jurisdiction in tribal courts that meet certain criteria under the Violence Against Women Act. Thirty-one tribes have applied for expanded jurisdiction under VAWA. But only a few, including Umatilla, have extensively used that jurisdiction.
When it comes to crimes committed by tribal members, the Umatilla Tribal Court has greater power. The court has jurisdiction over all “Indians” — a contested term among many Indigenous people, but one that is standard in the legal system.
“‘Indians’ is not defined [under federal law], but it definitely means tribal members, members of other federally recognized tribes and other people that the tribe can prove are ‘an Indian,’” Fletcher said.
Judge Johnson said his court interprets that broadly.
“We exercise jurisdiction over anybody who even thinks they’re Indian,” Johnson said.
In cases involving Native American defendants, Umatilla has a lot of leeway on the types of charges it can file. That’s because Umatilla has worked to build its justice system and gain expanded jurisdiction.
“They have the ability to prosecute those individuals for crimes committed within their reservations for any crime at all,” Fletcher said. “Anything from criminal jaywalking to mass murder.”
Federal law also limits the sentences tribal courts can impose.
Because tribes are sovereign nations, their governments aren’t automatically bound by the U.S. Constitution. For example, tribal courts do not have to provide attorneys to someone who can’t afford one. Guaranteeing those protections amounts to a limitation of the authority of tribal governments. But if they do not do so, tribal courts can only impose jail sentences of one year or less.
Umatilla extended its own constitutional protections to anyone who steps foot on its reservation. The Umatilla Tribal Court is run only by law-trained judges and provides defendants with court-appointed attorneys. For these reasons, the court can impose a maximum sentence of three years for each crime and up to a total of nine years for cases with consecutive sentences on multiple crimes.
The U.S. Department of Justice has concurrent jurisdiction over some crimes under the Major Crimes Act. Kyle Daley, a citizen of the Confederated Tribes of Umatilla and the tribe’s prosecutor, says Umatilla has a good relationship with the Department of Justice, one that allows the two sovereign entities to collaboratively decide which government should prosecute individual crimes.
“As independent sovereigns we could both prosecute to the end, but it's more likely that the tribe and the feds will work in a partnership,” Daley said. “The tribe has its own sense of justice, particularly in a homicide case where someone is going to be released someday and they are going to come back to the community.”
Today, the court works in partnership with the federal government on some cases where the Major Crimes Act applies. But for 27 years, the state of Oregon also had jurisdiction on the Umatilla Indian Reservation. That was based on a law passed during the Termination Era, when the Eisenhower and Truman administrations took steps to forcibly assimilate tribal members into American society, by unilaterally ending the political status of some Native American tribes and seizing and selling their land.
One of the destructive policies introduced by Congress during the Termination Era was Public Law 280. Passed in 1953, the law initially gave five states criminal jurisdiction on the reservations within their borders, including Oregon, California, Wisconsin, Nebraska and Minnesota. Alaska was added when it became a state in 1959, and other states, including Washington, adopted parts of the law.
Public Law 280 was one of many laws passed during the Termination Era that eroded tribal sovereignty. It imposed additional outside control over tribal jurisdiction and prevented tribal governments from acting to protect their citizens. It has also resulted in an increase of violent crime on reservations, according to scholars like Fletcher.
In places where tribal courts can’t prosecute non-Native defendants and state and local authorities decline to do so, crime caused by outsiders can proliferate, fueling problems such as the crisis of missing and murdered Indigenous people.
“Public Law 280 is an unfunded mandate,” Fletcher said. “It’s not like states and counties can tax reservation lands to pay for law enforcement. Or prisons. They are always aware of that. If there’s a reason not to go to Indian Country to investigate crime and put somebody in jail, they’re going to go down that road — they’re not going to do it.”
In the mid-1970s, Judge Johnson was the Umatilla representative for the Oregon Commission of Indian Services. Victor Atiyeh, a state senator at the time, approached Johnson.
