Clarification and training on criminal jurisdiction

By HCN Attorney General Amanda L. WhiteEagle

The Ho-Chunk Nation enacted its criminal code on May 5, 2015.  The Ho-Chunk Nation does not investigate or prosecute cases that occurred prior to that time.  The reasoning behind this position is simple: the acts were not a violation of Ho-Chunk Nation law, if committed prior to May 5, 2015. Written laws provide the authority for positions promulgated by the Nation.  The Nation, including its police department and Department of Justice, would be acting outside of the scope of the law, if it were to address potential violations prior to the Nation’s criminal code enactment.  Prior to enactment, the Ho-Chunk Nation had concurrent criminal jurisdiction with the State of Wisconsin; nonetheless, the State determined the criminality of actions because the Nation had not legislated concerning criminal jurisdiction. 
For example, if an individual contacts the police today regarding an act of “criminal recklessness” that occurred on April 15, 2015, the Nation will not launch an investigation or file a case regarding the underlying act involving “criminal recklessness” in Tribal Court.  However, the Nation encourages reporting and may work with its sister jurisdiction in some instances.  The CONSTITUTION OF THE HO-CHUNK NATION indicates that the “Nation, in exercising its powers of self-government, shall not pass any . . . ex post facto law.”  CONST., Art. X, §1.  This means that the Nation cannot retroactively enforce a criminal code prior to its enactment, as individuals neither had notice as to what he or she may have been violating, nor potential repercussions of such violations.
Criminal jurisdiction in the State of Wisconsin is very complex, due in large part to aspects of concurrent jurisdiction, which is pursuant to Public Law 83-280, commonly known as PL 280.  If this topic interests you or you would like to know more information about the Nation’s criminal jurisdiction and PL 280, then please consider attending the Nation’s Public Law 280 training on April 17-18, 2018 at Ho-Chunk Gaming-Wisconsin Dells.  Currently, the Ho-Chunk Nation maintains five (5) police officers, as well as a prosecutor and paralegal.  The Ho-Chunk Nation Department of Justice welcomes Prosecutor Nicholas Layland, who is assisting with the prosecution of all new criminal cases within the Nation’s jurisdiction.