By: Kelly Gaines Stoner, Director
Native American Legal Resource Center,
Oklahoma City University School of Law
 British
Crown deals with Tribes as sovereign
nations
 Individual colonies began to grow and
encroach on Indian lands
 Indian wars
 Articles of Confederation/US Constitution
gave Congress power to regulate commerce
with Indian tribes
 Indian
Tribes possess all powers of any
sovereign state
 Conquest/discovery renders the tribes
subject to the power of the United States
 Trade
and Intercourse Acts
 Dealt with Indian Tribes via treaties
 Indian agents appointed to act as
governmental liaisons with tribes
 Agents were under the jurisdiction of the
War Department
 Non-Indians
became land hungry
 Indians must be removed to the west
 Johnson v. McIntosh (land grant by Indian
Chiefs to non-Indians) (1823)
 Cherokee Nation v. Georgia (1831)
(domestic dependent nations/not foreign
state)
 Worcester v. Georgia (1832) (Indian
nations are distinct political communities
with territorial boundaries within which
their authority is exclusive)
Treaties to give up land in exchange for lands
to the west and provisions/goods
Reservations
1871, Congress passes law that no Indian Tribe
was to be recognized as an independent
nation with which the US could make treaties
Trail of Tears
 (1883)
Court of Indian Offenses created
 Ex Parte Crow Dog (1885) member Indian
murders member Indian in Indian Country (no
federal jurisdiction)
 Major Crimes Act (1885) Federal government
will take jurisdiction over certain crimes
committed in Indian Country)
 Has
existed since time immemorial
 The power to make laws and be governed by
those laws
 The
United States has a trust responsibility
to Indian tribes
 Congress has plenary power over Indians
RACE OF
DEFENDANT
INDIAN
RACE OF
VICTIM
INDIAN
CRIME
JURISDICTION
MAJOR CRIMES
ACT
FEDERAL/TRIBAL
CONCURRENT
ALL OTHER
TRIBAL
(EXCLUSIVE)
FEDERAL
FEDERAL CRIMES
OF GENERAL
APPLICABILITY
INDIAN
INDIAN
NON-INDIAN
NO VICTIM
MAJOR CRIMES
ACT
FEDERAL/TRIBAL
CONCURRENT
OTHER CRIMES
ASSIMILATED
CRIMES ACT
TRIBAL (FEDERAL
IF UNPUNISHED)
VICTIMLESS
TRIBAL EXCLUSIVE
RACE OF
DEFENDANT
RACE OF
VICTIM
CRIME
JURISDICTION
NON-INDIAN
INDIAN
ASSIMILATED
CRIMES ACT;
GENERAL
FEDERAL
FEDERAL
NON-INDIAN
NON-INDIAN
ALL
NON-INDIAN
NO VICTIM
VICTIMLESS
STATE
STATE
 CIVIL
JURISDICTION IN OKLAHOMA INDIAN
COUNTRY
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This is the type of jurisdiction that would allow
a tribe to issue an order of protection
 Generally,
Indian tribes have exclusive
jurisdiction over a case brought by any
person (member, non-member Indian or
non-Indian) against a member Indian
arising in Indian Country. Williams v. Lee
 Indian
tribes have no authority to regulate
hunting and fishing by non-Indians on nonIndian fee land within the reservation.
 Tribe’s sovereignty extends only to selfgovernment and the control of internal
relations.
 Montana dealt with regulatory jurisdiction
but was later extended as the test for tribal
civil adjudicatory jurisdiction by the United
States Supreme Court in Strate v. A-1
Contractors, 520 U.S. 438 (1997)
The inherent sovereign powers of an Indian tribe
do not extend to the activities of non-members
of the tribe UNLESS:
 1)tribes can regulate the activities of nonmembers who enter consensual relationships
with the tribe of its members as through
commercial dealings OR
 2) tribes can exercise civil authority over the
conduct of non-Indians on fee lands within its
reservation when that conduct threatens or
has some direct effect on the political
integrity, economic security or health or
welfare of the tribe
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 As
to non-members on fee land, the US
Supreme Court has announced the Montana
Rule found in Montana v. U.S. that restricts a
tribal court’s authority to regulate matters
involving non-members on fee land inside of
Indian Country
 This
rule was later extended to hold that
tribal courts do not have the power to
hear cases involving the activities of nonmembers on fee lands.
