15 Am. Tribal Law 45
Supreme Court of the Eastern Band of Cherokee Indians.
Jose MARTINEZ, Defendant/Appellant.
CASE NOS. 16 CR 1745-47
FILED MARCH 23, 2018

Attorneys and Law Firms
Cody R. White, Tribal Prosecutor, for Tribe/Appellee.
Bridgett Britt Aguirre, Fuquay–Varina, NC, and Brent B. Smith, Asheville, NC, for Defendant/Appellant.
Brenda Toineeta Pipestem, Presiding Chief Justice, Robert C. Hunter, Associate Justice, Bradley B. Letts, Associate Justice, By Appointment


Defendant Jose Martinez appeals from the trial court’s 11 January 2017 order denying his motion to dismiss for lack of jurisdiction to prosecute non-Indian, non-citizens. After careful review, we affirm.


Statement of Facts

Defendant was charged with aggravated sexual abuse, sexual abuse of a minor, and first degree child abuse that occurred within the boundaries of the Qualla Boundary of the Eastern Band of Cherokee Indians (“EBCI”). Defendant is neither a tribal member of the EBCI nor a citizen of the United States. The minor victim was a 12–year old minor at the time of the alleged offense.

On 15 December 2016, Defendant moved to dismiss the charges for lack of jurisdiction, asserting that the Tribe’s exercise of jurisdiction over non-Indian, non-citizens has not been granted to the Tribe by the United States. Defendant acknowledged this Court’s decision in Eastern Band of Cherokee Indians v. Torres, 4 Cher. Rep. 9, P10, 2005 WL 6437828 (N.C. Cherokee Sup. Ct. Apr. 12, 2005) finding that the Tribe has inherent jurisdiction to prosecute non-Indian, non-citizens who commit crimes on tribal land, but stated that “[a] lot has changed in the United States since that decision” and specifically relied upon the Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to argue that his case should be dismissed for lack of jurisdiction.

The trial court denied Defendant’s motion to dismiss, and Defendant appealed to this Court.


Interlocutory Nature of Appeal

Prior to discussing the merits of Defendant’s arguments, we must first determine whether the trial court’s order is immediately appealable. This case involves an appeal from a trial court’s order denying Defendant’s motion to dismiss, which does not constitute a final determination on the merits. Therefore, Defendant’s appeal is interlocutory. State v. Shoff, 118 N.C. App. 724, 725, 456 S.E.2d 875, 876 (1995) (“The order of the trial court denying [the] defendant’s motion to dismiss is not a final judgment and is, therefore, interlocutory.”).

Cherokee Code § 7–14(a) (2017) states that, “[p]roceedings in the courts of the Judicial Branch shall be governed by the North Carolina Rules of Civil Procedure, the North Carolina Rules of Evidence, and the North Carolina Rules of Appellate Procedure.” Pursuant to Cherokee Code § 7–2(e), this Court has appellate jurisdiction “to certify and decide any appeal from the Trial Court.” Generally, interlocutory criminal orders are not immediately appealable. State v. Fowler, 197 N.C. App. 1, 5, 676 S.E.2d 523, 531 (2009). However, appellate review of interlocutory orders where there is no appeal of right may be allowed by a writ of certiorari if the order affects a substantial right. Cherokee Supreme Court Rules of Appellate Procedure 11(a)(1)(i); State v. Jones, 67 N.C. App. 413, 416, 313 S.E.2d 264, 266 (1984); N.C. R. App. P. 21(a)(1). Courts “have the authority pursuant to North Carolina Rule of Appellate Procedure 21(a)(1) to treat the purported appeal as a petition for writ of certiorari and grant it in [the court’s] discretion.” Luther v. Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008) (internal quotation marks omitted).

A substantial right is “one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.” Blackwelder v. Dep’t. of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983). “It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context[.]” Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

This case involves a fundamental determination of whether the Tribe has authority to prosecute individuals who are not citizens of the United States if those individuals commit crimes within the EBCI’s territorial borders. It touches on the Tribe’s ability to protect and seek justice for its tribal members. Related and necessary to resolution of this matter is a consideration of whether Defendant’s challenge to this Court’s previous decision in Torres, which determined that the Tribe could assert jurisdiction over non-Indian, non-citizen defendants who commit crimes on tribal land, is still valid in light of subsequent United States Supreme Court decisions.