“He asked me, ‘What do the Umatillas want?’” Johnson says. “And I said, ‘We want to do it ourselves. We want the state the hell out of our business.’ And he said, ‘If I become governor, that’s what I’m going to do.’ And that’s what he did.”
Atiyeh, a Republican, was elected in 1978 as Oregon’s first Arab American governor. He signed an executive order relinquishing state jurisdiction over the Umatilla Indian Reservation the following year.
As the Umatilla Tribal Court gained jurisdictional power, its growing strength rippled out to other parts of the tribal government.
“That was really when we started to take on some of the development of our own systems,” Matt Johnson says.
Atiyeh signed a second order in 1979, ending state jurisdiction on the Burns-Paiute Reservation. And the Warm Springs Indian Reservation was exempt from the law when it took effect. But Public Law 280 remains in effect for six of the nine federally recognized tribes in Oregon.
A July morning at the Umatilla Tribal Court
Today, the Umatilla Tribal Court holds hearings five days per week, and the court’s three judges hear a range of civil and criminal cases, including domestic violence cases against non-Native people.
On a Thursday morning in July, Umatilla Tribal Court Judge David Gallaher held hearings in eight cases. They were mostly traffic violations, including a felony DUI where the driver had been previously convicted of the same charge.
But in that case, the driver requested house arrest instead of incarceration.
“Can I just get an ankle bracelet?” he asked Judge Gallaher. “My wife is sick. She’s in a wheelchair. Then I could keep my job, too.”
In several other cases that day, the judge had imposed sentences he immediately waived in favor of probation, alongside drug and alcohol treatment. But the tribe’s prosecutor, Kyle Daley, told Gallaher that tribal code requires 90 days in jail for repeated convictions for driving while intoxicated.
The judge offered to delay the man’s jail time, then worried aloud over the date the man suggested, which would have put him behind bars during Christmas. Gallaher ended up setting another hearing date, saying he wanted to research Umatilla law on electronic surveillance in lieu of jail time.
But Daley, a citizen of the CTUIR, said later that while tribal code was clear on repeat felony driving cases, it doesn’t offer much guidance on house arrest.
“This is a situation where the tribe has not adopted a tribal code,” Daley said.
Another man pleaded guilty to a charge of misdemeanor domestic assault. His attorney said he had locked his girlfriend in a closet for several minutes during a fight. At the hearing, she was there, sitting close beside him and holding his hand. Judge Gallaher sentenced the man to six months in jail with the ability to earn conditional discharge, plus mandated classes on domestic violence.
Two other defendants, both female, didn’t show up for their hearings. The judge declined to issue warrants, instead directing the attorneys to get in touch with the two women and find out why they’d been absent.
Culture and traditions as guidelines
Johnson said concepts of restorative justice are foundational to the operations of the Umatilla Tribal Court. The court encourages negotiations that will reconcile community members in the wake of a crime and prioritizes keeping families together in both criminal and juvenile cases. He said that approach is vital amongst a tight-knit populace.
“We give people chances to try to work their way back into the community’s good graces, because when we get done with people in our courtroom, we still have to live with them,” Johnson says. “So we use concepts of restorative justice all the time.”
Kent Fisher, one of two public defenders who works on contract for the tribe, previously worked for 14 years as a public defender in the Umatilla County Circuit Court nearby in Pendleton.
He said the difference is clear.
“The tribe definitely focuses more than circuit court does on rehabilitation,” Fisher said.
Daley, the prosecutor, echoed that.
“I recognize that these are people who are going to be in the community for a long time, so there’s a real desire to include drug treatment and other things that will prevent crimes from happening again,” Daley said.
For example, Daley said, “the tribe might not be arguing for imposed jail upfront always in cases where the state might. It might argue more for the carrot than the stick, or for probation. It gives people an opportunity to succeed.”