 Majority
of tribes have written Tribal
Constitutions
 Majority of tribes have written tribal codes
 Be aware that some tribal customary or
traditional law may be oral (not in written
form)
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25 U.S.C. § 1302. Constitutional rights
No Indian tribe in exercising powers of self-government shall 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;
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;
subject any person for the same offense to be twice put in jeopardy;
compel any person in any criminal case to be a witness against himself;
take any private property for a public use without just compensation;
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;
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 [1] a fine of $5,000, or both;
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;
pass any bill of attainder or ex post facto law; or
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.
 Each
tribal community may have slightly
different community norms
 Each tribe is unique with unique customs and
traditions
 Educate yourself on these issues, tribal
customs/traditions may not integrate easily
into Anglo legal concepts (cross examination
of elders)
 ICRA’s
6th Amendment: right to jury trial
 Bench trial means no jury
 Difficulties seating a jury in tribal court
 Each
tribal court will have its own
rules/norms-be familiar with these
 Visit the courtroom and observe court
sessions if possible
 Be
on time
 Dress respectfully (what does this mean??)
 Maintain professional conduct at all times
 DO NOT HAVE CONVERSATIONS ABOUT THE
CASE
 Stand
for judge/jury
 Usually sit on the side of the courtroom of
the party who called you as a witness
 If
you have been subpoenaed, bring any
documents that you were ordered to bring
 Bring a copy of the subpoena
 DO NOT BRING CONFIDENTIAL VICTIM
INFORMATION (unless ordered to do so)
 Different
names for different parties
 Different rules of evidence and discovery
 Different standards or burdens of proof
 Different pre-trial procedures
 Swearing
in of the Witness
 Invoking the Rule
 Objections!!
 Sustained/Overruled
 Busy,
busy, busy
 Myopic focus on elements in statute
 Prepare your narrative in advance of meeting
with attorney
 Understand the goal of direct examination
 Court
is hearing the information for the first
time
 Limited time
 Keep examinations succinct
 Do not waste time with repetitive testimony
 Chronological
order is usually most
comprehensible way
 A logical and popular progression is:
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personal background
scene description
action description
exhibits to highlight the testimony
injuries / damages description
 Another
technique: present dramatic /
important testimony early, when court is
most alert.
 Nonverbal
communication is as important as
verbal communication in the court room
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Appropriate attire
How she will enter the courtroom
How she will walk to the witness stand
Where and how she will take the oath
Where she will sit in the witness chair, and how
she should maintain eye contact
 Generally
not permitted on direct
examination
 Usually
not helpful or advisable because
judge perceives testimony is coming from the
lawyer instead of witness
 However,
leading questions are permissible
and useful:
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to cover background introductory matters
to cover uncontested matters
to establish a place in time
to examine a hostile or adverse witness
to examine a confused witness
to establish necessary evidentiary foundations (e.g., was
the exhibit created in the ordinary course of business?)
 Judge
wants to know three things about a
witness:
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Who is the witness?
Why is the witness here?
Why should I believe the witness?
 Next
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establish that the witness:
is trustworthy
does not have a bias, prejudice or motive to testify
other than truthfully
had opportunity to observe the facts about which s/he
will testify
 Pull
the statute and read what elements
must be proven to obtain requested relief
 Prepare your story based upon the elements
 Come prepared to meeting with attorney
 Be prepared for court
 You
are on the witness stand and have just finished
providing great testimony on direct examination.
 Now …. here comes “cross-examination” by the
opposing attorney.
 No need to be afraid! It’s just the other side
exercising their 6th Amendment Constitutional or
ICRA rights to confront and cross-examine
witnesses under our adversarial legal system.