Accordingly, we hold that the answer to the legal question raised in this appeal affects a substantial right. Therefore, in our discretion, we will treat Defendant’s brief as a petition for writ of certiorari and allow it.



On appeal, Defendant acknowledges this Court’s prior decision in Torres, 4 Cher. Rep. at P10, which held that the Tribe’s jurisdiction extends to non-Indian, non-citizens, remains unaltered. However, Defendant contends that “[a] lot has changed in the United States since that decision” and that the Torres decision is no longer consistent with subsequent authority, specifically, the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We disagree.


I) Standard of Review

To determine the standard of review of the trial court’s order denying Defendant’s motion to dismiss, we are “bound by the laws, customs, traditions, and precedents of the [EBCI]. If there is no applicable Cherokee law, the Judicial Branch shall look next to Federal law, then to North Carolina law, and finally to the law of other jurisdictions for guidance.” Cherokee Code § 7–2. Issues involving jurisdiction are subject to de novo review. Riggins v. O’Brien, 101 Fed. Appx. 395, 396 (2004) (4th Cir.); see also Nat’l Util. Review, LLC v. Care Ctrs., Inc., 200 N.C. App. 301, 303, 683 S.E.2d 460, 463 (2009).


II) Jurisdiction Over Non–Indian, Non–Citizen Defendants

This Court answered in the affirmative the question of whether the Tribe has the authority to prosecute non-Indian, non-citizen criminal defendants in Torres. Unless Oliphant and its progeny upon which Torres is based conflicts with subsequent controlling authority, Torres retains its precedential authority. Cherokee Code § 7–2(d).


III) United States Supreme Court Precedent

In 1978, the Supreme Court decided Oliphant and concluded that tribes do not have inherent jurisdiction to punish non-Indian citizens of the United States. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 192, 98 S.Ct. 1011, 1013, 55 L.Ed. 2d 209, 211 (1978). The reasoning behind the Supreme Court’s decision, though controversial at the time and at present, is rooted in the Supreme Court’s concern that tribal courts would not offer the full protections to criminal defendants that they would be entitled to under federal law and the Constitution:
By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.... Such an exercise of jurisdiction over non-Indian citizens of the United States would belie the tribes’ forfeiture of full sovereignty in return for the protection of the United States.
Id. (Emphasis added). The language of Oliphant clearly states that the Supreme Court’s holding is limited to the exercise of tribal jurisdiction over non-Indian citizens of the United States.

Although there have been subsequent Supreme Court cases concerning tribal jurisdiction, none of these cases explicitly overturned Oliphant, nor have they addressed the issue before this Court of whether a tribal court may exercise jurisdiction over a non-Indian, non-citizen defendant based upon the inherent sovereignty possessed by an Indian tribe. See Duro v. Reina, 495 U.S. 676, 685, 110 S.Ct. 2053, 2059–60, 109 L.Ed. 2d 693, 703–704 (1990) (concluding that tribal courts do not have authority to prosecute non-member Indians), superseded by statute as recognized in United States v. Lara, 541 U.S. 193, 210, 124 S.Ct. 1628, 1639, 158 L.Ed. 2d 420, 435 (2004) (determining that tribes do have the authority to prosecute non-member Indians pursuant to the changes to the Indian Civil Rights Act passed by Congress).


IV) The Torres Decision

In 2005, this Court faced the same jurisdictional question presented in the current appeal. The defendant in Torres was a citizen of Mexico who was charged with child abuse and violating various traffic laws on Cherokee tribal land. 4 Cher. Rep. at P5. The Torres Court first looked at Chapter 7, section 2 of the Cherokee Code, which states: “The Judicial Branch shall not have jurisdiction over matters in which the exercise of jurisdiction has been specifically prohibited by a binding decision of the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit or by an Act of Congress.” Id. at P6. This Court found no United States Supreme Court decision, Fourth Circuit decision, or Congressional action “specifically prohibiting the exercise of criminal jurisdiction by Indian tribal [c]ourts over non-Indians who are not citizens of the United States.” Id. The Torres Court noted that there were four United States Supreme Court opinions that addressed tribal jurisdiction. Id. at P6–7. However, all of these decisions involved the exercise of jurisdiction over United States citizens. Id. The defendant in Torres was not a United States citizen; therefore, federal precedent did not prevent the EBCI from exercising its inherent authority to prosecute non-Indian, non-citizen defendants. Id. at P9.

