U.S. Code » Title 25 » Chapter CHAPTER 15— CONSTITUTIONAL RIGHTS OF INDIANS › Subchapter SUBCHAPTER I— GENERALLY

25 U.S.C. § 1302

Constitutional rights

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(a) In generalNo Indian tribe in exercising powers of self-government shall—(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, 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 proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process 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 excessive fines, or inflict cruel and unusual punishments;(B) except as provided in subparagraph (C), impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for a term of 1 year or a fine of $5,000, or both;(C) subject to subsection (b), impose for conviction of any 1 offense any penalty or punishment 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 proceeding 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 process 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 imprisonment or a fine greater than $5,000A 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 comparable to an offense that would be punishable by more than 1 year of imprisonment if prosecuted by the United States or any of the States.(c) Rights of defendantsIn 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 effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and(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 competence 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 jurisdiction 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 procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.(d) SentencesIn the case of a defendant sentenced in accordance 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 Affairs for long-term incarceration, in accordance 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 facility, at the expense of the United States pursuant to the Bureau of Prisons tribal prisoner pilot program described in section 304(c) 11 See References in Text note below. of the Tribal Law and Order Act of 2010;(C) in a State or local government-approved detention or correctional center pursuant 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 punishment, 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 criminal 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 NotesReferences 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 “assistance of counsel for his defense”. Amendment was executed to reflect the probable intent of Congress, notwithstanding 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 punishment 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 substituted 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 SubsidiariesBureau 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 governments to prevent and penalize the traffic of illegal narcotics on Indian reservations”.

Notes of Decisions
Cited in 447 cases (27 in the last 5 years), 1969–2026 · leading case: Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 2011).
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Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 2011). · cites it 7× “On habeas review, the district court concluded that the Indian Civil Rights Act, 25 U.S.C. § 1302 (7) (2009), 1 prohibited the tribal court from imposing consecutive sentences cumulatively exceeding one year for multiple criminal violations arising from a single criminal…”
United States v. Bryant, 195 L. Ed. 2d 317 (2016). · cites it 8× “25 U. S. C. §1302 (a)(7) (2006 ed.).2 Congress has since expanded tribal courts’ sentencing authority, allowing them to im- pose up to three years’ imprisonment, contingent on adop- tion of additional procedural safeguards.”
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). · cites it 6× “§ 1343 (4) and 25 U. S. C. § 1302 (8). The court apparently concluded, first, that the substantive provisions of Title I impliedly authorized civil actions for declaratory and injunctive relief, and second, that the tribe was not immune from such suit.”
Kevin Howlett v. The Salish & Kootenal Tribes of the Flathead Reservation, Montana, 529 F.2d 233 (9th Cir. 1976). · cites it 14× “Kevin Howlett and Bernard Clairmont, members of the Salish and Kootenai Tribes of the Flathead Reservation, Montana [herein Tribes] who contend that the refusal of the Tribes to declare them eligible candidates for tribal council membership deprived them of their right to travel…”
Fortino Alvarez v. Randy Tracy, 835 F.3d 1024 (9th Cir. 2016). · cites it 12× “He was sentenced to five years in prison. Under the Indian Civil Rights Act (ICRA), tribes may not deny criminal defendants facing imprisonment “the right, upon request, to a trial by jury.”
Jessica Tavares v. Gene Whitehouse, 851 F.3d 863 (9th Cir. 2017). · cites it 7× “See also 25 U.S.C. § 1302 . Nor does the dissent explain why it would be an intrusion on tribal sovereignty to prevent a tribe from excluding non-members, but not an intrusion to prevent a tribe from excluding former or current tribe members.”
Russell Means v. Dick Wilson, 522 F.2d 833 (8th Cir. 1975). · cites it 10× “§ 1985 or 25 U.S.C. § 1302 , but rested its decision on the section 1302 claim on the determination that no claim was alleged under that section.”
State v. Madsen, 2009 SD 5 (S.D. 2009). · cites it 11× “] Madsen argued below that the hotel security guards were agents of the Tribe and in that capacity were required to adhere to Fourth Amendment principles by virtue of the Indian Civil Rights Act, 25 U.S.C. § 1302 (2). Madsen contended that violations of the reasonableness…”
United States v. Cavanaugh, 643 F.3d 592 (8th Cir. 2011). · cites it 8× “*594 The district court, recognizing that the Sixth Amendment imposes no duty on Indian tribes to provide counsel for indigent defendants, noted that the prior convictions were valid at their inception and that the prior terms of incarceration were not in violation of the United…”
Cannon v. Univ. of Chicago, 441 U.S. 677 (1979). · cites it 2× “49 , which involved Title I of the Indian Civil Rights Act of 1968, 25 U. S. C. § 1302 (8): "No Indian tribe .”
Gaming Corp. of Am. Golden Nickel Casinos, Inc. v. Dorsey & Whitney, a P'ship, in Re Dorsey & Whitney, a P'ship, 88 F.3d 536 (8th Cir. 1996). · cites it 4× “Count IX alleged that Dorsey had violated the Indian Civil Rights Act, 25 U.S.C. § 1302 . The management companies claimed damage in excess of $100 million.”
Nevada v. Hicks, 533 U.S. 353 (2001). · cites it 2× “Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts, 25 U. S. C. § 1302 , "the guarantees are not identical," Oliphant, 435 U.”
Show all 447 citing cases →
— 25 U.S.C. § 1302(1) — 1 case
Janis v. Wilson, 385 F. Supp. 1143 (D.S.D. 1974).
— 25 U.S.C. § 1302(2) — 1 case
Loncassion v. Leekity, 334 F. Supp. 370 (D.N.M. 1971).
— 25 U.S.C. § 1302(2)(1996) — 1 case
Nevayaktewa v. Hopi Tribe, 1 Am. Tribal Law 306 (1998).
— 25 U.S.C. § 1302(6) — 1 case
Lomayestewa v. Hopi Tribe, 6 Am. Tribal Law 427 (2006).
— 25 U.S.C. § 1302(7) — 1 case
United States v. Juv. Male, 864 F.2d 641 (9th Cir. 1988).
— 25 U.S.C. § 1302(8) — 8 cases
Martinez v. Santa Clara Pueblo, 402 F. Supp. 5 (D.N.M. 1975).
Mary Daly v. United States of Am., 483 F.2d 700 (8th Cir. 1973).
Janis v. Wilson, 385 F. Supp. 1143 (D.S.D. 1974).
Yellow Bird v. Oglala Sioux Tribe of South Dakota, 380 F. Supp. 438 (D.S.D. 1974).
DeMent ex rel. DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir. 1989).
— 25 U.S.C. § 1302(a)(2) — 1 case
Oertwich v. Traditional Vill. of Togiak (D. Alaska 2019).
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