 Some
common perceptions of cross
examination:
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The other side is trying to “knock you down”
They are trying to trick you in to saying something
They are insulting you by trying to make you look bad,
incompetent, etc.
 T.V.
presents a distorted view of crossexamination.
 Attorneys can only go so far before a judge will
stop them.
 Juries will hold overly aggressive cross
examination techniques against an attorney.
 Juries will respect a witness who remains
professional and calm.
 To
put the witness’ testimony to the test for
accuracy.
 To provide the defendant with an opportunity to
clarify the witness’ testimony
 To provide an opportunity to “get at the truth.”
 Questioning
on direct examination is like Fred
Astaire and Ginger Rogers – ideally it is a
smooth, well choreographed dance.
 Goal of direct is to get the witness to paint a
vivid picture using open ended questions.
 Cross-examination is, by its very nature,
confrontational. It attempts to lead the
witness, often to places where she does not
want to go.
 Cross examination can feel like the attorney is
trying to exercise power and control over you –
because she or he is trying to do just that!
 Prosecutor:
Goal is to prove each and every
element of the case beyond a reasonable
doubt on direct examination through witness
testimony & the introduction of evidence.
 Defense Attorney: Goal is to create reasonable
doubt through cross examination of other side’s
witnesses and by putting on their own witnesses
and evidence.
 Cross examination is an important tool used
by criminal defense attorneys to create
reasonable doubt about the evidence
(including your testimony) and to get an
acquittal.
1.) Elicit favorable testimony from the witness – i.e.
getting the witness to agree with the facts that
support the defendant’s case and that create
reasonable doubt
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Accomplished by using leading questions which typically
call for a “yes” or “no” answer
2) Discredit the witness’ testimony.
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This technique is called “impeachment”
 “What
if I want to tell the whole story and it
can’t be answered yes or no?”
 Sometimes the judge will order the witness
to answer the question yes or no anyway.
 Sometimes you will be allowed to answer the
question fully if the judge intervenes
(especially if the victim’s attorney objects
and the objection is sustained).
 “The
defense attorney just made me look so
bad! What can I do?”
 Act professional. Be calm. Be honest. Don’t get
too flustered.
 Remember that you are part of the process to
win justice for the victim, justice for the
community, and consequences for the rapist.
 The prosecutor will have the chance to clarify
things on redirect examination.
 “Impeachment”
is calling into question the
truthfulness of a witness’ testimony
 Impeachment is usually attempted through
cross-examination (although in rare
situations it could also occur on direct)
 Defense
attorneys may forego cross of a
witness if they believe that:
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Nothing can be gained by cross examining that
witness
The witness’ testimony didn’t hurt the
defense’s theory of the case that much
(theory of the case = the defendant’s version
of what happened)
The defense has another witness who can
contradict the witness’ testimony later on and
they don’t want to draw any more attention to
that witness
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Consult the attorney who will be calling you as a
witness to learn:
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what the opposing attorney’s “theory of the case” will be
what the opposing attorney might try to cross you on
what documents that you created that the prosecutor intends to
introduce at trial. Get a copy.
what other related documents, if any, created by other people
that they intend to introduce.
what to bring (or not to bring) to court
Be as clear as possible about what you saw, heard,
did, didn’t do, etc. in connection with the case.
 Have a thorough knowledge of any prior statements
that you made in connection with the case.
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 Be
calm, courteous and professional – don’t let
them rattle you or get flustered.
 Listen to the question carefully.
 Answer only the question that was asked!
 Wait for rulings on objections – the experienced
prosecutor will try to “protect” you.
 Let the attorney and judge know if you don’t
understand a question.
 Let the attorney and judge know if you can’t
remember the question and need it repeated.
 Let them know if the question can’t be
answered yes or no.
 Let them know if you need a break.
 Have
a basic understanding of the history of
American Indians and state/federal systems
 Respect tribal sovereignty
 Respect tribal community norms/customs
and traditions
 Understand your role in the process
 Be prepared
 Be calm
 Be professional