In rejecting the defendant’s argument that Oliphant prohibits the exercise of tribal jurisdiction over non-citizens, the Torres Court stated that:
The decision in Oliphant holds that the inherent sovereign power of criminal jurisdiction of tribal courts over non-Indians has not been specifically curtailed by treaty or act of Congress, but that such jurisdiction is inconsistent with the status of tribes as depend[e]nt sovereign nations. As set forth above, we conclude that Oliphant is not a specific ruling as to tribal jurisdiction over non-Indian aliens. We do not find any authority (by treaty, statute or judicial opinion of the United States Supreme Court or Court of Appeals for the Fourth Circuit) holding that tribal criminal jurisdiction over non-Indian aliens is inconsistent with the status of Indian tribes as depend[e]nt sovereign nations. The Cherokee Nation had such jurisdiction in 1492; it has it today.
The facts of this case demonstrate the necessity of preserving the criminal jurisdiction of the Eastern Band of Cherokee Indians over non-Indian aliens of the United States in order to protect the safety, health, economic development, liberty and the general welfare of the Eastern Band of Cherokee Indians and all other people who live, work or visit on Tribal lands. The records of the Cherokee Court disclose that aliens of the United States are seeking and receiving the protection of the Cherokee Court in criminal cases arising on the Qualla Boundary against enrolled members of the Eastern Band of Cherokee Indians. To allow criminal jurisdiction when an alien is the victim and deny jurisdiction when an alien is the perpetrator, would indeed be inconsistent with the status of the Eastern Band of Cherokee Indians as a depend[e]nt sovereign nation.
Id. at P10–11. In sum, “Oliphant does not control the Torres appeal. Oliphant concerns Indian tribal court jurisdiction of criminal cases against non-Indian citizens of the United States. Torres concerns Indian tribal court jurisdiction of criminal cases against non-Indian aliens of the United States.” Id. at P9.

Since this Court’s 2005 decision in Torres, the United States Supreme Court, the Fourth Circuit, nor Congress has addressed the precise issue of whether a tribe has inherent authority to prosecute non-Indian, non-citizens.1 This Court stands by its analysis and decision in Torres—that it is based upon a proper interpretation of Oliphant and that the Tribe retains its inherent authority to protect the safety and liberty of its members. The United States Supreme Court’s overriding concern in Oliphant was that tribal courts would be unable to provide the same protections to citizen defendants that those defendants would be entitled to in federal court. As noted in Torres, this is no longer a legitimate concern:
The Cherokee Court provided Torres with all the protection and assistance that he would have received in federal or state court, including appointment of counsel, due process, speedy trial, bond and right of appeal. In addition, after defendant exhausts all of his remedies in the Cherokee Court[s], he may petition the United States District Court for a writ of habeas corpus and federal appellate review. So, Torres, or any [non-citizen], is not prejudiced by receiving a trial in tribal court.
Id. at P10.These same rights which were afforded to the defendant in Torres in 2004 were also provided to Defendant in this case some 12 years later. Today, the Cherokee Tribal Court—as it did nearly two decades ago—provides a non-Indian, non-citizen defendant with the rights and protections he would receive in both state and federal courts. These rights continue to include an opportunity to be heard, the right to counsel, pre-trial release, speedy trial, due process, right of confrontation, right to a trial by a jury, the protections provided under the Rules of Evidence, and the right to appeal from the trial court to this Court. And, in this case, Defendant has availed himself of nearly all the aforementioned rights.