Instead of the sentencing guidelines state and federal courts follow, Johnson said, “we have our culture and traditions as guidelines.”
“With or without courts,” the judge continued, “we’ve always had restorative justice.”
‘The tribe really gets to define the crime’
Until 1978, tribal communities addressed crimes committed by non-Native people on their lands, until another U.S. Supreme Court ruling limited that ability. In Oliphant v. Suquamish Indian Tribe, the high court said tribal courts don’t have the inherent ability to charge or punish non-Native people for crimes committed on tribal lands.
There was no clear legal precedent for such a ruling, but the court found that Congress and former U.S. presidents had operated under “the assumption” that tribal courts lacked jurisdiction over non-Native people.
Because state and local police often ignored crimes on reservations and crimes against Native people in general, Public Law 280 and the Oliphant decision effectively created areas of lawlessness — where non-Indigenous people knew they could commit crimes and get away with them.
“There are a lot of (non-Native) people who hang out in Indian Country because they know they can commit crime,” says Robert Miller, Eastern Shawnee, professor at Arizona State University’s Sandra Day O’Connor College of Law.
That could change. On Oct. 1, the latest reauthorization of the Violence Against Women Act took effect. Now, Umatilla and other qualifying tribal courts can prosecute sexual assault, stalking, child abuse and assaults against tribal police officers committed on their lands by non-Native people.
Special jurisdiction under VAWA is available to tribal nations that have qualified to apply for it, by adopting the same legal protections for defendants that tribal courts must observe in order to use expanded sentencing, as well as including non-Indigenous people in their juries and informing defendants in writing of their right to file habeas corpus petitions.
An earlier version of VAWA that took effect in 2013 meant tribes could prosecute some domestic violence cases committed by non-Native people against tribal members, if the accused was living on tribal lands and in an existing relationship with an Indigenous person.
Even within that limited criteria, expanded tribal jurisdiction meant tribal members were more willing to come forward and press charges, according to Brent Leonhard, attorney in the Office of Legal Counsel for the Confederated Tribes of Umatilla.
Jurisdictional expansion under the latest version of the law means the tribe will be able to address the crimes that often parallel domestic violence cases.
“For example, something we see a lot is children who are witnesses to those crimes,” said Daley, the tribal prosecutor. “But sometimes because of their ancestry we can’t address that.”
Leonhard said the 2013 version of the law really restricted the tribe’s ability to address crimes committed by non-Native people against tribal members.
“Before, if they assaulted a child, we couldn’t prosecute that,” Leonhard said. “We can now. If they assaulted an officer during their arrest, we couldn’t prosecute that. We can now. If they tried to get the mother to lie on the stand, we couldn’t prosecute. Now we can.”
Crucially, the 2022 reauthorization explicitly states that tribes themselves create the laws they enforce. In August, the Board of Trustees for the Confederated Tribes of Umatilla changed its criminal code, adopting an amendment that, among other things, gives a wider definition to crimes of violence against children. Before, the federal code applied, which limited crimes of violence against children and didn’t include those that cause psychological harm.
“We defined what violence is fairly broadly to include endangering a minor,” Leonhard said. “That’s the big part of the 2022 reauthorization — that the tribe really gets to define the crime.”
Ultimately, many say, protecting tribal safety and exercising self-determination means going further.
“The tribe should have jurisdiction over all crime on the reservation, period,” Leonhard said.
Matt Johnson said the tribe wants to move toward that reality.
“When you go to any state, you’re subject to the laws of that state. You go to any country, then you’re subject to the laws of that country,” Johnson said. “So to me, if you come on our reservation, you should be subject to all of our laws, regardless of whether you're Indian or not.”
Lead photo: Umatilla Tribal Court Judge David Gallaher (center) held hearings on July 14, 2022 in eight separate cases, mostly traffic violations that included a felony DUII where the driver had been previously convicted of the same charge. Photo by Jarrette Werk / Underscore News