Furthermore, contrary to Defendant’s argument that a lot has changed since Torres that would support a different conclusion by this Court, this Court continues to take note that federal policy fosters “greater tribal autonomy” and “strong and stable tribal governments” as evidenced by recent congressional actions. Id. at P10–11. For example, the Tribal Law and Order Act (“TLOA”), passed in 2010, provided legislative authorities and resources to Tribes to enhance their tribal justice systems to safely and effectively provide public safety in Indian Country and to reduce the prevalence of violent crime in Indian Country. TLOA authorized enhanced sentencing by Tribal justice systems that provided the following protections for defendants in tribal courts: right to effective assistance of counsel at least equal to that guaranteed by the U.S. Constitution; the right to appointed counsel in the case of indigent defendants; the right to proceedings before law trained judges licensed to practice law; publicly available criminal laws, rules of evidence and rules of criminal procedure; and the maintenance of the record of all of the criminal proceedings. 25 U.S.C. § 1302(c). The EBCI was the second tribe to implement the enhanced sentencing authorized under TLOA in August 2012. Additionally, the Violence Against Women Act (“VAWA”), passed in 2013, recognizes the inherent power of federally recognized tribes to exercise special domestic violence criminal jurisdiction over non-Indian individuals for domestic violence crimes committed on tribal land against enrolled members.2 25 U.S.C. § 1304.


V) Padilla

Defendant’s argument that the United States Supreme Court’s decision in Padilla has any bearing on this issue is without merit. Defendant specifically argues that the “penalty of deportation exceeds the authority to punish granted to tribes under the Indian Civil Rights Act.” However, according to the U.S. Supreme Court:
“We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States, 149 U.S. 698, 740 [13 S.Ct. 1016, 37 L.Ed. 905] (1893); but it is not in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez–Mendoza, 468 U.S. 1032, 1038 [104 S.Ct. 3479, 82 L.Ed.2d 778] (1984), deportation is nevertheless intimately related to the criminal process.... Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.
559 U.S. at 365–366, 130 S.Ct. 1473. Padilla concerns the constitutional guarantees of effective counsel when non-citizen defendants are offered plea deals and, specifically, the need for defense counsel to inform clients about possible deportation consequences of a plea deal. 559 U.S. at 369, 130 S.Ct. 1473.3 The issue of jurisdiction over the non-citizen defendant was never contested in Padilla, only the standard of counsel once the trial proceedings began. The issues raised by Padilla are not before this Court.



In light of our belief that Torres is consistent with both United States Supreme Court precedent then existing in 2005 and today, coupled with recent federal legislative actions concerning the ability of the tribes to punish those who commit crimes within their borders, we see no reason to overrule Torres or conclude differently.

Accordingly, we hold that the EBCI possesses the jurisdiction to prosecute non-Indian, non-citizens, such as Defendant, who commit crimes on Cherokee lands and deny Defendant’s motion to dismiss.

The Court notes the record is silent on the issue of whether the minor victim is an Indian and, therefore, further instructs the trial court determine the status of the minor victim and whether the Cherokee Court has subject matter jurisdiction.


All Citations
15 Am. Tribal Law 45



The Torres decision was cited in a 2014 law review article that examined how tribal courts are interpreting tribal law by using international human rights law. ESSAY: Indigenous Peoples and the Jurisgenerative Moment in Human Rights, 102 Calif. L. Rev. 173 (2014).


The Eastern Band of Cherokee Indians authorized the prosecution of non-Indians in the Cherokee Tribal Court under the Violence Against Women Reauthorization Act of 2013 when they enacted Tribal Council Resolution No. 526 (2015). By doing so, the Tribe undertook to comport with the requirements mandated in the VAWA which require that the Cherokee Tribal Court:
1. Protect the rights of defendants under the Indian Civil Rights Act of 1968 (including the right to due process);
2. Protect the rights of defendants described in the Tribal Law and Order Act of 2010, by providing:
a. Law-trained tribal judges who are also licensed to practice law;
b. Effective assistance of counsel for defendants;
c. Free, appointed, licensed attorneys for indigent defendants;
d. Publicly available tribal criminal laws and rules; and
e. Recorded criminal proceedings.
3. The Eastern Band of Cherokee Indians accepted the responsibility to include a fair cross-section of the community injury pools and not systematically exclude non-Indians.
4. Finally, in every case inform defendants ordered detained by a tribal court of their right to file federal habeas corpus petitions.
Violence Against Women Reauthorization Act 25 U.S.C. § 1304 (2013).


The Padilla requirement that defense counsel inform clients that they may be subject to deportation if they take a plea has already been incorporated into the pre-printed “Transcript of Plea” form used by the trial courts.